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Workers Union of Solomon Islands v Mas Solo Investment Ltd [2020] SBTDP 1; L9-5 of 2017 (31 January 2020)

IN THE TRADE DISPUTES PANEL

SOLOMON ISLANDS

CASE NO. L9/5/2017

BETWEEN:

Workers Union of Solomon Islands (Referred to hereafter as WUSI)

(COMPLAINANT)

AND:

Mas Solo Investment Ltd
(RESPONDENT)

Panel: 1. Willy Vaiyu - Deputy Chairman
2. Brain Ulufia - Employer Representative
3. Edward Bamu - Employee Representative

Appearances: Tony Kagovai for the Complainant

Respondent – Rodgers Tovosia

Date of Hearing: 29/08/2018
Date Finding Delivered: 31/01/2020

This is the Panel’s ruling on a preliminary issue that was raised by the Panel during a hearing on the 29/08/2018 on “Whether or not the trade disputes referred to the Panel on the 29/09/2016 are trade disputes that can be referred to the Trade disputes Panel under Section 4 of the Trade Disputes Act [Cap 75] 1981?”
The disputes were centred on two issues and they were;

1. Housing allowance for employees and,
2. Under paying some employees.
   

The Panel made an order that parties made written submissions within 21 days on the preliminary issue.

Counsel for the Respondent Mr. Tovosia submitted that the disputes referred to the Panel on the 29/09/2016 by WUSI does not meet the criteria set out in Section 4 (2) (a), (b) & (c) of the TDP Act (1981) and must be strike out.

WUSI on behalf of the complainants submitted that Section 4(1) of TDP Act gave the complainant’s liberty to refer the trade dispute to the Panel and the issues referred to it on the 29/09/2016 are disputes that can be referred to the Panel as they are trade disputes as defined in the TDP Act 1981 Schedule Section 1.
The Schedule to the TDP Act 1981 Section 1 has the following as the definitions of what are trade disputes;

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 procedures relating to any of the matters mentioned above, including the recognition of any trade union by an employer. (Bold, underline, italic Panel emphases)
The types of referrals of disputes to the Panel are “recognition issues” Section 5, TDP Act 1981, “trade disputes” Section 4, TDP Act 1981, and “unfair dismissals” Section 6, of the Unfair Dismissal Act 1996.

This ruling of the Panel concerns referrals under Section 4 of the TDP Act 1981.

The Preamble of the TDP Act 1981 states;

“An act to establish a panel to encourage settlement of trade disputes and to make binding awards where negotiation fails; to restrict industrial action while the panel consider the dispute; to provide for the enforcement of awards and collective agreements and for the recovery of the expenses of providing the panel; to repeal the trade disputes act 1976; and for connected purposes”.

This Preamble states why the Panel is established and the purpose for its establishment.

This was also highlighted by the High Court in Queen v Trade Disputes Panel [1997] SBHC 117; HCSI-CC 287 of 1997 (22 December 1997) and has to say this;

“The law confers power on the Trade Disputes Panel to deal with disputes between employees and employers in connection with terms and conditions of employment, terminations of employment or membership of a trade union and other matters set out under the definition of “trade dispute” in the Trade Disputes Act, 1981.

There is no dispute that the issues referred to the Panel by WUSI on the 29/09/2016 were trade disputes as defined under Schedule 1 of the Act.

However, in order to answer the question on the preliminary issue at hand we will consider the process and procedures of how any dispute is referred to the Panel is dealt with before any conciliation or arbitration under the TDP Act.

TDP Act Section 4 (1) states;

“A party to a trade dispute may at any time refer the dispute to the Trade Disputes Panel.”

Therefore any party to a dispute can referred a trade dispute to the Panel at any time.
Once a trade dispute is referred and is registered the Secretary gives notice to the parties pursuant to Rule 3 of the TDP Rules, and Panel considers whether the dispute is likely to be settled by negotiation (Conciliation) between the parties.

TDP Rules 3 states;

(1) A person who wishes to refer a trade dispute to the Panel shall do so by giving to the Secretary to the Panel a written notice containing the following particulars -

(a) the name and address of the person making the reference;

(b) so far as reasonably practicable, the name and address of every other person alleged to be a party to the dispute; and

(c) the questions at issue between the parties.

(2) On receipt of a notice under paragraph (1), the Secretary shall give notice of the reference to each of the persons named in the notice under paragraph (1).

(3) A notice under paragraph (2) shall be given in such manner (including a radio message) as in the opinion of the Secretary is likely to bring to the attention of the person concerned the fact that the dispute has been referred to the Panel.

(4) For the purposes of the Act, a dispute is referred to the Panel when the last notice in respect of that dispute is given under paragraph (2) (whether or not that and the other notices have been received); and, in the case of a notice sent by post, it shall be treated as given at the time at which it would be delivered in the ordinary course of post.

These Rules were fulfilled by WUSI and TDP Secretary as required, both parties were informed of the referral of the trade disputes to the Panel.

The next requirement was Section 4 (3 – 9) of the TDP Act.

Section 4 (3) and Section 4 (4), (5,) (6), (7), (8) & (9) states;

(3) On a reference of a dispute under this section, the Panel shall first consider whether the dispute is likely to be settled by negotiation between the parties.

(4) If in their opinion it is likely to be so settled, they shall offer the parties to the dispute their assistance with a view to bringing about a settlement.

(5) The assistance given by the Panel may include the appointment of any person ("a conciliator"), who may be a member of the Panel, to offer assistance to the parties with a view to bringing about a settlement.

(6) In exercising their functions under this section, the Panel shall have regard to the desirability of encouraging the parties to the dispute -

(a) to use any collective agreement that exists between them; and

(b) where one of the parties is a trade union or an employers' association, to comply with any rules of the union or association.

(7) If the Panel succeed in bringing about a settlement of the dispute, they shall, if the parties consent, incorporate the terms of the settlement in an order.

(8) Where the Panel make an order under subsection (7), the order shall have effect as a legally enforceable collective agreement between the parties to whom the order applies.

(9) There may be paid to a conciliator such travelling and other allowances, including compensation for loss of remunerative time, as the Minister may determine. (Bold, underline, italic Panel emphases)

Whichever is suitable and applicable to the party’s circumstances Panel will invoke the applicability of the clause to the case.

In this case negotiation between WUSI and Mas Solo failed therefore the trade disputes were not settled at the conciliation stage.

On the other hand if the Panel considers therefore the dispute has to be settled by arbitration after a failed negotiation they shall enquire into the matter with reference to the Minister, pursuant to Section 4 (2) as read together with Section 6 (2) of the TDP Act.

The Panel will then referred the matter to the Minister who then consider the dispute pursuant to Section 4 (2) using the criteria’s therein, makes a ruling for the Panel to enquire into the dispute if it meets the set criteria’s or refuse referral for luck of merit.

Section 4 (2) of the TDP Act states;

(2) If it appears to the Minister

(a) that, in connection with a trade dispute, any industrial action is being or is likely to be taken; and

(b) that the action concerned has caused or would cause an interruption in the supply of goods or the provision of services; and

(c) that the interruption is or would be of such a nature or on such a scale as to be likely to affect the national economy or national security, or create public disorder, or endanger the supply of essential goods or services, he may refer the dispute to the Panel.

Section 4 (2) must be read together with Section 6 (1), (2), & 3) of the TDP Act.

Section 6 (1), (2) & (3) states;

(1) Where a trade dispute is referred to the Trade Disputes Panel and (whether or not they have offered assistance under section 4) the Panel are not of the opinion that the dispute is likely to be settled by negotiation, they shall themselves inquire into the dispute and shall make an award.

(2) Where the Panel decide to enter on an inquiry under subsection (1), they shall forthwith give notice in writing to the Minister and the parties to the dispute of the date on which the inquiry is to begin.

(3) In inquiring into a dispute under this section, the Panel shall, as well as giving the parties to the dispute an opportunity of submitting evidence (either orally or in writing), also give such an opportunity to the Minister, and may give such an opportunity to any person who, in their opinion, has an interest in the dispute. (Bold, underline, italic Panel emphases)

Rule 2 of the TDP Rules states;

2. Subject to these Rules and to the requirements of natural justice, the Panel may determine their own procedure.

Having considered the submissions put forward to the Panel by the parties the Panel considers Section 4 and Section 6 (1), (2), & 3) of the TDP Act in answering the preliminary question,

“Whether or not the trade disputes referred to the Panel on the 29/09/2016 are trade disputes that can be referred to the Trade disputes Panel under Section 4 of the Trade Disputes Act [Cap 75] 1981?”

ORDERS

1. WUSI pursuant to Section 4 (1) of the TDP Act 1981 can refer the disputes centred on two issues referred to the Panel on the 29/09/2016.
   
2. The Panel are not of the opinion that the dispute is likely to be settled by negotiation (Section 6 (1)).
   
3. The Panel is of the view that it cannot refer the matter to the Minister (Section 6 (2) & (3)) because the Claimant fall short of condition stipulate under Section 4 (2) for the Ministers consideration.
   
4. This case is dismissed in those circumstances.
   

APPEAL
There is a right of appeal within 30 days by any aggrieved party to the High Court on question of law only pursuant to Section 13 of the Trade Disputes Act 1981.

On behalf of the Panel,

Willy Vaiyu.
Deputy Chairman
Trade Dispute Panel