On 29 May 2017, Fairfax Legal, under instruction from PNG Maritime and Transport Workers Industrial Union, was successful in defending the right of employees to take non-violent industrial action.
The matter, which had been before the courts since 2014 was finally resolved, when Justice Canning of the National Court of Justice delivered his judgment giving his opinion that non-violent industrial action is one of the fundamental rights of all employees under the Papua New Guinean Constitution and international obligations.
All relief and declarations claimed by PNG Ports Corporation Limited were refused in our client’s favour. Specifically, the claims were rejected by the court because “employees have an implied right, subject to any express prohibition imposed by law, to engage in non-violent industrial action taken in the context of a genuine industrial dispute.” This implied fundamental right as an employee means all employees can take industrial action during a genuine industrial dispute, unless there is some legislative, contractual, or other reason that bars any such action.
The implied right to take industrial action is protected by the Constitution. The Constitution explicitly enshrines the right to freedom (section 32), freedom from forced labour (Section 43), and freedom of employment (section 48). Moreover, the right for industrial organisations such as unions to act with and on behalf of employees is contained within the more general right to freedom of assembly and association (section 47).
Justice Canning also stated that industrial organisations, their officers and their members also enjoy immunity from civil suit under section 29 of the Industrial Organisations Act. Meaning, that when unions and their members take industrial action during a genuine industrial dispute, they will be exempt from civil liability arising from the cost of their industrial action.
PNG Ports Corporation Limited was ordered to pay costs on behalf of our client, the PNG Maritime and Transport Workers Industrial Union.
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