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Supreme Court of Vanuatu |
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CIVIL CASE No.93 OF 2002
IN THE MATTER OF: TRADE DISPUTE ACT [CAP. 162]
IN THE MATTER OF: VANUATU BROADCASTING AND TELEVISION CORPORATION ACT No. 3 OF 1992
IN THE MATTER OF: ARBITRATION BOARD AWARD DATED 20 MAY 2002
THE BOARD OF VANUATU BROADCASTING AND TELEVISION CORPORATION
AND:
ARBITRATION BOARD
(C/- Prime Minister’s Office, Vila.)
First Defendants
AND:
THE MINISTER OF INTERNAL AFFAIRS
(c/- Vanuatu Government, Vila.)
Second Respondent
AND:
Mr. BRUNO LEINGKONE and Others
Coram: Chief Justice Lunabek
Counsels: Mr. George Boar for the Applicants
Mr. George Nakou for the First and Second Respondents
Mr. Ishmael Kalsakau Third Respondents
REASONS FOR JUDGMENT
Nature of the Action and Relief
This is an application for judicial review. The plaintiff, with leave of the Court, applies for the following relief:
(a) An Order of certiorari to quash the Arbitration Board Award dated 20 May 2002;
(b) An Order of prohibition to restrain the coming into effect of the Award of the Arbitration Board;
(c) A Declaration that the Arbitration Board Award is not binding on the plaintiff.
The plaintiff is a statutory corporation established under the Vanuatu Broadcasting and Television Corporation Act No.3 of 1992. The plaintiff is the employer of the third defendants. The second defendant is the Minister responsible for the employment who appointed the members of the first defendant, an Arbitration Tribunal. The third defendants are individuals who are registered members of the Vanuatu National Workers Union (V.N.W.U.).
GROUNDS
The grounds of the plaintiff/applicant’s application are as follows:
(a) The respondent Award contradicts the plaintiff’s dismissal of the former VBTC employees on 11 September 2001, 28 September 2001 and October 2001.
(b) The plaintiff has not voluntarily consented to any Arbitration Board pursuant to Section 11 of the Trade Dispute Act [CAP.162] and did not make submission thereto.
(c) There is no industrial dispute between the plaintiff and VBTC dismissed employees to justify constituting an Arbitration Board.
(d) The event leading to the establishing of the Arbitration Board as such was irregular and tainted with undue influence, threat, pressure and distress such that these events render the Arbitration Board Award a nullity.
The first and second defendants filed a defence. They say that the application is vexatious and frivolous and without legal basis. They deny that the Chairman of the plaintiff was forced to sign the Consent Deed to go before the Arbitration Tribunal. They say there was a dispute within the meaning of the Trade Dispute Act (Cap 162).
CROSS-APPLICATION
The third defendants filed a cross-application seeking leave to apply for Orders:
(1) of certiorari quashing a decision made by the applicant/respondent on the 29 May 2002 refusing to pay the third defendants salaries.
(2) Of mandamus directing the applicant to pay the third defendants salaries from the 20 May 2002 and all other awards upon the terms determined by the Arbitration Award of 20 May 2002.
(3) Prohibition refraining the applicant from refusing to pay the third respondents salaries otherwise than by Order of the Court.
(4) That pending the determination of the substantive cause herein that a stay be granted against the effect of the applicant’s decision of 29 May 2002 against each and all of the third defendants.
GROUNDS
The grounds of the third defendants’ application are as follows:
(1) that by the applicant’s actions, the third defendants have been denied the application of the principles of natural justice.
(2) That the purported exercise of power by the applicant was made ultra vires:-
- (a) the Vanuatu Broadcasting and Television Act No.3 of 1992 in particular;
- (b) the Trade Dispute Act [CAP.162] in particular:
- (i) sections 1, 11 to 26 and 28.
(3) that the applicant has chosen to exercise their power when they have no authority under the Acts referred in (b) to unilaterally and arbitrarily:
- (i) refuse to pay the third defendants ; and
- (ii) withhold their salaries despite the award of the first defendant.
On 2 July 2002, the Court issued the following ORDERS pending the final adjudication of the substantive matter:
CHRONOLOGICAL BACK GROUND.
On or about 22 May 2001, the third defendants/employees of the plaintiff/employer submitted a list of their grievances regarding their employment terms and conditions to the plaintiff. The list comprises of:
The third defendants/employees are registered members of the Vanuatu National Workers Union (V.N.W.U.).
On the following dates: 29 May 2001, 6 June 2001 and 3 July 2001, the plaintiff and the V.N.W.U. held 3 different meetings but no settlement was able to be reached.
On 5 July 2001, the V.N.W.U. submitted to the Department of Labour and to V.B.T.C. Board (plaintiff) a Notice entitled “Notice of Other Industrial Action” by the employees failing an acceptable settlement of the dispute between the VBTC and its employees.
On 12 July 2001, the Commissioner of Labour appointed a Senior Labour Officer, John Tasso, as conciliator to mediate between the plaintiff and the third defendants in respect to overtime allowances and unpaid wages. The conciliator held various meetings between the plaintiff and the third defendants and their respective representatives.
On 16 August 2001, the plaintiff and the third defendants signed a Memorandum of Understanding, witnessed by the conciliator to resolve the dispute arising between the parties.
On 22 August 2001, a conciliation meeting took place attended by the disputing parties and the conciliator.
On 24 August 2001, the plaintiff and the third defendants reached a Memorandum of Settlement on the following grievances of the third defendants:
The relevant details of the Memorandum of Settlement with effect of an Award between the plaintiff/VBTC and the V.N.W.U. on behalf of the third defendants who are its registered members, are reproduced below:
“Overtime
It is evident that there is no proper records kept therefore, suggestions were voiced for standard system be designed with the involvement of Union by 28 August 2001, staff members of VBTC can enjoy the privileges.
Housing allowance
VBTC Board meeting on 5/7/2001 had agreed to increase from VT6,000 to VT10,000 monthly could be barked on condition the receipts verification.
On Wednesday 29 August 2001, staff members of VBTC should submit their relevant documents regarding and payment will be processed accordingly, referring to the date of submission.
There is understanding that no house allowance be paid to staff members unless there is proven proof (sic).
From year 1993 to 1997 it was agreed that such allowances will be paid out if the financial situation improves at the rate of VT6,000 monthly.
Staff salary
At the meeting, it was understood that unsettled wages has been paid in full.”
On 11 September 2001, the plaintiff/employer issued notices of termination letters to its temporary staff and to come into effect on 28 September 2001.
On 8 October 2001, following the termination of the temporary employees of the plaintiff on 28 September 2001, the third defendants went on strike.
On 19 October 2001, the following events happened:
On 1 November 2001, the Labour Commissioner wrote to the Chairman of the plaintiff, Mr. William Mahit and the Secretary General of the V.N.W.U., Mr. Ephraim Kalsakau to attend an urgent meeting.
On 2 November 2001, Mr. William, the then Chairman of the plaintiff wrote to the Commissioner of Labour that due to short notice he cannot attend but he advised that he will take the matter up to the VBTC Board.
On 5 November 2001, Mr. William Mahit, the then Chairman of the plaintiff Board, wrote a letter to the Commissioner of Labour and copied to Minister of Internal Affairs and the Attorney General that pursuant to the decision of the Board of the plaintiff, there is no dispute and so the matter is closed for further negotiation.
Sometimes in February 2002, Mr. Petersen Ieri was appointed new Chairman of the plaintiff’s Boar of Directors.
On 15 March 2002, the new Chairman of the VBTC wrote to the Hon. Prime Minster and advised that the plaintiff Board of Directors will reinstate the strikers. Letters of reinstatement were sent to the strikers.
On 25 March 2002, the Chairman of VBTC Board revoked the reinstatement appointment of the strikers made on 15 March 2002.
On 26 March 2002, the Prime Minister’s private secretary, Mr. Tamata Ravo asked the Chairman of the VBTC, Mr. Peter Ieri to come up and briefed the Prime Minister on the dispute between the plaintiff and the third defendants/ strikers. Mr. Peter Ieri briefed the Prime Minister on the same date in the afternoon. He was accompanied by a Board member James Wamle. Recourse to arbitration means was discussed and considered as the only way to resolve the dispute (although as it will be seen, there are some dispute as to the consent of the plaintiff Board of Directors to go on arbitration).
It was agreed that a meeting had to be arranged with the strikers to advise them of the VBTC’s resolution and such a meeting was held on Wednesday 27 March 2002 at the VBTC premises.
On 27 March 2002, the meeting took place. At the meeting, the Chairman of the plaintiff, and two (2) other members, all strikers/third defendants and the private secretary to the Prime Minister and the First Political Advisor of the Minister of CRP were attending the said meeting.
What was actually said during the meeting by the Chairman of the plaintiff leading up to the appointment of the members of the arbitration Tribunal was disputed and challenged.
On 27 March 2002, a document called “EXPRESSION OF CONSENT” was signed by Mr Willie Toa, representative of the V.N.W.U. on behalf of the strikers, the representative of the Government of Vanuatu and by the chairman of the plaintiff, Mr Peter Ieri in the circumstances as described in the evidence.
The circumstances leading up to the signing of this document are in dispute. The chairman of the plaintiff challenged that he has signed the document under pressure. He said he was forced to sign the document. This was denied by the Private Secretary to the Prime Minister, Mr Tamata Rovo.
On 2 April 2002, the Commissioner of Labour wrote to the Director General of the Internal Affairs and advised that there is urgent need to set up an Arbitration Board.
On 8 April 2002, the VBTC requested the Government to supply senior civil servants to assist the VBTC in respect to the ongoing dispute. The government agreed and forwarded the names of three civil servants who were appointed on the same date.
On 4 May 2002, the Minister of Internal Affairs appointed three (3) members to constitute the Arbitration Board.
On 9 April 2002, the three appointed members, accepted their appointment.
On 29 May 2002, the Arbitration Board released the award which was deemed to have come into force on 8 May 2002.
THE ISSUES
The issues for the determination by this Court are:
THE EVIDENCE AND FINDINGS
The evidence are adduced by way of sworn affidavit material read and taken as evidence in chief. The deponents were cross-examined by the other side.
The plaintiff filed an affidavit of the Chairman of the plaintiff’s Board of Directors on 9 July 2002 in support of the application.
The first and second defendants filed two (2) affidavits in support of their defence:
The third defendants filed two (2) affidavits of Bruno Leingkone on 28th June 2002 and 9 July 2002 in support of their defence.
There is no substantial factual dispute, save for the facts surrounding the consent of the Chairman of the plaintiff to go to the Arbitration Tribunal.
I have read and considered the affidavits of the witnesses and their evidence under cross-examination, the following facts are established.
The Chairman of the plaintiff, Mr. Peter Ieri said he is agreeing in principle to go to the Arbitration Tribunal. However, he has to get the approval of the V.B.T.C. Board before he can sign the expression of consent. He said he signed the expression of consent on a Sunday. The circumstances leading to his signature on the document is that a Philip Tasale (one of the third defendants) and another person came and asked him to sign the expression of consent. He refused to sign such a document. He told them that unless the plaintiff Board of Directors agreed to an Arbitration Board, he could not sign the document. He said five minutes after Philip Tasale and his colleague left him, he was surprised when Tamata Rovo of the Prime Minister's Office brushed the “Expression of Consent” in his face and demanded that he signed agreeing to an Arbitration Board. Mr. Peter Ieri refused to sign stating the plaintiff Board of Directors had not agreed to an Arbitration Board. He stated that Mr. Tamata Ravo refused to hear him and anything to do with the plaintiff Board of Directors. He stated further that Mr. Tamata told him he was his boss and he should obey him. He finally stated that Mr. Tamata threatened to sack him if he did not sign the document. He said he signed the “Expression of consent” under duress and pressure and in fear of loosing his job as Chairman of the plaintiff Board of Directors. He then informed the plaintiff Board of Directors about the actions of Mr. Tamata Rovo.
Mr. Tamata Rovo denied the allegations made by Mr. Peter Ieri that he did threatened to sack Peter Ieri if he did not sign and the allegations are false. Mr. Rovo stated that Mr. Ieri signed the Expression of Consent of his own free will and without any duress or pressure.
At the outset, what transpires from the evidence is that the idea to go to the Arbitration Tribunal has been discussed and considered and accepted by the third defendants and the representatives of the Government. However, the plaintiff Board of Directors are yet to discuss and consider the suggestion to bring the differences between the respective parties before the Arbitration Tribunal. That position is clear from the evidence of Peter Ieri. The consideration of all the events lead up to some misunderstanding. On the factual issue of consent, the evidence of Mr. Peter Ieri is to be preferred on the balance of probabilities. The Plaintiff Board of Directors did not consent to bring the differences to the Arbitration Tribunal as the Plaintiff’s position was that there was no dispute.
On the face of the document entitled “Expression of Consent”, there are 3 signatures:-
One for the representatives and on behalf of the third defendants with the seal of V.N.W.U. One for the representatives of the Government with the seal of the Prime Minster’s Office and one for the Plaintiff with the signature of Peter Ieri on the document but without the seal of the plaintiff Board of Directors as the Chairman signed the said document on Sunday and outside his office.
Further, after Mr Ieri signed the “Expression of consent”, he did inform the members of the Plaintiff’s Board of the actions of Mr Tamata Rovo leading to his signature on the said document.
He stated further in his evidence that the members of the Board did not agree for the Plaintiff to go to the Arbitration Tribunal because, there is no longer any dispute. The evidence of Mr Peter Ieri show that when he received a copy of a letter from the Hon. Prime Minister addressed to the Minister of Internal Affairs stating that both the Plaintiff and third Defendants had agreed to an Arbitration Board to resolve some of dispute between the Plaintiff and the third Defendants, he wrote a letter on 10 April 2002, to the Minister of Internal Affairs. In that letter, he stated that:
1) VBTC Board of Directors has not agreed to an Arbitration Board;
2) VBTC strikers were terminated on 22 October 2001;
3) VBTC has no dispute with the Third Defendants.
Finally , the Arbitration Board did sit to hear submission from the Third Defendants but since the Plaintiff Board of Directors did not agree to such Arbitration Board nor has there been any dispute between the Plaintiff and the Third Defendants, the Plaintiff Board of Directors did not attend and make submission to the Arbitration Board. This is shown by the records of the Arbitration Board leading up to the award.
It is also established as fact that the Third Defendants/employees are registered members of the Vanuatu National Workers Union (V.N.W.U). On 22 May 2001, they submitted with the assistance of the Union, a list of grievances regarding their employment terms and conditions to the Plaintiff. They listed 7 specific grievances. A conciliator was appointed by the Commission of Labour on 12 July 2001, under section 8 of the Trade Dispute Act (Cap 162). A dispute within the meaning of section 1 of the Trade Dispute Act exist. A memorandum of settlement was signed by the Plaintiff and the Representative of the Third Defendants on 24 August 2001. The Memorandum of Settlement was signed on 3 specific grievances: - Overtime payments, Housing Allowances and Staff Wages. Five (5) other grievances are still outstanding. The Memorandum of Settlement once agreed and signed is an award and become binding on the respective parties. On 11 September 2001, the Plaintiff issued notices of termination letters to its temporary staff which would come into effect on 28th September 2001.
That is the critical starting point culminating to the current Saga between the Plaintiff, the government and the Third Defendants.
On 8 October 2001, the Third Defendants were on strike on the basis that there was a dispute between the Plaintiff and themselves.
That leads me to consider the three (3) questions asked to be determined by the Court.
Whether there was a Trade Dispute between the Plaintiff/employer and the Third defendants/employees, within the meaning of the Trade Dispute Act (Cap 162).
Section 1 of the Act says:-
““Trade Dispute” means a dispute between employers and workers or between workers and workers, which is connected with one or more of the following:-
(a) the terms and conditions of employment, or the physical conditions in which any workers are required to work;
(b) engagement or non-engagement, or termination or suspension of employment or the studies of employment, of one or more workers;
(c) matters of discipline;
(d) the membership or non-membership of a Trade Union on the part of a worker;
(e) facilities for officials of trade unions;
(f) machinery for negotiation or consultation, and other procedures relating to any of the foregoing matters, including the recognition by employers or employers’ associations of the right of a Trade Union to represent workers in any such negotiation or consultation or in the carrying out of such procedures .“
The Plaintiff submitted that there is no dispute within the meaning of the Trade Dispute Act (Cap 162). The dispute has been resolved by the signing of the Memorandum of settlement on 24 August 2001. Prima facie, the submission seems to have a solid ground. However, on a more deeper thought, I think the answer to the first question must be in the affirmative. The fact is that after the memorandum of settlement were reached and signed, the terms of settlement were not complied with by the Plaintiff. This constitutes a failure on the part of the Plaintiff/employer. Furthermore, the Plaintiff decided to terminate some of the Third Defendants, who are Temporary Staff at its employ without first honouring the terms of the Memorandum of settlement regarding its Temporary Staff. The termination at this point of time constitutes a refusal from the Plaintiff/employer to fulfil the terms of the memorandum of settlement which have the effect of an award of the Arbitration Board (Section 10 (1) ) of the Trade Dispute Act.
I am accordingly of opinion, on the whole, that the failure or refusal of the Plaintiff as an employer to observe and comply with the agreed terms of the Memorandum of settlement is a “dispute” within the meaning of Section 1 of the Trade Disputes Act (Cap 162). My answer to question 1 is: yes.
(a) Whether the setting up and appointment of the Arbitration Board were justified; and
(b) Whether there was any consent from the Plaintiff.
I deal with question 2 (a) and 2 (b) together.
The Minister responsible under the Trade Disputes Act constituted the Arbitration Board on the basis of Sections 11 and 12 of the Act.
Section 11 of the Trade Dispute Act says:
“11. If the Commission considers that there is a reasonable prospect of bringing about a settlement of a dispute, in whole or in part, by arbitration, he may, subject to a written consent of all the parties to the dispute, recommend to the Minister that the dispute, or any outstanding part thereof, be referred to a board of arbitration.”
By Section 11, the appointment of the Arbitration Board is made following a formal recommendation by the Commissioner of Labour subject to the written consent of all parties to the dispute.
Section 12 provides:
“Upon the receipt of the Commissioner’s recommendation under section 11, the Minister may refer the dispute, or any outstanding part thereof, to a board of arbitration which shall consist of -
(a) a sole arbiter appointed by the Minister; or
(b) a chairman and an equal number of members experienced in industrial relations as representatives of employees and representatives of workers respectively, all appointed by the Minister”.
The evidence shows that there was a dispute between the plaintiff and the third defendants within the meaning of the Trade Disputes Act.
The existence of a trade Dispute within the meaning of the Act is the requirement for the Commissioner of Labour to recommend to the Minister, the constitution of an arbitration board. The Commissioner of Labour had made a recommendation to the Minister to this effect on 2 April 2002 on the basis of the “expression of consent” signed by all parties to the dispute on 27th March, 2002.
Section 26 of the Trade Disputes Act says:
“26. Where a Trade Dispute, which, in the opinion of the Minister, constitutes a threat of a serious disruption of, or interference with, the proper and orderly maintenance or management of an essential service, exists or is apprehended, the Minister shall forthwith take such action and issue such directives as may appear to him necessary or conducive to bringing about a settlement of the dispute by conciliation or arbitration in accordance with the provisions of Part III”.
In the present case, the Minister has declared on 19 October 2001 the Broadcasting Services as essential services in accordance with Section 26 of the Act. The constitution and appointment of the members of the Arbitration Board under section 26 of the Act must be made in accordance with Part III. Sections 11 and 12 are within Part III of the Trade Dispute Act.
I accept the submission made on behalf of the Third Defendants that Section 26 was designed to ensure that the State had control of its constitutional duty to all citizens of this country to ensure the dearly lives of the people of the Republic where it concerned essential services did not become disrupted or that the Government would not be held captive to the needs of groups or factions within society in the operation of the country’s essential services.
However, I do not accept the submission that the power of the Minister under Section 26 to appoint an arbitration, can be exercised without obtaining the written consent of the parties in the dispute.
The power to appoint an Arbitration must be done by the Minister in accordance with Part III of the Trade Dispute Act. Sections 11 and 12 are the relevant sections for the present purpose.
In the present case, the facts are that the Plaintiff has not voluntarily consented to an Arbitration Board. The chairman of the Plaintiff was forced to signed the “Expression of Consent”. The Plaintiff is entitled to rely on the non est factum defence. The consent is obtained by threats and undue influence. It is therefore vitiated and is therefore null and void.
My answer to question 2 is as follows:
The answer to question 2 (b) above can dispose of the entire case. However, I will answer question 3 for completeness.
The question 3 for determination by the Court is:
Whether the Arbitration Board acted outside its jurisdiction to make its award.
The Minister responsible under the Trade Disputes Act constituted the Board of Arbitration on the 8th April 2002 under Sections 11 and 12 of the Act. The terms of reference require the Board of Arbitration to oversee the trade dispute between the VBTC Board (Plaintiff) and its employees (Third Defendants).
Section 14 of the trade Dispute Act sets out the matters to be considered by the Arbitration Board:
“14. In making an award or other decision with a view to a settlement of a trade dispute the board shall, in addition to the rights and interests of the parties to the dispute, consider the effects such award or decision may be likely to have on the social and economic development of Vanuatu”.
Section 19 provides that:
“No award or settlement resulting from any arbitration or conciliation proceedings shall be made which is inconsistent with any written law”.
The reference covers all the dispute between the Plaintiff and the Third Defendants. This is reflected in the decision and award of the arbitration board dated 20th May 2002.
The main challenge by the Plaintiff is that the arbitration board has no power under the Trade Dispute Act (CAP 162) to decide on the lawfulness or otherwise of the Third Defendants’ termination. The arbitration has no jurisdiction and its award is ultra vires its power.
In making an award or a decision with a view to settlement of a dispute the Board shall consider the right, and interests of the parties to the dispute. To do so the Arbitration Board can consider and apply the relevant and applicable law to the dispute before it.
However, the Act does not give power/jurisdiction to the Arbitration Board to decide on the lawfulness or unlawfulness of a dispute which is before it. Any of such question must be brought before the courts of law.
The Award of the Board of Arbitration marked “AB – 22” of the Affidavit of the Commissioner of Labour shows that the essential claim of the Third Defendants represented by the VNWU is that the termination of the VBTC employees on the 22nd October, 2001 was unlawful and of no effect, and that therefore they were still in continuous employment. It is also their claim that any outstanding allowances and wages owed to the employees by the VBTC are their legal entitlements and must be paid to them. They also requested that they be allowed to return to work and resume their normal duties.
In its assessment the Board finds, among other things, the following:
“The termination of 22nd October 2001 was unlawful because the letter of termination did not give any grounds for the termination ...
The Board accepts the assertion made by the VNWU that if the employees were terminated for participating in the strike action of 8th October 2001, this termination was unlawful on a further two grounds.
In the first instance, if the VBTC deemed the employees’ participation in the strike as serious misconduct ............... “. (Emphasis added)
The above findings of law and the assertions or hypothetical basis lead the Arbitration Board to make the following declaration of unlawfulness:
“The Board of Arbitration makes the following award:
2. ..............
............ “.
The findings and declaration of illegality or unlawfulness of the termination of the Third Defendants, whether rightly or wrongly done, is beyond the power or jurisdiction of the Arbitration Board to make.
The relevant law and the law to be applied is, the Broadcasting and Television Act No. 3 of 1992.
I accept the Plaintiff’s submission that to the extent that the Arbitration Board decides on the lawfulness or unlawfulness of the Third Defendants’ termination, the Arbitration Board lack jurisdiction and its award is ultra vires its powers.
It transpires that the Arbitration Board failed to consider and apply the relevant and applicable law in this case, namely, the Broadcasting and Television Act No. 3 of 1992.
Section 57 of the VBTC Act provides for this Act to prevail:
“57. The provisions of this Act shall have effect notwithstanding anything contained in any other law, and accordingly in the event of any conflict or inconsistency between the provisions of this Act and such other law, the provisions of this Act shall prevail”.
It follows that, in this case, findings of unlawfulness by the Arbitration Board, are made not withstanding Section 57 of the B.T.C. Act No. 3 of 1992. They are therefore in conflict with Section 57 of this Act. This is prohibited by Section 19 of the Trade Disputes Act (CAP 162).
Finally, I must say that all submissions by the respondents to the contrary, must fail and I so rule.
Those are the reasons of the decision of this court dated 14th October 2002 which are reproduced below:
ORDER
DATED at PORT VILA, this .......... DAY of OCTOBER, 2002.
BY THE COURT
Vincent Lunabek
Chief Justice
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