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Court Victory for PNG Workers

By Jeff Shaw - Workers Online PNG Correspondant and NSW Attorney General

Workers who claim to have been unfairly dismissed have won a major victory in the National Court of Justice in Papua New Guinea.

In a judgment delivered on 5 May 1999 PNG's highest court (constituted by Justices Woods, Salika and Sawong) determined that industrial tribunal set up under the Industrial Relations Act had power to consider an industrial

dispute about dismissal and order the reinstatement of a dismissed worker.

In 1993, a stevedoring employee (Ben Kairu) had been dismissed and an industrial tribunal held that the termination of his employment was harsh and oppressive and that he should be reinstated in his employment.

The employer said that there was no industrial dispute which gave the tribunal jurisdiction to reinstate the worker. But the court applied Australian law determined by the High Court of Australia in the Ranger Uranium Mines Case of 1987 and said that although the industrial tribunal had made a determination of legal rights "this was part and parcel of its exercise of its administrative arbitral powers" and that the tribunal could reinstate a worker as part of its consideration of "industrial fairness" which the court found clearly part of the mandate of an industrial tribunal.

The employer also submitted to the court that the tribunal had not considered the position from the point of view of the company and Papua New Guinea. However, the court held that there was no basis upon which to re-open the argument of these points that was conducted before the industrial tribunal.

The court took a relatively limited view of its role in reconsidering the tribunal's discretionary decision to reinstate a worker saying that "the role of judicial review is a review of the procedures of the body being reviewed, it is not an appeal with a discretion to consider other matters

not part of the original hearing."

The court concluded by saying that the tribunal was entitled to reach the findings, of fact that it did and that it was not open to any court to question the discretionary decision of the tribunal.

This was a good victory for the workers of Papua New Guinea and makes it clear, contrary to some earlier decisions, that an unfairly dismissed worker can achieve reinstatement under the industrial legislation of PNG.

The matter was argued for the union representing the individual workers by Michael Walton, a Sydney lawyer, who has since been appointed as Vice-President of the Industrial Relations Commission of New South Wales.

Jeff discussed some of the earlier uncertainty in "Labour Law in Papua New Guinea: Some Recent Developments" by J.W. Shaw and MJ Walton in Volume 8, Australian Journal of Labour Law, April 1995, (p.80)

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»	Unions Wins Own Safety Prosecution
»	Timor Protest Calls for UN Troops
»	Pay Equity Jitters as Report Gathers Dust
»	Paid Maternity Leave: One Step Forward - One Step Back
»	Court Victory for PNG Workers
»	First For Union With Multicultural Arts Grant
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»	Unions Join Sorry Ceremony

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»	Sport
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»	Piers Watch

»	Concern at Timor Attitudes

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