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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
O. S. No 301 of 2015
BETWEEN
GUISE KULA, General Secretary, Public Employees Association of Papua New Guinea
Plaintiff
AND:
EMMA FAITELI, President of Public Employees Association of Papua New Guinea
First Defendant
AND:
PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA
Second Defendant
Waigani: Kandakasi, J.
2016: 16th August
: 18th November
2017: 11th and 26th January
EMPLOYMENT - Employment with an industrial organisation as general secretary - Employee blowing the whistle on employer by writing to the Industrial Registrar highlighting possible invalid provisions in the employer's constitution and election or appointment of its president under invalid rule - Employee terminated for blowing the whistle rather than taking meaningful steps to fix the problem highlighted - Employee is entitled to protection as a whistle blower - Termination unlawful and with no force of effect and employee entitled to reinstatement or full payout of the balance of his contract.
INDUSTRIAL ORGANISATIONS – Constitutions of – Need for Constitutions of industrial organisation to be consistent with requirement of the Industrial Organisations Act (Chp.173) – Inconsistent parts of an industrial organisation’s constitution invalid - Invalid parts struck down - PNG Constitution ss. 9 and 10 and Industrial Organisation Act, ss. 1, 36, 37, 38 and 39
INDUSTRIAL ORGANISATIONS – Officers of – Eligibility for – Need to be engaged or employed in the relevant industry and be financial members - Failure to meet these requirements – Ineligible to be member of an industrial organisation and to be an officer of such an organisation - Unlawful for an ineligible person to continue to be an officer - Industrial Organisation Act, ss. 1, 36, 37, 38 and 39.
STATUTORY INTERPRETATION – Industrial Organisations Act - Officers of industrial organisation – Whether the president or the chief executive officer of an industrial organisation is an offer? – The chief executive officer and persons involved in the running of an industrial organisation are officers – Qualifications to be an officer – Being “engaged” or “employed” in the relevant industry unless the industrial registrar allows and being a financial member – Failure to meet these requirements – Disqualification from being an officer – Sections 1, 37, 36, 38 and 39 of the Industrial Organisations Act.
WORDS AND PHRASES – “engaged” - Within the context of s. 39 (1) (b) of the Industrial Organisations Act means “employed”.
Papua New Guinea Cases cited:
An Application of the NCDC [1987] PNGLR 339
Henry Torobert v. Mary Torobert (2012) SC1198
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466
John Mahuk v. Helen Saleu (2011) N4338
Koang No 47 Ltd v. Monodo Merchants Ltd (2001) SC675
Lae Rental Homes Ltd v. Viviso Seravo (2003) N2483
Lands concerning Section 30 Allotment 7 Mr Hagen [1995] PNGLR 31
Moge Enga and Kiupi Group In the matter of a Decision of the Minister for
Pius Sankin v. Papua New Guinea Electricity Commission (2002) N2257
Nathan Koti, & Ors v. His Worship David Susame, Nabura Morrisa & Ors (10th January 2017) N6586
Paul Bari v. Chairman, Governing Council, St. Paul’s Teacher’s College, Vunakanau & Ors (1994) N1253
Philip Takori v. Simon Yagari (2008) SC905
Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuant to Constitution Section 19 by Morobe Provincial
Government for and on behalf of The Morobe Provincial Executive Council (2002) (2002) SC693
Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424
SCR No 4 of 1990: Re Petition of Michael Somare [1991] PNGLR 265
Toby Bonggere v. Papua New Guinea Law Society (2003) N2361
The State v. Francis Tigi (2013) N5307
The State v. John Konga (2014) N5639
Willie Edo v. Hon Sinai Brown (2006) N3071.
Overseas Cases cited:
Blackburn v. Flavelle (1881) 6 App. Cas. 628, 634
Department of Homeland Security v. Robert J. MacLean (Supreme Court of the United States No. 13–894, 574 U. S. (2015)
Other sources cited:
Craies on Statute Law, 7th ed., pp. 259-260
Counsel:
O. Ona, for the Plaintiff
R. Tuva, for the Defendants
26th January, 2017
1. KANDAKASI J: On 7th June 2006, the Public Employees Association (PEA) had its constitution or rules changed to allow for a full time president. Upon
being elected president, Emma Faiteli (Faiteli) resigned from her employment with the Department of Personal Management (DPM) to
take up the position with the PEA as its president. She also ceased to keep her membership with the PEA current as an employee in
the public sector. The Plaintiff, Mr. Guise Kula (Kula) argues that all this was contrary to ss. 36, 39 and other relevant provisions
of the Industrial Organisations Act, Chp.173 (the IOA) which governs all industrial organisations in the country. This he argues is the case because Faiteli is not a person
who is employed in the industry and she is not a current member of the PEA. Faiteli takes issue with Kula’s standing to bring
this proceeding and does not in any meaningful way address Kula’s main arguments.
Relevant Issues
2. Pursuant to a Statement of Agreed and Disputed Facts and Issues for Trial (SADF&IT) filed on 17th August 2015, the parties agreed that the following are the relevant issues for this Court’s consideration and determination:
“1. Whether the plaintiff has legal standing to commence the proceedings against the Defendants?
3. Some of these issues like the second one should not and are correctly not in any serious contest between the parties. The matters that can and are in issue are the following:
4. As indicated, the Defendants in their submissions address only the issue of Kula’s locus standi and his right to bring this proceeding in the way he has. They make no submissions on the other issues. Hence, the Court will be dealing with the other issues without any assistance from the Defendants.
5. The parties have also agreed and settled upon the relevant facts which are also set out in the SADF&IT. The relevant facts according to the parties’ statement are these:
“1. The plaintiff was the General Secretary of the Public Employees Association of Papua New Guinea (PEA).
Issue 1 – Does the Plaintiff have standing or locus standi?
6. It is important that I deal firstly with the first issue of the Kula’s “standing” or “locus standi”. This issue is determinative of this proceeding. If that issue is determined against Kula, that will be the end of the proceedings. Hence, there will be no need to consider the other issues.
7. Until his termination, Kula was the General Secretary of the PEA. It was part of his duty to oversee the overall administration of that organisation. That included a duty to ensure all of the operations of the PEA are in accordance with relevant laws and legislation governing industrial organizations and in particular the IOA. On 7th June 2006, the PEA’s initial constitution got replaced with a new one. The new constitution allowed for its president to be elected and hold office on a full time basis. That obviously meant an elected president would have to give up his or her other employment. This appeared to had the effect of breaching the requirements of s. 39 (1) (b) and (d) and s.48 (3) of the IOA. I will elaborate on this later but for now, briefly, s. 39 (1) (b) and (d) require respectively that all officers of an industrial organisation to be engaged within the relevant industry and be financial members of the organisation. The only officer who is exempted from these requirements is the secretary of the organisation.
8. The possible breach of the aforementioned provisions of the IOA became pronounced when Faiteli became the president of the PEA and she resigned from her full time employment with the DPM which removed her from being engaged in the industry. This was further complicated by her also ceasing to pay her membership fees. Concerned with possible breaches of relevant provisions of the IOA, Kula wrote to the Industrial Registrar (the Registrar), who appears to have allowed the position to worsen by simply doing nothing about it. Rather than taking appropriate steps to address and fix the problem highlighted by Kula, the Defendants terminated Kula for raising the issues he raised by writing to the Registrar.
9. Kula’s termination came about when he was on a four months leave commencing 10th April 2015. He was served with a notice of his termination on 18th May 2015 to take effect on 19th August 2015. In the absence of any evidence to the contrary, it appears his termination came about with some collusion with the Registrar and Faiteli, in that Faiteli was able to access the letters written by Kua to the Registrar. It is also obvious that instead of Defendants taking appropriate steps to address and fix the problem highlighted by Kula, they chose to have him terminated for raising the issues. Clearly, the Defendants chose to shoot down the whistle blower, over meaningfully addressing and fixing the problems highlighted in the whistle blower’s letters.
10. Shooting down a whistle blower by having him or her terminated is no answer to a problem. The law and the Courts do not view favourably those who shoot down whistle blowers. Though in a criminal case, the National Court in The State v. Francis Tigi,[1] found for example that, targeting a whistle blower was not going to make the problem in the case disappear. It only worsened it. In another case, The State v. John Konga,[2] the National Court commended and appreciated a whistle blower from blowing the whistle against her superior which led to his arrest and successful prosecution.
11. In developed jurisdictions like the United States of America (US), specific legislation is in place to protect whistle blowers. On point is the US Whistleblower Protection Act of 1989, Pub.L. 101-12 as amended. It is a US federal law that protects federal whistle blowers who work for the government and report any agency’s misconduct. A federal agency violates the Act if the agency authorities take or even threaten to take retaliatory personnel action against any employee because of disclosure of information by that employee.
12. A most recent case affirming this position is the US Supreme Court’s decision in Department of Homeland Security v. Robert J. MacLean.[3] There, in 2003, Robert J. MacLean a US air marshal, received an alarming emergency alert from the Department of Homeland Security (DHS), detailing a “specific and imminent terrorist threat focused on long-distance flights – a more ambitious, broader-scale version of the 9/11 plot”.[4] Within 48 hours, he got an unencrypted text message from the Transportation Security Administration (TSA) scrapping all overnight missions and telling all air marshals to immediately cancel all hotel reservations. The aim of this message was to save money. MacLean considered this posed a serious public health and safety issue and protested up the relevant chain of command and got nowhere. As a last resort, he shared the information with a reporter from MSNBC. The reporter published a story about the TSA’s decision, titled “Air Marshals pulled from key flights.” The story reported that air marshals would “no longer be covering cross-country or international flights” because the agency did not want them “to incur the expense of staying overnight in hotels.” The story also reported that the cancellations were “particularly disturbing to some” because they “coincide[d] with a new high-level hijacking threat issued by the Department of Homeland Security.”
13. After MSNBC published the story, several Members of Congress criticized the cancellations. Within 24 hours, the TSA reversed its decision and put air marshals back on the flights.
14. Initially, the authorities did not know that MacLean was the source of the disclosure. In September 2004, however, MacLean appeared on NBC Nightly News to criticize the TSA’s dress code for air marshals, which he believed made them too easy to identify. Although MacLean appeared in disguise, several co-workers recognized his voice, and the TSA began investigating. During that investigation, MacLean admitted that he had disclosed the text message back in 2003. Consequently, in April 2006, the TSA fired MacLean for disclosing sensitive security information without authorization.
15. MacLean challenged his firing before the Merit Systems Protection Board (MSPB), arguing in relevant parts that his disclosure was a protected whistle blowing activity under 5 U. S. C. §2302(b) (8)(A). The Board held that MacLean did not qualify for protection under that statute, because his disclosure was “specifically prohibited by law.”[5] MacLean successfully appealed against that decision with the Court of Appeals for the Federal Circuit vacating the MSPB’s decision.[6] Aggrieved by that decision, the DHS appealed to the US Supreme Court which by a majority of 7 – 2 dismissed the appeal and upheld the Court of Appeals for the Federal Circuit's decision.
16. Other developed jurisdictions like the United Kingdom (UK) and nearby Australia have similar legislation providing protection for whistle blowers. At the Federal level in Australia it is the Public Interest Disclosure Act 2013. Then at the State level each of the States have their own legislation by the same title but specific to each of the States. In the UK is Public Interest Disclosure Act 1998. I am firmly of the view that, having such protection as a matter of law for whistle blowers in the jurisdictions where they exist see either zero to less level of corruption and lawlessness and the rule of law prevailing.
17. In PNG, there has been some talk about enacting such legislation but I am not sure if one has been already enacted. If not already done, Parliament should be encouraged to enact one sooner than later. This is necessary because, these kinds of legislation enables courageous men and women to practically take a real and meaningful step toward law enforcement and real fights against corrupt elements in society and thus meaningfully contribute to a society built, governed and run on a solid foundation called the rule of law. Their courageous actions make decision makers especially in the public sector accountable and help rid the society of law breakers and corruption with their many adverse impacts on the society. They also help ensure that the rule of law is maintained at all levels for the overall safety and good health of the society.
18. In the present case, Kula raised issues that concerned the provisions of s. 39 (1) (b) and (d) and other relevant provisions of the IOA. These issues concerned the validity of changes to the PEA’s constitution, Faiteli’s membership with the PEA and her qualification to hold the position of the president of the PEA. The issues raised in these proceedings require a consideration in so far as they are relevant, the provisions of sections 1, 36, 37, 38 (1) and (2), 39 (1) (b) and (d) and (3) and 48 of the IOA. These provisions read:
Section 1:
“‘officer’ means -
(a) in relation to an industrial organization—
(i) the secretary of the organization; or
(ii) a member, other than a trustee or auditor, of the executive committee; and
(b) in relation to a branch—a member, other than a trustee or auditor, of the management committee of the branch...”
‘executive committee’ means-
“...in relation to an industrial organization, means the person or body of persons to whom or to which the management of the affairs of the organization is entrusted...”
Section 36:
“36. Membership.
(1) A person qualified under this Act for admission as a member of the organization is entitled, subject to payment of any moneys properly payable in respect of membership —
(a) to become a member of an industrial organization representative of his interests in the industry or occupation in which he is or is usually engaged, or wishes to become engaged; and
(b) to remain a member of the organization so long as he continues usually to engage in the industry or occupation and complies with the rules of the organization.
(2) Subsection (1) has effect notwithstanding the rules of the industrial organization concerned.
Section 37:
“37. Ex officio membership of secretary.
Subject to the rules of the organization, the secretary of an industrial organization shall be deemed to be ex officio a member of the organization.”
Section 38:
“38. Disputes as to membership.
(1) Where a question or dispute arises as to the entitlement under this Act of a person to be admitted as, or to remain, a member of an industrial organization—
(a) the person; or
(b) a person who is or desires to become the employer of the person; or
(c) the organization; or
(d) the Registrar; or
(e) any other interested person,
may apply to the National Court for a declaration as to his entitlement to membership of the organization.”
Section 39:
“39. Officers.
(1) Subject to this section and to Section 37, a person who—
(a) is an officer of another industrial organization; or
(b) is not actually engaged in an industry or occupation with which the organization is directly concerned, unless the Registrar, in his discretion, so permits; or
(c) is not over the age of 21 years; or
(d) is not a member of the organization; or
(e) is not ordinarily resident in the country,
is not entitled to be an officer of an industrial organization.
...
(3) Subject to Subsection (4), the office of secretary of an industrial organization may be filled by a person not actually engaged
in an industry or occupation with which the organization is directly concerned, unless the Registrar otherwise directs.”
(Underlings supplied)
19. As noted, Kula issued this proceeding to both challenge his termination and to also raise the legal issues he had raised with the Defendants. Obviously, he is directly affected and has an interest in ensuring that the PEA’s activities are in accordance with all the laws of the land and in particular the provisions of the IOA. It is settled law that, before a plaintiff can be heard, it is necessary for him or her to show that he or she has the necessary “standing” or “locus standi” to bring the proceedings. Different kinds of considerations apply depending on the kind of claim one is seeking to enforce. Broadly there are two categories of claims, private or public. In PNG, the decision of the Supreme Court in SCR No 4 of 1990: Re Petition of Michael Somare[7] represents a third category, namely a public interest claim.[8] In each of these categories, a plaintiff is required to show either that he is personally and directly affected or that he is qualified to bring the proceedings as a member of the public who is qualified to bring the proceedings for the benefit of the public.
20. In the present case, I have no difficulty in finding Kula has the necessary locus standi to bring this proceeding for three reasons that will become apparent and clear in the course of discussing and dealing with the other issues. But for now, the three reasons briefly are firstly, Kula is a person who is directly affected by the decision to have his employment with the PEA terminated. Secondly, as a person who served as the general secretary of the PEA and hence involved in the union movement in the country, he has the necessary standing to raise issues that concern and affect industrial organisations in the country and in particular the PEA. Thirdly, the provisions of s.38 (1) of the IOA are wide enough to empower even Kula to bring these proceeding. Hence, the Defendants argument against Kula having the necessary locus standi must fail.
21. Before arriving at the above view, I had serious and careful regard and consideration of the Defendants’ two other main arguments. The first is based on clause 27 of the Kula’s contract of employment with the PEA. The second argument is that, Kula is entitled to a claim for damages for unlawful dismissal and not the kinds of reliefs he seeks in these proceeding. In respect of the first argument the Defendants argue that Kula is precluded by clause 27 of his contract of employment with the PEA from bringing this proceeding. This clause in relevant parts read:
“...In case of any dispute or difference between the parties on construction of this agreement or the right, duties or obligation of either party hereunder or any matter arising out of or concerning the same or the General Secretary’s employment hereunder every such dispute [or]... difference shall be submitted to Arbitration in accordance with the provisions of the Industrial Relations Act (chapter No. 174)...”
22. I decided to reject the Defendants’ first argument because they failed to produce any evidence of they themselves following that process before coming to the decision to have Kula terminated. In the absence of any evidence to the contrary it is clear to me that instead of following the process provided for under clause 27, they chose to terminate Kula. Clearly therefore, the Defendants are not coming to this Court with clean hands. There is much authority both locally and internationally that those who come to the Court must do so with clean hands if they wish the Court to act in their favour. The decision of the Supreme Court in Henry Torobert v. Mary Torobert[9] is an example of a case on point. There the Court stated the principle in these terms:
“The Court must always consider the conduct of the parties. Maxims such as ‘those who seek equity must do equity’ and ‘those who come to a court of equity must come with clean hands’ apply (Mainland Holdings Ltd v Paul Robert Stobbs (2003) N2522, John Mur v Les Kewa (2010) N4016).”
23. Also, the Defendants have already decided to terminate Kula. This effectively means that unless there is a reinstatement of the contract, there is no subsisting contract between the parties which could enable the clause in question to operate.
24. With regard to the Defendants’ second argument, I note Kula is seeking an order that his termination was unlawful and seeks in the consequence an order for his reinstatement. As I have observed already, the Defendants terminated Kula for blowing the whistle against a state of affairs that was attending the PEA and its administration that was contrary to law and in particular the IOA. That begged consideration and correction and not a termination of the whistle blower. He needs to be protected from such action. He has come to this Court for such protection and the Court cannot simply turn a blind eye on the need for his protection and a meaningful addressing and fixing of the problems highlighted in his letters to the Registrar in the interest of doing justice. His claims need to be considered fully before any final decision. They cannot be dismissed lightly. Accordingly, I rejected the Defendants’ argument that Kula is entitled only to damages by way of his relief for his termination.
Issues 2, 3 and 4 - Who is an officer and is qualified to be an officer of an Industrial Organisation within the meaning of s. 39 of the IOA?
25. I now turn to a consideration of issues 2, 3 and 4. These issues concern the question of who is an “officer” and who is qualified to be an officer of an industrial organisation within the meaning of s. 39 of the IOA. I will therefore deal with these three questions together.
26. Before proceeding, I note, there is no serious contest between the parties that the PEA is an industrial organisation established under the IOA. It was established to cater for all public servants and other persons employed in the public sector[10] as their organisation to fight for better terms and conditions for their members and represent its members in all industrial matters. A serious issue has arisen regarding the position of the president of the PEA. The issue lies in the question of whether the office of the president of the PEA is an officer within the meaning of ss. 1 and 39 of the IOA and how one qualifies to be an officer of an industrial organisation?
27. Sections 1 (only the parts defining the word “officer” and the phrase “executive committee”), 36, 37, 38 (1), 39 (1) (b) and (d) and (3) and 48 of the IOA, the relevant parts of which are quoted in paragraph 17 above as noted already are relevant. Reading these provisions together, it is abundantly clear that “the person or body of persons to whom or to which the management of the affairs of the organization is entrusted” together with the “secretary” of an industrial organisation is an officer or are officers of such an organisation. Usually, the chief executive officer, and those in the executive management team would be the officers of any organisation. In the case of an industrial organisation in PNG, there is usually a president, deputy or a vice president, secretary, treasurer and other officers as may be provided for by their respective constitutions and as may be authorised by the IOA. Hence, the president or the chief executive officer would be the first officer of an industrial organisation. If the position is otherwise than this, it would be outside and against the spirit and intention of the IOA. Hence, the answer to the question under issue 2 of whether the president of PEA is an officer within the meaning of the provisions of s. 39 is an obvious yes. This is confirmed by Rule 24 (b) and other provisions of the PEA constitution.
28. The answer to the next two questions raised under issues 3 and 4 regarding qualification for a person to be an officer of an industrial organisation is also very clear. The same provisions, s. 39 and the other relevant ones under consideration clearly point out that a person is excluded from being an officer of an industrial organisation if that person is:
(a) already an officer of another industrial organization; or
(b) not actually engaged in an industry or occupation with which the organization is directly concerned, unless the Registrar, in his discretion, so permits; or
(c) under the age of 21 years; or
(d) not a member of the organization; or
(e) not ordinarily resident in the country.
29. These requirements are clear. Only the requirement under s. 39 (1) (b) needs careful consideration. A key to understanding this particular requirement is the word, “engaged” as used in this provision. This word is the past tensed for the word “engage”. A quick look up of any dictionary’s definition of this word reveals a number of possible meanings but the ones that appear to fit into the context of the legislation and the provisions under consideration are the words like “involved”, “occupied”, “absorbed”, or “employed”. Of these, the word “employed” comes closure to the context under consideration. If we substituted the word “engaged” with the word “employed” it makes a whole lot of sense that a person who is not actually employed in the relevant industry is not qualified to be first of all a member[11] and secondly an officer of an industrial organisation, unless the Registrar in her discretion allows.
30. Before proceeding any further I digress a bit to comment on the discretion vested in the Registrar. The law is that, there is no such thing as unfettered discretion. Instead, all discretionary powers where ever vested, must be exercise with good reason and in furtherance of the intent of the legislation that vests the discretion.[12] In the context of the provision under consideration here, this is to say the industrial Registrar has the power to allow a person who is not employed within the relevant industry to be an officer of an industrial organisation if to do so will achieve the object of having persons meaningful employed in the relevant industry to become officers of an industrial organisation and have the privilege of becoming an officer.
31. Exempted from the restrictions imposed by s.39 (1) and the other provisions of the IOA already considered, is the secretary of an industrial organisation. He or she neither has to be a financial member nor be employed in the relevant industry or occupation. In my view therefore, it is clear that only the secretary can be on a full time employment for or with an industrial organisation. The opposite is the case for all the other officers in that, they would have to be fully employed elsewhere but within the relevant industry and be financial members of the organisation. In other words, the intention of the IOA and in particular s. 39 (1) (b) is to ensure that those who are given the honour to become officers of an industrial organisation is on the basis that they are fully “engaged” or employed in the relevant industry and that they will render their services to the their industrial organisation on a part time basis. Where a person wishing to be an officer of an industrial organisation fails to meet these requirements, he or she would also fail to qualify to be or cease to be an officer of such an organisation.
Issues 5 –Whether Rule 30 (a) of the PEA Constitution is Invalid for being Inconsistent with the Act?
32. The next issue I now turn to his issue number 5. This requires an understanding of the legislative scheme of the IOA. From the preamble to the IOA, it is clear that its purpose is to provide for the registration and control of industrial organizations, and for related purposes. Section 8 requires the registration of such an organisation which has a membership of 20 employees or four employers. The next provision, s. 9 requires an application for registration of such an organisation to be in a prescribed form with certain prescribed particulars and signed by at least 4 members or officers in the case of an organization of employers or in the case of an organization of employees, by at least 20 members or officers of the organization. Section 10 empowers the Registrar to require more information or particulars if need be to ensure that the requirements of the Act are met. The Registrar is then required to advertise the application for registration, [13] receive and deal with any objections[14] and if satisfied that all of the requirements are met, have the applicant registered.[15] At the same time, the Registrar is empowered to reject the registration of an organisation that fails to meet the requirements of the IOA.[16] There is also provision for the Registrar to cancel registration of a registered organisation in certain specified circumstances.[17] Section 25 of the IOA prohibits any person from acting for or on behalf of an unregistered organisation and makes it a criminal offence for any breach of this prohibition.
33. From this quick look at the legislative scheme, it is clear that, in order to legally exist and function as an industrial organisation, such an organisation has to be registered first. Once registered, that is not the end of the matter. The organisation is required to exist and function in accordance with the Act. A failure in that respect has the dire consequence of deregistration or cancellation in certain circumstances.
34. Included in the requirements for industrial organisations to meet is s. 48 of the IOA. This provision in clear and unambiguous terms provides for industrial organisation to have their rules or constitutions that are consistent with the IOA. The requirement is in the following terms:
“48. Requirements as to rules.
(1) Subject to Subsection (2), the rules of an industrial organization—
(a) shall provide for all the matters specified in the Schedule; and
(b) shall not be altered or amended in such a way as to cease to provide for all those matters.
(2) Notwithstanding Item 9 of the Schedule, with the approval of the Registrar if in his opinion it is warranted—
(a) because of expense; or
(b) for some reason in the interests of members of the organization or the public,
the rules of an industrial organization may provide that elections of officers after the first election following the date of registration of the organization may take place every two years rather than annually.
(3) A rule of an industrial organization shall not—
(a) be contrary to this Act or otherwise contrary to law, or be such as to cause the rules of the organization to fail to comply with this Act or an award; or
(b) prevent or hinder members of the organization from observing the law or the provisions of an award; or
(c) impose on applicants for membership of the organization or on its members, conditions, obligations or restrictions that are oppressive, unreasonable or unjust.
(4) An industrial organization shall send a copy of each new rule and each alteration made in the rules of the organization to the Registrar within 21 days after the making of the rule or alteration, or within such further period as the Registrar allows.
(5) Subject to Subsection (6), the Registrar shall register a new rule, or an alteration in the rules, of an industrial organization—
(a) on receipt of the copy referred to in Subsection (4); and
(b) on payment of the prescribed fee.
(6) The Registrar may refuse to register a new rule, or an alteration in the rules, of an industrial organization if he is of the opinion that the rule or alteration conflicts or does not comply with this Act, and notice of the refusal shall be immediately given to the organization.
(7) Unless some later date is specified in the rule or alteration, a new rule, or an alteration in the rules, of an industrial organization
takes effect from the date of registration of the rule or alteration by the Registrar.”
(Underlining supplied)
35. The Schedule to the Act then sets out the kinds of provisions that should be made in an industrial organisation’s rule or constitution. This covers the name of the organisation, membership, meetings, minutes, keeping of records, finances and so on. As long as the rule or the constitution of an organisation reflects and or mirrors what is provided for in the various provisions of the Act, the rule or constitution will remain valid and operational. Subsection (3) stipulates in clear terms that, a union’s rules must be consistent with the IOA and all other laws of the land. This is a repeat of what the PNG Constitution already provides for in s.10 following the hierarchy of laws set out in s.9 of the Constitution. It is instructive to note that s. 10 stipulates:
“10. Construction of written laws.
All written laws (other than this Constitution) shall be read and construed subject to—
(a) in any case—this Constitution; and
(b) in the case of Acts of the Parliament—any relevant Organic Laws; and
(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,
and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.”
(Emphasis supplied)
36. As the Supreme Court noted in the case of: Re Validity of Valued Added Tax Act 1998: SCR No 1 of 2000; Special Reference Pursuant to Constitution Section 19 by Morobe Provincial Government for and on behalf of The Morobe Provincial Executive Council:[18]
“Sections 10 and 11 have been the subject of discussions and judgements in a number of Special Constitutional References and other cases that have come up to this Court. Examples of these are Christopher Haiveta, Leader of the Opposition v. Paias Wingti Prime Minister of Papua New Guinea (No.3) [1994] PNGLR 197 and SCR No. 2 of 1995 Reference by the Western Highlands Provincial Executive (1995) SC486.
From this line of cases and the provision themselves, it is very clear law that all Acts of Parliament must be consistent with the Constitution and any relevant organic law. Any inconsistency renders the Act invalid and ineffective to the extent of the inconsistency”
37. The same effect follows any regulation or a subordinate legislation for any inconsistency between the regulation or the subordinate legislation and its enabling legislation. The decision in Willie Edo v. Hon Sinai Brown,[19] is an example of a case on point. There, certain provisions of Regulations enacted under the Public Service Management Act were inconsistent with relevant provisions of the Act. His Honour Lay J. (as he then was) correctly observed that:
“To the extent that the Regulations are inconsistent with the Act, the Regulations must be read down so that they are interpreted in a way which is consistent with the Act.”
38. In the present case, the Plaintiff argues that Rule 30 (a) of the PEA constitution is inconsistent with the provisions of s. 33 and 36 and 39 (1) (b) of the IOA. The argument is that, this provision allows the PEA to have a full time president. This of course entails no other employment for the one who is elected president. The elected president will be required to leave his or her other employment if already employed in order to meet the requirement for a full time position by Rule 30(a) of the PEA constitution. However, s. 39 (1) (b) of the IOA states that, “a person who is not actually engaged [or employed] in an industry or occupation with which the organisation is directly concerned is not entitled to be an officer of an industrial organisation” unless the Registrar allows. In other words, in order for a person to be an officer of an industrial organization and for him or her to remain so, he or she must be employed on a full time employment basis within the relevant industry. This is reinforced by the provisions of s. 36 which again reads:
“36. Membership.
(1) A person qualified under this Act for admission as a member of the organization is entitled, subject to payment of any moneys properly payable in respect of membership —
(a) to become a member of an industrial organization representative of his interests in the industry or occupation in which he is or is usually engaged, or wishes to become engaged; and
(b) to remain a member of the organization so long as he continues usually to engage in the industry or occupation and complies with the rules of the organization.
(2) Subsection (1) has effect notwithstanding the rules of the industrial organization concerned.
(Underling supplied)
39. Rule 30 (a) of the PEA’s constitution allows the PEA to have a full time president in the following terms:
“30. PRESIDENT
a) There shall be a President of the Association who shall:-
(i) be elected by the members;
(ii) hold office on full time basis;”
(Emphasis supplied)
40. This is obviously contrary to the clear provisions of s. 39 (1) (b) and s. 36 of the IOA. Again, the provisions of the Act in clear language provide that, except only for the secretary, no other person can be an officer of an industrial organisation if the person concerned is relevantly:
(1) not actually engaged [employed] in an industry or occupation with which the organization is directly concerned, unless the Registrar, in his discretion, so permits; or
(2) not a member of the organization;
41. Repeating what we already noted, the expressed provisions of ss. 37 and 39 (3) of the IOA, treats the office of the secretary of an industrial organisation separately and is effectively exempted from the requirements of s. 39 (1) (b) and (d). Section 37 makes the holder of the position of secretary of an industrial organisation an ex officio member of the organization. This means, the secretary does not have to be a membership paying member of the organisation. This also excuses a secretary of a union from the provisions of s. 39 (1) (d) of the IOA. Indeed s. 39 (3) of the IOA provides in clear terms that:
“...the office of the secretary of an industrial organization may be filled by a person not actually engaged in an industry or occupation with which the organization is directly concerned, unless the Registrar otherwise directs.”
42. There is a total lack of a similar provision in the IOA for the president or chief executive of an industrial organisation and other officers. Obviously, the settled principle of statutory interpretation contained in the Latin maxim “expressio unius est exclusio alterius”, which means “the express mention of one thing causes the exclusion of another”[20] applies here. This means the other officers of an industrial organisation, including the president or the top chief executive officer, must qualify by ensuring they are not caught by any of the circumstances provided for in s. 39 (1) (a) to (e). In other words, if a person is holding a position of an officer of an industrial organisation when any one of the circumstances provided for under s. 39 (1) (a) to (e) applies to him or her, that would be illegal. This would be the case, even if the constitution or rules of an industrial organisation has a provision that allows it. All rules or constitutions of industrial organisations have to be read subject to the provisions of the IOA. Hence, any provision in any industrial organisation’s rules or constitution that seeks to restrict or remove the requirements of the IOA and any regulations enacted thereunder will no doubt be ultra vires the IOA, and therefore invalid and are liable to be struck down.
43. Accordingly, I accept Kula’s argument that, Rules 30 (a) of the PEA’s constitution is inconsistent with the provisions of s. 39 (1) (b) of the IOA. The offending provision must therefore be struck down for not being authorized and is inconsistent and or contrary to the provisions s. 39 (1) (b) of the IOA and the spirit of the whole scheme of the IOA which is to allow for all officers of unions to be part timers only and keep their substantive employment within their relevant industry. In the case of the PEA all officers except for its secretary are required to keep their full time employment within the public service or public sector and serve the PEA on a part time basis. .
44. If the Registrar carried out her functions under s. 48 (6) diligently, the PEA constitution that introduced this unauthorized change could have been rejected for being inconsistent with the provisions of ss. 39 (1) (b) of the IOA. Consequently, this case and the issue now before this court could have been avoided. It is obvious the Registrar failed more than once, from the lodgement of the PEA’s offending constitution and when Kula raised the issues with her in his two letters. By failing to seriously consider and act on Kula’s request, the Registrar contributed to and allowed the problem to compound and escalate into Kula’s termination and the issuance of this proceeding. But more seriously the Registrar allowed an illegal provision of the PEA to continue to exist and operate. This should now be ordered to stop immediately.
45. Where an unfortunate occasion as in the present case arises, s. 48 provides as to what should happen. This provision reads in clear terms:
“49. Determination or validity of rules.
(1) A member of an industrial organization or the Registrar may apply to the National Court for an order declaring that the whole or a part of a rule of the organization contravenes Section 48(3).
(2) The National Court may—
(a) require to be joined in proceedings under Subsection (1) such person as it thinks necessary; and
(b) without prejudice to any other power to adjourn proceedings, adjourn any such proceedings—
(i) for such period; and
(ii) on such terms and conditions,
as it thinks proper for the purpose of giving to the organization an opportunity to alter its rules.”
46. I already held that Kula has standing to bring this proceeding. For the purpose of this provision, I note and accept that prior to his unlawful termination Kula was a member of the PEA. The circumstances in which he was terminated amounted to a case of firing a whistle blower. His sin was pointing out the clearly unauthorized and illegal adoption and application of the provisions of Rule 30 (a) of the PEA’s constitution. In keeping with the body of law throughout jurisdictions similar to PNG as discussed already in the earlier part of this judgment, Kula is entitled to protection from the kind of retaliatory action taken by the Defendants. The best possible protection is to declare that he was not properly and legally terminated with the consequence that he remains in the position he was prior to his unlawful dismissal. This necessarily has the consequence of him holding his position with the PEA and as a member for the purposes of s. 48 (1). Further, I am firmly of the view that no Court should ignore a clear demonstration of an illegal and unauthorised activity or position as is the case here. I am persuaded by my brother Canning J.’s decision in Nathan Koti, & Ors v. His Worship David Susame, Nabura Morrisa & Ors.[21] There His Honour used the provisions of s. 155 (4) of the Constitution to uphold a mediated agreement that finally resolve a long outstanding customary land dispute in order to do justice even though the jurisdiction to determine customary land dispute is vested in the Local and Provincial Land Courts. Here is how His Honour reasoned at paragraphs 21 – 23:
“21. I am comforted, indeed emboldened, in overcoming those hesitations by the striking authorisation of Section 155(4) of the Constitution, which states:
Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.[Emphasis added.]
22. I am obliged to depart from the conventional approach to making orders in judicial review and to make a decision that borders on determining questions of ownership of customary land as there are exceptional circumstances in this particular case. The disputes underlying the judicial review proceedings have continued on a course of mediation and litigation for more than 20 years. The mediated agreement represents a consensus of all but one of the parties to the judicial review proceedings and other persons with a legitimate interest in the underlying disputes.
23. It is necessary to do justice in the circumstances of this particular case to order, without further hearing, that the mediated agreement be given effect as an order of the National Court, and that the judicial review proceedings be determined accordingly. The parties will bear their own costs.”
47. Here, in the case before me, the provisions of Rule 30 (a) of the PEA constitution has been allowed to exist and operate illegally despite Kula raising the issue in the way he has. This illegal position cannot be allowed to continue on account of such reasons as lack of standing to raise the relevant issues by Kula. Indeed, any person who with some interest in the subject matter who is concerned with any possible breach of any of the country’s laws should be permitted to raise the issue and the Court should not be restraint by technical arguments such as a lack of standing which is a common law principle to stand in the way of correcting an operation that is contrary to specific and clear statutory requirements. There is a reason why the founders of the PNG Constitution included the provisions of s. 155 (4) in the Constitution. In my view, they anticipated a situation like the present where those who are supposed to ensure there is due compliance of the requirements of the law and safe guard against any breach or illegal conduct failing in their duties and such failure comes to the attention of the Court, the Court should make appropriate orders to do justice in the case.
Issue 6 – Did Faiteli cease to be a member of the PEA and therefore not qualified from holding office as president when she
resigned from her public service employment and ceased to be a financial member of the PEA?
48. This leaves me now to deal with the remaining issue. This issue concerns an application of the law as discuss above to the particular
facts of this case. The Defendants submission is that Faiteli simply followed the requirements of Rule 30 (a) of the PEA constitution
when she resigned from her then full time employment with the DPM. Kula relies on the decision of her Honour, late Davani J in John Mahuk v. Helen Saleu,[22] and argues for an answer to this question in the affirmative.
49. In Mahuk’s case, Mahuk sought to be re-elected as the president of the PNG Maritime and Seamen Workers Union. At the relevant time, he was not a financial member of the union. He was also not engaged or employed in the relevant industry. This formed the basis for the National Court deciding to dismiss Mahuk’s action as he did not qualify to be re-elected by reason of him not being employed in the relevant industry and not being a financial member of the union.
50. Repeating what I already said, in this case, there is no serious issue as to the PEA’s initial constitution being adopted and operating under and in accordance with the IOA. An issue did however arise when the new constitution got adopted and become operational from June 7th 2006. This change saw the coming into existence of a full time president pursuant to Rule 30 (a) of the new PEA constitution with flow on consequences. Again as already noted, Kula raised the issue of Rule 30 (a) of the PEA’s constitution contravening and becoming inconsistent with the provisions of s.39 (1) (b) and (d) and s. 36 and the other relevant provisions contrary to the requirements of s. 48 (3) of the IOA. This inconsistency became pronounced when Faiteli became president and she resigned from her full time employment with the DPM which removed her from being “engaged” or “employed” in the industry, namely the public service. That got further complicated by her also ceasing to pay her membeship fees. Again as noted, despite Kula raising the relevant issues, the Registrar, allowed the position to worsen by doing nothing when she was requested to intervene and help resolve the problem. By her in actions she allowed this illegal and unsatisfactory state of affairs to continue and would have likely continued if Kula did not raise the issues and issued this proceeding.
51. Again repeating myself, the combined effect of ss. 39 (1) (b) and (d), 36 37 and the others already considered is very clear. No person can be an officer of an industrial organisation, including its president or chief executive if he or she is not:
(1) “engaged” or employed in an industry or occupation with which the organization is directly concerned” unless the Registrar permits; and
(2) a financial member of the organisation.
52. There is no argument as to Faiteli meeting both of these requirements prior to her election as the president of the PEA. However, upon being elected president, she resigned from her full time employment with the DPM. That rendered her a person not engaged or employed in the industry (the public service or public sector) and therefore not qualified to be an officer, namely the president of the PEA. Her only saving grace is the provisions of Rule 30 (a) of the PEA constitution. But has already noted, that provision is inconsistent with the provisions of s. 39 (1) (b) and of the IOA in particular and is therefore invalid. As such, Faiteli now and any other person who becomes a president of the PEA without being employed in the public service (industry) do not qualify and cannot hold the office of the president of PEA notwithstanding the provisions of Rule 30 (a) of the PEA constitution. This is Faileti’s first problem.
53. The second problem for Faileti’s is this. She did not produce any evidence of seeking the Registrar’s allowance under s. 39 (1) (b) and the Registrar for very good reason having allowed her to be elected president of the PEA despite her failure to meet the requirement for her to be fully employed in the relevant industry, namely the public service.
54. Faiteli’s third problem is her ceasing to meet her membership fee requirements. It is an agreed fact that, she did not meet her membership fees requirement for more than 72 days up to the time Kula raised the issue. There is no evidence, agreed or otherwise that shows, Faiteli eventually meeting her membership fees. Again there is no evidence of this issue being addressed in any meaningful way. Rule 14 of the PEA constitution relevantly provides:
“14. NON-FINANCIAL MEMBERS
55. This provision needs to be read subject to the provisions of s. 36 of the IOA. At paragraphs 18 and 38 I quoted in full the provisions of s. 36. It is not necessary quote the provision in full again. These provision makes it clear that membership is conditional on “payment of any moneys properly payable in respect of membership” in addition to being “engaged” or employed in the relevant industry. Subsection (2) of the same provision makes it clear that these two requirements apply “notwithstanding the rules of the industrial organization concerned.” What this means in my view is that, regardless of what the PEA’s constitution or rule says, a person will cease to be a member of the PEA the moment, he or she fails to meet either or both of these requirements. If there was a genuine issue with this, the provisions of s. 38 would come into play. The full text of this provision is set out at paragraph 17 above. As already noted, this provision authorizes any person wishing to be a member of an industrial organisation, or such a person’s employer, the relevant industrial organisation, the Registrar or any other interested person to go to the National Court for an appropriate order in a form of a declaration as to the person’s entitlement to membership of the organisation. After having received the relevant evidence, having heard the parties and after giving due consideration to the evidence and the submissions the Court is empower to arrive at an appropriate decision and issue appropriate orders.
56. When Kula raised the issue of Faiteli’s membership it was not appropriately and duly dealt with, by Faiteli herself, the PEA board and the Registrar. Hence, it remained an issue for Kula to come to this Court in the way he has. In the absence of any evidence to the contrary, I am compelled by the uncontested or agreed facts to find that, Faiteli is not a member of the PEA by reason of her failure to meet her membership dues as well has her not being engaged or employed in the relevant industry being the public service. It should follow therefore that, Faiteli is disqualified from being a member of the PEA and for her to hold onto the position of president of the organisation.
Appropriate Orders
57. Having dealt with the issues in the foregoing manner, the Court now has to decide on the appropriate orders to issue. These requires a consideration of the reliefs Kula seeks against the views I expressed above. In his Originating Summons, Kula claims the following:
“1. A Declaration that the Second Defendant is an Industrial Organization established under the Industrial Organization Act 1962 and its existence and control is regulated by the said legislation; and
58. As noted in the earlier part of this judgment, there can be no dispute and indeed there is no dispute requiring orders in terms of claims 1 and 2. Accordingly, I decline to make any orders in those terms. No application or argument has been presented for orders in terms of claims 13 and 14. By reason of that, I decline to make orders in those terms. I am satisfied that a case has been made out for the grant of the claims from 3 to 12 and also claims.
59. Accordingly I make the following orders:
(a) Confirm either a reverting to the Second Defendants Constitution prior to the amendment and adoption of new Constitution on 7th June 2006 or having it replaced within a period of thirty (30) days with one that strictly complies with the requirements of the Industrial Organisations Act;
(b) Election of a new President for the Second Defendant in accordance with the relevant Constitution confirmed in accordance with term 12 (a) above; and
(c) Reinstating the Plaintiff to his position as the General Secretary of the Second Defendant or have the balance of his contract fully paid out or such other arrangements as may be agreed to by the parties.
_________________________________________________________
Ona Lawyers : Lawyers for the Plaintiff
Tuva & Associates Lawyers : Lawyers for the Defendants
[1] (2013) N5307.
[2] (2014) N5639.
[3] (Supreme Court of the United States No. 13–894, 574 U. S. (2015).
[4] This and the rest of the facts of the case are from the judgment of the US Supreme Court unless otherwise clearly stated.
[5] 116 MSPR 562, 569–572 (2011).
[6] Robert J. MacLean v. DHS, 714 F. 3d 1301 (2013).
[7] [1991] PNGLR 265.
[8] There are numerous cases on point but for an example of a case on point see: Paul Bari v. Chairman, Governing Council, St. Paul’s Teacher’s College, Vunakanau & Ors (1994) N1253
[9] (2012) SC1198 (see also Philip Takori v Simon Yagari (2008) SC905 and Koang No 47 Ltd v Monodo Merchants Ltd (2001) SC675 for additional examples)
[10] See Rule 14 of the PEA Constitution.
[11] See s. 36 of the IOA.
[12] See for examples of cases on point: In The Matter of The Lawyers Act 1986; In The Matter of an Application by Roger Gill Maguire for Admission as a Lawyer (2003) N2466; Lae Rental Homes Ltd v. Viviso Seravo (2003) N2483; Moge Enga and Kiupi Group In the matter of a Decision of the Minister for Lands concerning Section 30 Allotment 7 Mr Hagen [1995] PNGLR 31; An Application of the NCDC [1987] PNGLR 339 and Pius Sankin v. Papua New Guinea Electricity Commission (2002) N2257
[13] Section 13.
[14] Sections 14 – 19.
[15] Section 20.
[16] Section 22.
[17] Sections 23 and 24.
[18] (2002) SC693.
[19] (2006) N3071.
[20] See for authorities on point: Blackburn v. Flavelle (1881) 6 App.Cas. 628, 634, Craies on Statute Law, 7th ed., pp. 259-260 in Re Moresby North East Parliamentary Election (No.1): Goasa Damena v. Patterson Lowa [1977] PNGLR 424; Toby Bonggere v. Papua New Guinea Law Society (2003) N2361 and Inakambi Singorom v John Kalaut [1985] PNGLR 238
[21] (10th January 2017) N6586.
[22] (2011) N4338.
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