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Attorney General v SI Public Employees Union [1986] SBHC 5; [1985-1986] SILR 153 (21 February 1986)

1985-1986 SILR 153

IN THE HIGH COURT OF
SOLOMON ISLANDS

Civil Case No. 114 of 1985

ATTORNEY GENERAL

v

SOLOMON ISLANDS PUBLIC EMPLOYEES UNION

High Court of Solomon Islands
(Wood C.J.)
Civil Case No. 114 of 1985

7 February 1986 at Honiara
Judgment 21 February 1986

Trade Disputes Act 1981 - whether a “trade dispute” - Trade Unions Act s.24 - whether immunity - whether strike after dispute referred to Trade Disputes Panel in breach of Trade Disputes Act s.10(1).

Facts:

The petitioner brought this Originating Summons to determine (1) whether three demands by the respondent made in connection with the sale of Government houses, were a “trade dispute” within the meaning of the Trade Disputes Act 1981; (2) whether the strike called by the respondent was in furtherance of a trade dispute thereby giving the respondent immunity under s.24 of the Trade Unions Act from civil suit; and (3) if so, whether continuing the strike after the dispute had been referred to the Trade Disputes Panel was in breach of s.10(1) of the Trade Disputes Act 1981 thereby entitling the respondent to relief under s.10(5) and (6) thereof.

A committee had been appointed to implement a Cabinet decision to sell Government houses to public officers and came into heavy criticism from the officers alleging maladministration. The respondent made its demands on the Government and resolved to go on strike. On the same day the strike commenced the Government referred the matter to the Trade Disputes Panel, but the strike continued for another four days.

Held:

1. The definition of “trade dispute” in the Schedule to the Trade Disputes Act 1981 merely expounds on the simpler definition given in s.2 of the Trade Unions Act but both mean the same thing.

Accordingly, since the respondent conceded that the demands were a “trade dispute” with the meaning of the Trade Unions Act, they were also a “trade dispute” within the meaning of the Trade Disputes Act 1981.

2. The strike action was clearly in furtherance of a trade dispute thereby giving the respondent immunity under s.24 of the Trade Unions Act.

3. When the respondent resolved to continue the strike after it had been referred to the Panel, it was in breach of s.10(1) of the Trade Disputes Act 1981 and therefore the applicant was entitled to a declaration that he was entitled to an order or relief under s.10(5) and (6)(a) of the Act i.e. compensation for losses suffered.

So ordered.

No cases considered

Reginald Teutao for the Applicant
Francis Waleilia for the Respondent

Wood CJ: This matter is brought before the Court by the Attorney General by way of originating summons under Order 57 rule 4 requesting that the Court determines the following questions-

“1. Whether or not the Respondent’s three demands namely-

(a) that Solomon Islands Government suspend the present sale of Government houses including the Committee on the sale of Government houses from further administration of the sales;

(b) that Solomon Islands Government in consultation with SIPEU set up immediately a Commission of Enquiry with unlimited powers and rights to investigate all matters in regard to the sales particularly the grievances and allegations of inconsistencies in the administration of the sales; and

(c) that Solomon Islands Government present to SIPEU the criteria used in the allocation of houses by the Committee in the sales

are trade disputes within the meaning of the term “trade dispute” as defined in the Schedule to the Trade Disputes Act 1981.

2. Whether or not the strike action by members of the Respondent from 2 September to 6 September 1985 in lieu of the above demands is “an act done in contemplation or in furtherance of a trade dispute” so that the Respondent its executive and members have statutory immunity from civil suits under section 24 of the Trade Unions Act (Cap. 76).

3. If the answers to question 1 and 2 above are in the affirmative was the Respondent by its executive servants agents or striking members in breach of section 10(1) of the Trade Disputes Act 1981 by continuing with the strike action from 3rd to 6th September 1985 after the Respondent had written notice on 3rd September 1985 that its three demands had been referred to the Trade Disputes Panel so that the Applicant is entitled to declaratory orders or relief under section 10(5) and (6)(a) of the Trade Disputes Act 1981.”

The facts in this case are that a Committee was appointed to administer a Cabinet decision to sell houses to public officers. The activities of this Committee came in for heavy criticism from public officers alleging maladministration. The Union who represented public officers then made the demands on Government as set out in paragraph 1(4)(b) and (c) above. By August 30, 1985 at a Union meeting the members resolved to go on strike. On the morning of September 2, 1985 the strike commenced and on the same day the Permanent Secretary of the Ministry of Public Service referred the demands to the Trade Disputes Panel and the Union were informed by September 3, 1985. At a further meeting of Union members on September 4, 1985 the members resolved to continue the strike in spite of the fact that the dispute had been referred to the Trade Disputes Panel.

Briefly the Attorney General is asking firstly whether or not the three demands by the Union were trade disputes within the meaning of the Trade Disputes Act 1981. Secondly whether or not the actual strike action between 2nd and 6th September 1985 was an act in furtherance of a trade dispute and lastly if so whether continuing strike action was in breach of s.10(1) of the Trade Disputes Act 1981.

Mr Teutao has argued that the demands were a trade dispute and that the action taken was in furtherance of a trade dispute and that the applicant is entitled to declaratory orders under s.10(5) and (6)(a) of the Trade Disputes Act 1981.

Mr Waleilia in reply has argued that it is a trade dispute in terms of the Trade Union Act Cap. 76 of the Laws but not a trade dispute as defined by the Schedule to the Trade Disputes Act 1981.

A “trade dispute” is defined in both these Acts. S. 2 of the Trade Union Act Cap. 76 defines it as follows-

““trade dispute” means any dispute or difference between employers and employees or between employees and employees, connected with the employment or non-employment or the terms of employment, or with the conditions of labour, of any person”.

The Schedule to the Trade Disputes Act 1981 defines “trade dispute” as follows-

“Trade dispute ..... A dispute between employees and employers, or between groups of employees, which is connected with one or more of the following matters-

(a) terms and conditions of employment or the physical conditions in which employees are required to work;

(b) engagement or non-engagement, or termination or suspension of employment or the duties of employment, of one or more employees;

(c) allocation of work as between employees or groups of employees;

(d) matters of discipline;

(e) membership or non-membership of a trade union; and

(f) machinery for negotiation or consultation, and other procedure relating to any of the matters mentioned above, including the recognition of any trade union by an employer.”

It will be immediately apparent that the draftsman in the 1981 Act has drawn his definition more widely but it is nonetheless basically the same. It only changes in detail where in the Trade Union Act it is simply stated “connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person”, whereas in the Trade Disputes Act it replaces that with “connected with one or more of the following matters - (a) to (f) quoted above.”

In my judgment paragraphs (a) to (f) are merely an exposition of the definition given in the Trade Unions Act. All those paragraphs would come under one or the other of the matters contained in the definition given in the said Act.

As the respondent concedes that it was a trade dispute and that in my judgment the dispute was covered by both definitions I am unable to support Mr Waleilia’s submission. The strike action was clearly in furtherance of the trade dispute and I would therefore answer the applicants first two questions in the affirmative.

It is not in dispute that the three demands of the Union were referred to the Trade Disputes Panel by the Permanent Secretary of the Ministry of the Public Service under s.4 of the Trade Disputes Act on the day the strike commenced that is September 2, 1985 and that the Union were informed of this by September 3, 1985. In spite of this referral to the Panel the Union resolved at 8.30 a.m. on September 4, 1985 to continue the strike. As a result of negotiations between the parties the strike ended with effect from 7 a.m. on September 7, 1985.

S.10 of the Trade Disputes Act provides for restrictions on industrial action where a dispute is before the Panel. S.10(1) provides that “.... no person shall do any of the things mentioned in subsection (2)”. Subsection (2), as far as is relevant, provides-

“(2) Those things are-

(a) Calling organising procuring or financing a strike or other industrial action short of a strike in furtherance of the dispute, or threatening to do so.”

Subsection (3) provides that contravention of subsection (1) is an offence, punishable by a fine of $1000 and/or six months imprisonment.

Subsections (5) and (6)(a) provides as follows-

“(5) If the court finds that the ground on which the application is made is well-founded, the court may, if it considers that it would be just and equitable to do so, grant relief to the applicant in either or both of the following forms.

(6) Those forms are-

(a) an order requiring the respondent to compensate the applicant for the loss suffered.”

The fact is not disputed that when the Union resolved on September 4, 1985 to continue the strike the dispute has already been referred to the Panel. S.10 of the Trade Dispute Act 1981 thereupon became active and the applicant is now entitled to his declaration that he is entitled to an order or relief in terms of s.10(5) and (6)(a) of the Trade Disputes Act 1981.

I so order.