N1972

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 793 OF 1993

BETWEEN:

AIR NIUGINI LIMITED
Plaintiff

AND:

BEVERLEY DOIWA
As Chairperson of the Industrial Relations Tribunal
Defendant

Waigani: Amet CJ
2000	: 8 June

Administrative Law – Judicial Review – Principles of – Basis and scope of Court’s power – National Court Rules Order 16.

Constitutional Law – Judicial Review – Inherent Power of Courts – Constitution s 155(2)(4).

Judicial Review – Wednesbury Unreasonableness – Principles of – Basis and scope of court’s power – Application of –

Counsel:
W Duma, for the Plaintiff.
M Murray & C Makail, for the Defendant.

8 June 2000

AMET CJ: This is an application by Air Niugini under Order 16 of the National Court Rules for judicial review of the decision of the Industrial Relations Tribunal (the Tribunal) ordering the reinstatement of the members of the PNG Aircraft Engineers Association (the Association) who were terminated from their employment by it.

FACTS

On the 26th August 1999 the Head of State, established the Tribunal, pursuant to Sections 18 and 29 of the Industrial Relations Act, (the Act) and on 27th August 1999 referred to it for investigation, enquiry and decision the "industrial dispute" between the Association and Air Niugini concerning the dismissal of 94 members of the Association by Air Niugini.

THE DISPUTE

A dispute arose between the Association and Air Niugini when Air Niugini failed to pay a 5% Consumer Price Index (CPI) adjustment declared by the Government in 1997, to members of the Association because of financial limitations. By May 1999, Air Niugini had not paid this although it paid the 1998 CPI adjustment. In April and May 1999 the Association made representation to Air Niugini for the payment of this adjustment, and gave notice that failure to respond positively would result in industrial action. Air Niugini did not respond. It subsequently did acknowledge its liability to pay the CPI adjustment and made a written commitment to pay this entitlement during the week ending 27 August 1999. The Association advised that they would not accept this and insisted that this adjustment should be paid by the 30 July 1999 and failure to do so would result in industrial action.

The Association commenced proceedings in this Court to enforce its claim. On 5 July 1999 the Court ordered Air Niugini to comply with the award and make appropriate payments. On the 21 July 1999, the engineers began a stop-work protest. Air Niugini advised the Association in writing that the stop-work was illegal because the Association failed to give the required seven days notice under the award and they also failed to conduct a secret ballot and they should return to work. The stop-work continued to 23 July 1999 and the engineers returned to normal work on 24 July 1999.

On 29 July 1999, Air Niugini dismissed 61 engineers. In response to this the remaining engineers who had not been dismissed walked off their jobs in support of their colleagues. On 30 July 1999, Air Niugini dismissed another 25 Engineers. Out of a total of 96 Engineers who were terminated 7 had their termination notices revoked, as they were not liable to be dismissed.

TRIBUNAL DECISION

The Tribunal ordered re-instatement on the following basis. It found that Air Niugini was the primary offender in not implementing the CPI adjustment. It found the actions of Air Niugini to terminate officers to be harsh and oppressive. It found also that the actions of the Engineers to be malicious in nature in that they had originally intended to conduct industrial action with the intention of causing disruption to the aircraft flights and to inconvenience the travelling public that weekend. The engineers had also erred in not conducting a secret ballot to determine stop-work action. The Tribunal found that both parties had erred, but fundamentally the mass dismissal exercise conducted by Air Niugini only four days after the engineers returned to work was unwarranted, given that the engineers did return to work after only two full days of stop work. 

THE APPLICATION 

Air Niugini has applied for judicial review of the Tribunal’s decision on the following grounds:

(a)	The Tribunal acted unreasonably and in a manner that no reasonable decision maker would act in failing to take into account the following relevant considerations;

(i)	The likely practical outcome if an order for reinstatement were made

(ii)	The inviolability of the right of Air Niugini as the employer to manage its business, the nature and the quality of work in question and the circumstances surrounding the dismissal.

(iii)	Whether the employer/employee relationship between Air Niugini and the members of the Association had been broken down to such an extent that the parties no longer had the mutual trust required.

(iv)	The test of whether or not Air Niugini had been given "a fair go all round."

(v)	Because reinstatement is an exceptional remedy, whether or not there had been unfair dealing on the part of Air Niugini as the employer.

(b)	The Tribunal took into account irrelevant considerations when it applied principles of the International Labour Organisational Committee on the Freedom of Association.

(c)	The Tribunal was wrong in law in finding that the dismissal of the members of the Association amounted to "an industrial dispute" as defined in the Industrial Organisations Act and the Industrial Relations Act.

PRINCIPLES OF JUDICIAL REVIEW

The general inherent power of judicial review of this Court originates from Constitution s. 155 (2) & (4). In the first instance Order 16 of the National Court Rules provides the means by which judicial supervision of some judicial decision making and administrative action is exercised. It extends to the review of public authorities and persons charged with any public duty where their actions or decisions affect public rights of individuals.

It is established principle that when a court is exercising this power of review, it must keep in mind that its role is supervisory only: that is to say, a role to ensure procedural propriety and fairness is adhered to by the public administrative authorities in the exercise of their powers, bearing in mind that it is that public authority that retains at all times, the Parliament authorised power of decision making in the first instance.

It is also established principle that; "the very concept of administrative discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred. It is not for any court of law to substitute its own opinion for the decision maker; but it is for a court of law to determine whether it has been established that in reaching that decision unfavourable to the party aggrieved the decision maker had directed himself properly in law and had in consequence taken into consideration the matters which upon the true construction of the legislation he ought to have considered and excluded from his consideration matters that were irrelevant to what he had to consider." Or put more compendiously, the question for the court is did the decision-maker ask himself the right question and take reasonable steps to acquaint himself with the relevant information to enable him to answer it correctly.

In essence the inquiry to be conducted in a judicial review is not as to the correctness or otherwise of findings of fact or the ultimate determination or decision but rather the process and procedures by which that decision was arrived at. Fundamentally it is to be recognised that the administrative, quasi-judicial or judicial decision making body is entrusted with the final discretionary power to make a decision or judgement or determination based on all the material facts that are brought to its attention. It is not the function of a judicial review to inquire into the adequacy of such materials or the correctness of the assessment and determination of those primary factual materials but it is a review into the process of applying those primary materials in arriving at the discretionary judgment.

In an English case this proposition was propounded in the following terms:

"Where the existence or non existence of a fact is left to the judgment and discretion of a public body and that fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the Court to leave the decision of that fact to the public body to whom Parliament has entrusted the decision making power save in a case where it is obvious that the public body, consciously or unconsciously, are acting perversely".

I adopt the following statement of principle from another English case: Chief Constable of North Wales Police v Evans [1982] 1WLR 1155 at 1160:

"It is important to remember in every case that the purpose of judicial review is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question."

I also agree with and adopt with respect the remarks by Sheehan J in the Application by Posai [1995] PNGLR 350 after His Honour referred to this statement from Chief Constable of North Wales Police v Evans (supra):

"That is just another way of saying that the Court must not act as a Court of Appeal. The Court cannot make the decision of the public authority for it. All that it is empowered to do is to ensure that the decision is made according to law and within the jurisdiction given to that body."

WEDNESBURY UNREASONABLENESS

The three principal grounds upon which administrative or judicial action is subject to judicial review are (i) illegality, (ii) irrationality, and (iii) procedural impropriety. There is developing a body of authority on a fourth category, which is proportionality. Under the ground of illegality arises the issue as to whether or not the decision maker understood correctly the law that regulates that decision making and gave effect to it. Irrationality refers to what has now come to be succinctly referred to as "Wednesbury Unreasonableness" from Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1KB 223. Lord Greene MR articulated the principles of "unreasonableness" in two senses:

(a)	as describing a range of overlapping heads of discretionary error – including bad faith, dishonestly, regard to irrelevant considerations, lack of regard to relevant considerations (including public policy), proper appreciation of the law; and

(b)	something so absurd that no sensible person could ever dream that it lay within the powers of the authority – a decision that no reasonable body could have come to. 

In a later English case Council of Civil Service Unions v Minister for the Civil Service [1985] 1 AC 374 Lord Diplock gave another description of what it means as:

"… a decision which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it." 

ARGUMENTS FOR THE APPLICANT

The Applicant has contended that the Defendant acted unreasonably in failing to take into account the following factors: the likely practical outcome of an order for reinstatement, the right of the Applicant as the employer to manage its business, the nature and the quality of work in question, the circumstances surrounding the dismissal, whether the employer/employee relationship had broken down to such an extent that the parties no longer had the mutual trust required, whether or not the Applicant had been given "a fair go all round", and because reinstatement is an exceptional remedy whether or not there had been unfair dealing on the part of the Applicant as the employer. 

APPLICATION OF PRINCIPLES

Applying these principles to this application can the decision of the Tribunal based on the facts as found by the Tribunal be said to be one "which is so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it?" Can it be unequivocally contended that the Tribunal did not take these relevant considerations into account? That enquiry requires a judgment on the determination of facts by the Tribunal. 

The issue, however, is whether it can be unequivocally demonstrated that the Tribunal failed to take these considerations into account. And if it were to be so found, whether its decision could be said to be so unreasonable that no reasonable decision-maker could have arrived at it.

I cannot so conclude. I do not consider that the Tribunal did not take these relevant considerations into account. In fact to my mind the Tribunal has made adequate reference to these factors which are indicative of it having taken them into account. I am of the conclusion therefore that the determination arrived at by the Tribunal cannot be said to be so unreasonable or outrageous that it defies logic or accepted moral standards that no sensible person who applied his mind to the same issues could not have arrived at.

Similarly the second ground of unreasonableness being the contention that the Defendant took into account irrelevant considerations in applying principles of the International Labour Organisations Committee on the Freedom of Association is to my mind unsubstantiated. Firstly I do not consider that a reference to those principles is irrelevant, and secondly even if they were irrelevant, reference to them has not rendered the decision arrived at as being unreasonable in the terms described. For the foregoing reasons I do not consider that the grounds of unreasonableness have been made out.

The remaining basis on which judicial review has been applied for is that the Tribunal erred in law in concluding that the actions of Air Niugini in dismissing the members of the Association did amount to "an industrial dispute" as defined in the Industrial Organisations Act and the Industrial Relations Act. The Tribunal thus acted without jurisdiction, it was contended.

The short answer to that contention is that it has been sufficiently determined in this jurisdiction that this expression "an industrial dispute" includes the issues of termination and reinstatement. In fact the case of Island Cargo Services Ltd v. Emmanuel Abau and Ben Kairu and Bunam Damon [SCA 51 of 1996], an unreported decision of this Court of 5 May 1999 affirmed the National Court decision [OS 194 of 1995] which sufficiently confirms the jurisdiction of the Tribunal to inquire into such disputes.

In conclusion therefore, the application for judicial review of the Defendant’s decision is dismissed with costs.

INDUSTRIAL RELATIONS
In conclusion I wish to make some obiter remarks in relation to the climate of industrial relations between Employers and Employee Organisations in recent years. In both the Telikom Workers Union and Post PNG and Air Niugini and the Aircraft Engineers Association, industrial unrest have resulted from the employer organisation not honouring its contractual responsibility to implement wage adjustment for cost of living increases. Employer organisations have contractual legal duty to implement awards and cost of living adjustments immediately. Employee organisations and individual employees ought not to be compelled to take court actions or threaten industrial actions to enforce basic contractual entitlements.
___________________________________________________________
Lawyers for the Plaintiff: Blake Dawson Waldron Lawyers.
Lawyers for the Defendant: Moses Murray & Associates.