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Public Employees Association of PNG v Liosi [1983] PGNC 3; N405 (1 March 1983)

Unreported National Court Decisions

N405

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 149 OF 1983
BETWEEN: PUBLIC EMPLOYEES ASSOCIATION OF PAPUA NEW GUINEA
FIRST PLAINTIFF
AND: NAPOLEON BIYUWO LIOSI
SECOND PLAINTIFF
AND: PUBLIC SERVICES COMMISSION
DEFENDANT

Waigani

Kapi DCJ
1 March 1983

INTERLOCUTORY INJUNCTION- proper principles implied. Sections .37(2), 41 and 47 of the Constitution considered. Section 85 of Public Services Act (Chapter 67) considered.

Cases Referred To

Employers Federation of Papua New Guinea v. Papua New Guinea Waterside Workers and Seaman’s Union and Lawrence Titimur, Tony Hartwell and Didiulosi Boshen - Unreported Judgement of the National Court dated 11th October 1982, N393

Sudy Iaku v. Commissioner of Police, Ex-parte The State - (1980) P.N.G.L.R. 27

In the Matter of a Reference under Section 18 of the Constitution and In the Matter of Sections 15, 16, 17, 18, 19 and 20 of the Inter-Group Fighting Act 1977 - Unreported Supreme Court Judgement No. SC200(M) dated 10th June 1981

In the Matter of Sections 37(4) and 37(5) of the Constitution and In the Matter of the validity of Section 19AB(2) (e) (iii) of the Motor Traffic Act 1950, Section 138A(1)(b) of the District Courts Act 1963, and Section 38A(1)(c) of the Local Courts Act 1963 and In the Matter of a Special Reference under Section 19 of the Constitution by the Public Solicitor - Unreported Supreme Court Judgment No. SC223 dated 22nd March 1982

Legislation Referred To

Constitution of Papua New Guinea

Public Services Act (Chapter 67)

INTERLOCUTORY JUDGMENT

KAPI DCJ: Ient months there has been been negotiations between the Public Services Commission and the executive of the Public Employees Association of Papua New Guinea. Thegotiations covered a wide range of claims by the Associaticiation over conditions of employment of nationals by the Public Services Commission. The parties failed to reach a compromise. It appears from the evidence that the Public Employees Association held a plebiscite amongst its members to determine a strike action. It is alleged that the plebiscite favoured a strike action. The strike was proposed for 21st February, 1983 by the Executive of the Public Employees Association. It is not clear how many public servants went on strike, but a number did go on strike. This prompted certain proposed course of action by the Public Services Commission. The intention by the Public Services Commission to dismiss public servants who went on strike was broadcasted nation-wide which is evidenced by the newspaper clippings. It is not disputed by counsel for the Commission that this is what the Public Services Commission intends to do. In fact the Public Services Commission has already gazetted the various positions within the Public Service, which are expected to be vacant by the proposed dismissals. In the wake of the proposed action by the Public Services Commission, the Association has taken out a writ of summons against the Public Services Commission seeking two declarations:

1. &ـ t6at that the defe defendant is not empowered to dismiss or otherwise penalise public servants who took part in the strike without being afforded the right to be heard; and

2. ـ҈ t60; that ssat ss.66, 68 and 85 of the Public Services Act are unconstitutional.

Pending the hearing of this action, the applicants by ace ofon have applied for an interim injunction to rest restrain rain the Public Services Commission, its agents and servants:

(a) from penalisieg thlipuberv servants without the right to be heard; and

(b) ـ from taom taking any proceedings against these public servants pursuant to ss.66, 68 and 85 of the Public Services Commission Act.

latiothe forder, the applicants do not press this this, on the undertaking given by the Pube Public Slic Services Commission through Counsel that the public servants it intends to charge will not be dismissed summarily but will observe the rules of natural justice. The arguments before me were confined to the second order in the Notice of Motion.

The law is now settled that before an interim injunction can be granted, the applicants must satisfy the court:

(a) ـ&#1hat that there isre is a serious question to be determined; and

(b) &#1hat the balance of conveconvenience favours the grant junct/p>

The authorities supporting these propositiositions aons are now set out in the case of Employers Federation of Papua New Gu/u> vPapuaGuinea WaterWaterside side WorkeWorkers and Seaman's Union and Lawrence Titimur, Tony Hartwell and Didiulosi Boshen. Unreported judgement of the National Court, dated 11th October 1982, N393.

The course of action is based on the argument that ss.66, 68 and 85 of the Act are inconsistent with s.37(3) of the Constitution and are therefore invalid. On this argument, Counsel for the applicants relied particularly on the unconstitutionality of s.85. Counsel for the applicants developed his argument in the following manner. He submitted that the offence created by s.85 of the Act is an offence which could not be described as a disciplinary offence. He submitted/that it is an offence in the nature of a crime which should be adjudged by an independent and impartial court such as courts established under the National Judicial System. To put it differently, he submitted it is a criminal offence. He then submitted that s.37(3) of the Constitution deals with such criminal offences and therefore it follows that such an offence must be dealt with by an independent and impartial court. He submitted that under s.85(2) of the Act, Public Services Commission is the body which lay the charges and then determine the charge. This, he submitted, is not an independent and an impartial court.

At the outset, I should point out that both Counsel do not appear to dispute the interpretation that s.37(3) of the Constitution does not apply to disciplinary offences, it is concerned with criminal offences. With respect, this appears to be the correct view having regard to various decisions of the Supreme Court in relation to s.37(4) of the Constitution which also refers to the word "offence". See Unreported judgment of the Supreme Court, SC 200(M) dated 10th June 1981, Unreported judgment of the Supreme Court, SC 223 dated 22nd March 1982. There would also appear to be some support for this view in the case of Sudy Iaku v. Commissioner of Police; Ex-parte The StateN405.html#_edn1011" title="">[mxi]¹, where the Court there was discussing the application of s.16 of the Criminal Code to disciplinary offences where it was held that disciplinary offences are quite distinct from crimes. The parties did not contest the interpretation of s.37(3) and it's application. This is very significant. The question to be determined, therefore, in this application is, whether the offence created under s.85 of the Act is a disciplinary offence. If it is, s.37(3) has no relevance; if it is not and that it is a crime, s.37(3) is relevant. Whether or not a serious question is raised to be decided, depends on this question. Section 85 of the Act does two things. First, it deals with what is an illegal action against the peace and good order of the country. Second, it deals with how an illegal action may be dealt with and by what authority. In this instance, the Public Services Commission may summarily dismiss such an officer who commits the illegal action. Reading this section in isolation, it could not be concluded that an illegal action is a disciplinary offence. The only reference to disciplinary offence is in sub-s.(2) which states that a person committing the illegal action may be dismissed summarily without regard to the procedure set out dealing with disciplinary offences. It appears that this section treats this offence as a separate offence from the other disciplinary offences. However, it is to be noted that s.85 appears under Part VII of the Act which deals with Disciplinary Offences, Board of Inquiry and Appeals. Section 65 which appears at the beginning of Part VII, Division 1, defines disciplinary offences. Amongst other definitions, s.65(1)(a) provides the following:

“65(1) An officer who:

(a) ټ commitsmmits a breach of this Act.... is guilty of a disciplinary offence and is liable to be dealt with and punished under this part.” (My emphasis).

The question then arises, when a public servant wntravthe provision of n of s.85,s.85, is he in breach of the Act? The answer to this inquiry must certainly be YES. The Parliament in its power and wisdom has set down certain behaviour by public servants which shall be deemed to be an illegal action. It is intended to prevent the public servants from taking a course of action, that is, not to strike. If they take any action which is in contravention of the section, it is clear breach of this Act. It follows from this that a person who commits an illegal action as defined under s.85 of the Act, he is committing a disciplinary offence within the meaning given by s.65(1)(a) of the Act. Ordinarily, I would think that when a person is charged for illegal action, the procedure prescribed for disciplinary offences would be followed. The only difference is that under s.85(2) of the Act, the Public Services Commission has a discretion to summarily dismiss that Officer without the prescribed procedures. In my view, this is the only essential difference.

It follows from this reasoning that s.37(3) of the Constitution is not relevant to disciplinary offences. The constitutionality of s.85 of the Act does not arise.

Counsel then relied on s.41 of the Constitution. Counsel did not develop this argument at all. I consider that this is a separate argument. It does not deal with constitutionality of an act done or a statute. It deals with whether an act done under a valid law is unlawful. So far, the Public Services Commission has not taken any steps to do what it proposes to do, which could be said to be unlawful under s.41. From this point of view, this issue is raised prematurely. The provision may arise at a latter point in time when such action is taken. This can be the subject of a separate course of action.

Finally, I brought to Counsels' attention the possibility of an argument that s.85 of the Act could be unconstitutional for being inconsistent with s.47 of the Constitution. Counsel for the applicants submitted that he did not have this argument in mind as the basis of the cause of action. No detailed submissions were made by either Counsel. For these reasons, I do not regard this issue as part of the course of action and therefore not part of the arguments on this application. However, this issue can be taken up in a separate course of action. Nevertheless, I intend to make a few remarks by way of dictum. Section 47 of the Constitution guarantees freedom of assembly and association. It is a freedom given to persons to join political parties, unions and other associations. The Public Services Association is such an organisation. All members who have joined Public Employees Association have exercised the right given by s.47 of the Constitution. This right deals with:

(a) & the right to assemble mble and associate;

(b) ; the right ro form and;

(c) the right to belong to or not to belong to a political party, and industriaanisaor otorms sociation.

That is as s as far afar as s.4s s.47 goe7 goes. It does not concern itself with the activities of a political party, an industrial organisation or other associations. A strike by the Public Employees Association may be decided by the national executive, congress or plebiscite under s.50 of the Constitution of the association. That is an activity in which the organisation may or may not be involved in depending on the decision on those who have the power to decide. There is nothing in the Constitution on the question of strikes. There is no freedom of strike. Whether or not a strike by public servants is allowed, one must look to other laws. In the case of public servants, Public Services Act is the relevant Act and in accordance with s.85, it does not allow public servants to go on strike. The fact that s.85 prevents public servants from strikes does not affect the right to assemble, the right to form, the right to belong or not to belong to the Union. In my view, s.85 could not be said to be in contravention of s.47 of the Constitution. I do not see that a serious question may be raised by this argument.

I have therefore concluded that the applicants had failed to show that a serious question has been raised for decision by the National Court, I therefore cannot exercise my discretion to grant the injunction which is asked for on the second order in the Notice of Motion.

Lawyers for the Applicant/Plaintiff: Beresford Love, Francis and Company.

Counsel: Mr. I. Molloy and Mr. B. Larkin.

Lawyers for the Defendant: Mr. O. Emos, State Solicitor.

Counsel: Mr. O. Emos