HIGH COURT OF SOLOMON ISLANDS

CIVIL CASE NO. 32 OF 2001

SOLOMON ISLANDS NATIONAL UNION OF WORKERS

-V-

ABA CORPORATION & OTHERS

HIGH COURT OF SOLOMON ISLANDS
(PALMER J.)

HEARING: 10th August 2001
JUDGMENT: 17th August 2001

A.N. Tongarutu for the Appellant
A. Radclyffe for the Respondent

PALMER ACJ. In the interlocutory judgment of this Court delivered on 1st June 2001, this Court disposed of the majority of the appeal grounds raised in this appeal leaving only two grounds for determination, grounds 4 and 5. They read as follows:

“4. The Trade Dispute Panel erred in law in directing the case to proceed to a full hearing prior to determining whether the Appellant has a substantial proportion of the employees as its members.

5. The Panel’s directive orders are misdirections in law in that the directions adopted by the Panel in determining the recognition issue are irregular.” 

The Background Facts

Shopkeepers who worked for the Defendant Companies throughout the height of the ethnic tension claim they were entitled to be paid danger allowance as they had risked their lives serving and keeping the shops of the Defendant Companies open throughout. They lodged their claims to their respective employers through their union, Solomon Islands National Union of Workers (hereinafter referred to as “SINUW”). The Defendants objected to the right of SINUW to represent its workers claiming they did not have the mandate of the majority of its members. The preliminary issue thus which came before the Trade Disputes Panel (hereinafter referred to as “the Panel”) was the question of recognition. When the matter came before the Panel for preliminary hearing on 16th February 2001, Counsel, Mr. Radclyffe for the Respondents, sought a number of orders from the Panel. These can be summarized as follows:

1.	Orders requiring a number of witnesses to be called.

2.	SINUW to provide the number of employees in each company who were financial members of the union as at various times stated in the application.

3.	SINUW to provide for inspection of the Union’s membership register required to be kept in accordance with Reg. 15 of the Trade Unions Regulations.

4.	SINUW to provide an up to date copy of the Union’s Constitution and the Rules.

SINUW appeared at that hearing represented by its President, Mr. David Tuhanuku. Mr. Tuhanuku was not able to properly represent the interests of the Appellant in that hearing and so asked for an adjournment to be able to instruct legal counsel. This was granted and the matter adjourned for 14 days. On 28th February 2001, Mrs. Tongarutu appeared as Counsel for SINUW. By then the number of Defendant Companies seeking to be joined and represented by Mr. Radclyffe had increased. At that hearing it was agreed to hear the application of the Defendant Companies afresh. The same orders sought by the Defendants were placed before the Panel again for consideration. In her submissions in opposition to the orders sought, Counsel Tongarutu pointed out that she was of the view the process of negotiation and consultation had not yet been exhausted and that accordingly she felt the Panel should consider conducting a secret ballot of the employees on that issue. She argued the Panel had not exercised its powers to assist the parties resolve the issue of recognition and so should not delve into an enquiry without giving opportunity to the parties to settle the matter by negotiation and consultation. In his reply, Counsel Radclyffe argued that as far as they were concerned, the question of negotiating a settlement was no longer possible. He also argued that the decision to hold a secret ballot is a discretionary matter anyway. In any event, he was of the view it was important SINUW must first of all establish what members they have as recorded in the register. 

Ruling of the Panel

In its Ruling delivered on 1st March 2001, the Panel identified what it felt was the issue of contention between the parties.

“Counsel for the respondent raised legal arguments over the issue of witness orders for which the Panel is compelled to address. The respondent argued that in order to make orders under Rule 7(2) (a) of the Trade Disputes Panel Rules, the Panel must first determine that the matter referred in the referral (recognition in this case) is not likely to be settled by negotiation. 

In our view the purpose of the preliminary hearing is two-fold:

(1)	To sort out certain procedural requirements.

(2)	To enable the Panel to form an opinion as to whether or not the dispute is likely to be settled by negotiation between the parties (see s.4 (3) of the Trade Disputes Act (Cap. 75).

If the Panel is of the opinion that the dispute is not likely to be settled by negotiation between the parties then the matter proceeds to a full hearing in which the Panel themselves inquire into the matter under section 6(1) of the Trade Disputes Act.

In this case, after hearing submissions and having considered the correspondences between the parties prior to the referral, the Panel has formed the opinion that the dispute is not likely to be settled by negotiation and accordingly, the matter must proceed to a full hearing. However, having formed that opinion, the parties are not in any way precluded from re-entering into further negotiations if they both agreed.” (See Page 1 commencing at paragraph 2)

It is that conclusion by the Panel, that the dispute could not be settled by negotiation and to proceed to a full hearing, that forms the subject of this appeal. The Appellant contends as its first ground of appeal that such a direction was wrong in law in that the Panel was yet to determine whether a substantial proportion of the employees were its members. This raises the question whether the Panel was obliged to determine that question first before proceeding to any inquiry and secondly was there a failure, which was fatal. The second ground of appeal alleges that the directions issued by the Panel were irregular and as a result were wrong in law.

The Powers of the Panel

Section 4(1) of the Trade Disputes Act (“the TDA”) allows any party to a trade dispute to refer the dispute to the Panel at any time. Subsection 4(3) provides that on a reference of such a dispute the Panel shall first consider if the dispute is likely to be settled by negotiation between the parties or not. Subsection 4(4) further provides that if in their opinion it is likely to be so settled, they should offer assistance. The provisions of section 4 thus in essence give room for conciliation. The question whether the dispute is likely to be settled by negotiation however, is a matter within the discretion of the Panel. It is an opinion that they form after consideration of the dispute, any materials before them and submissions of the parties. It is extremely rare that such an opinion of the Panel should be the subject of an appeal as hardly does such an opinion entail a point of law. In order for the Appellant to succeed under such grounds it must show that an error of law that goes to jurisdiction had been committed by the Panel in the exercise of that discretion. Has any such error been demonstrated? The only so-called error alleged in the appeal is that the Panel did not determine whether the Appellant had a substantial proportion of its employees as its members. But the question for determination by the Panel under subsection 4(3) is whether or not in its opinion the dispute is likely to be settled by negotiation, not whether the Appellant had a substantial proportion of its employees as its members.

In it’s ruling (see paragraph 5 page 1) the Panel expressly stated:

“In this case, after hearing submissions and having considered the correspondences between the parties prior to the referral, the Panel has formed the opinion that the dispute is not likely to be settled by negotiation, and accordingly, the matter must proceed to a full hearing. However, having formed that opinion, the parties are not in any way precluded from re-entering into further negotiations if they both agreed.”

One of the submissions raised for the Appellants was that they had not been given opportunity to address or make any submissions on the correspondences referred to by the Panel in forming its opinion and therefore was in breach of their rights to be heard. Unfortunately, that is not entirely correct. Although details of the correspondences considered by the Panel were not disclosed it does not take much to work out what they were. They were simply correspondences exchanged between the parties prior to the referral. The parties would have had access to them anyway. I fail to see any jurisdictional error of law committed by the Panel in having regard to them. To the contrary, it is a matter, which falls squarely within their jurisdiction as a relevant matter they can take into account in determining the question whether the dispute is likely to be settled by negotiation or not. The Appellant however contends it was not given opportunity to make submissions on those correspondences. With respect, I feel this submission is misconceived. It is not correct the Appellant was not given opportunity to be heard. It was represented by learned Counsel Mrs. Tongarutu at the hearing but that she did not it seems make any submissions touching those correspondences. Her failure or omission cannot amount to a breach of fairness or breach of any rules of natural justice. Both in its written and oral submissions, Mrs. Tongarutu did point out very clearly what her client’s views were (see submission (1) of the Appellants written submissions, and oral submissions of Mrs. Tongarutu at page 2 of the Panel’s record of proceedings). After hearing Counsels and considering the materials before it, the Panel formed the opinion that the dispute was not likely to be settled by negotiation. I fail to see how the opinion of the Panel in those circumstances can be said to amount to any error of law.

On the issue of recognition, this is specifically catered for under section 5 of the TDA. Subsection 5(1) defines “recognition issue” as “means an issue arising from a request by a trade union for recognition by an employer, including (where recognition is already given to some extent) a request for further recognition.” The dispute which arose between the parties stem from the fact that the Defendant Companies had refused to give recognition to the Appellant as the trade union representing the interests of its workers. Subsection 5(2) provides that where a recognition issue is referred to the Panel, the “Panel may, in such manner as they think fit, consult the employees in respect of whom recognition is sought to be granted; and the consultation may take the form of a ballot of the employees.” Subsection 5(3) explains the purpose for which the power to conduct a ballot may be exercised. It is two-fold; to assist the parties reach a settlement by negotiation or to assist the Panel in making an award. The first and important point to note about the power of the Panel to consult the employees is that it is discretionary; “Panel may, in such manner as they think fit,”. If it decides not to, that is the end of the matter. It is a matter within its discretion. The fact the Appellant desires or feels so strongly that a ballot should be conducted does not affect the discretionary power to be exercised by the Panel. It is for the Panel to make that decision, whether rightly or wrongly, the responsibility lies with them. Even if the decision not to conduct a ballot is wrong, that does not affect the validity of the decision. The error committed by the Appellant is in assuming that the refusal by the Panel to conduct a ballot was unlawful. The most Appellant can do is to present its case to the Panel as to why it feels a ballot should be conducted or why the dispute can be settled by negotiation. That with respect is what occurred on 28th February 2001 before the Panel adjourned to consider it’s ruling. There was nothing unlawful about that. The Panel actually went further to clarify to the parties in it’s ruling that there was nothing to stop them from re-commencing negotiations. So the fact a decision had been made against the wishes of the Appellant by the Panel did not take away their rights to seek negotiation a fresh with the Defendants. The Defendants on the other hand had taken the view that there was no point in any further negotiations, a view, which the Panel unfortunately for the Appellants, agreed with and decided to commence an inquiry into the dispute itself. I find nothing wrong with the decision of the Panel not to conduct a ballot or to commence an inquiry. Those were matters solely within its discretion to determine and in so doing it could go right or left, make a right decision or a wrong decision. The fact the Appellant feels it may have been a wrong decision by the Panel makes little difference to the discretionary power exercised. It can be viewed as an error (if it was an error at all) within jurisdiction. But that is not the end of the matter. Simply because the Panel had formed the opinion that the dispute could not be settled by negotiation does not mean the Panel is not able to make any further directions for a ballot. It can still do that if that would assist it in the making of an award. So far that had not arisen. The Panel may during the hearing itself consider a ballot, that is a matter for the Panel to decide.

Where the Panel decides to go into arbitration, section 6 covers that situation. Subsection 6(2) provides that notice shall be given to the Minister responsible and the parties as to the date on which the inquiry is to begin. Subsection 6(3) allows the parties, the Minister and any other person the Panel considers has an interest in the dispute to give evidence. In this instance Panel had made decision to hold inquiry, so section 6 applies. Parties had been informed of the hearing date in its Ruling but it is not clear whether the Minister had been informed. If not, then Panel is required to give notice under subsection 6(2). The failure to give notice in the circumstances of this case however may not be fatal provided the Minister is given opportunity to submit evidence. Again I fail to find any error of law being committed by the Panel in respect of this section.

There was some reference to Rule 7 of the Trade Dispute Panel Rules (“the Rules”). Rule 7 relates to directions, which the Chairman of the Panel may make where the Panel has decided to embark on an inquiry. This was what the Panel collectively did in it’s ruling of 1st March 2001. Again I fail to see how the directions issued by the Panel amount to any error of law that would warrant the intervention of this Court. There was some mention by Counsel for the Appellant that directions 3 and 4 of the Panel requiring production of documents were unfair in that they were made only against the Appellant and none against the Respondent. Unfortunately as correctly submitted by Mr. Radclyffe, this submission is not open to the Appellant, as it did not oppose the orders sought by the Respondent at the hearing on 28th February 2001 (see written submissions of the Appellant). But there is another reason why this submission cannot amount to any unfairness. The Appellant can still make application to the Chairman that the Respondents be required to produce documents under Sub-rule 7(2)(b) and (c). 

As to the ground that the directions issued were irregular this with respect cannot be sustained. The crucial question must now be asked. Has the Panel committed any error of law or irregularity in its directions amounting to a jurisdictional error of law that would warrant the intervention of this Court? From what has been stated above, the answer must be no. The appeal accordingly should be dismissed with costs and the matter returned to the Panel for a new date to be fixed for the inquiry to be held.

ORDERS OF THE COURT:

1.	Dismiss appeal.

2.	Remit matter to the Trade Disputes Panel for a new date to be fixed for the inquiry to be held.

3.	Appellant to bear the costs of the Respondents in this appeal.

THE COURT.