Supreme Court
Action No. 151 of 1980
17th March, 1982
MOE, CJ.

Mr. Horace Young, Q.C. for the Applicant
Mr. George Brown, Solicitor General for the Arbitrator
Mr. Derek Courtenay, S.C. for the Christian Workers Union and Ella Mae Bradley

Injunction - Prohibition - Section 3 of Trade Disputes Ordinance, Cap. 143 - Minister has no authority to refer trade disputes for settlement to an arbitration tribunal unless both parties consent - Constitution of Arbitration Tribunal not in accordance with section 3 of the Ordinance - Tribunal without jurisdiction - Order of Prohibition issued.

J U D G M E N T

This is an application for an Order of Prohibition directed to Mr. Glen Godfrey prohibiting him from further hearing and adjudicating upon a reference dated 21st December 1979 by the Minister of Labour to an Arbitration Tribunal constituted of a sole Arbitrator by the said Glen Godfrey.

On Ella Mae Bradley was an employee of the applicant's Company until the 10th February 1978 the date on which a letter for and on behalf of the applicant was sent to her informing her that as of that date her services was no longer required.

The Christian Workers Union on behalf of Mrs. Bradley contended that her dismissal was unjustified and that she was entitled to severance pay in accordance with an agreement between the applicant and the Union (hereinafter referred to as Collective Agreement). The applicant maintained that her dismissal was lawful but agreed to conciliation according to the Collective Agreement. No settlement was reached by that method and on 4th May 1978 the Union wrote to the applicant and the Labour Commissioner requesting, pursuant to Article 2 of the agreement, that the dispute be referred to arbitration. At a meeting between the applicant and the Union held at the instance of the Labour Commissioner an agreement was reached for the payment of a certain sum to Mr. Bradley. The Union subsequently renewed its request for arbitration.

On the 1st August 1978, the Permanent Secretary, Ministry of Labour wrote a letter to the applicant which contained the following paragraph "It would appear that all parties concerned have not been able to come to an acceptable compromise, and since the Union has requested a Board of Arbitration, I would be very grateful to have you concurrence on this matter so that the Hon. Minister can take the necessary action." On the 10th August 1978, the applicant replied to the Permanent Secretary, Ministry of Labour by letter indicating that the applicant did not concur with his suggestion. The applicant next received a letter dated 21st December 1979 signed by the Permanent Secretary, Ministry of Labour which stated "I have been directed by the Minister of Labour, Hon. D.L. Mckoy, to inform you that by virtue of his authority under section 3 of the Trade Dispute (Arbitration & Inquiries) Ordinance, Chapter 143 of the Laws of Belize (Revised Edition 1958) he has appointed Mr. Glen Godfrey, LL.B. as sole Arbitrator in the matter of the dispute which exist between the Christian Workers Union on the one part and Messrs. Maestres Industries Ltd on the other part in the matter of Mrs. E.M. Bradley a former employee of the said Maestres Industries Ltd."

At a hearing by the Tribunal on the 26th March 1980, the authority and jurisdiction of the Arbitrator Mr. Glen Godfrey was challenged on the ground that the Minister of Labour has no authority under section 3 of the Trade Disputes Ordinance (CAP. 143) to refer the dispute concerned to arbitration without the consent of both parties that the applicant not having consented to such reference, the Arbitrator had no jurisdiction to embark upon the arbitration. After hearing argument the arbitrator held that he had jurisdiction. He took the view that the matter was to be determined by a construction of section 3 of the Ordinance and his construction of it was that an agreement by parties to a contract to submit all future disputes to arbitration after other attempts to settle the matter have failed was sufficient consent for the purposes of the Ordinance.

The applicant now seeks the order on grounds much the same as urged before Mr, Godfrey namely that:- (1) the Minister has no authority under the law to refer trade disputes for settlement to an arbitration tribunal unless both parties consent; and (2) the applicant did not within the meaning of section 3 of the Trade Disputes Ordinance (CAP. 143) consent to the references.

I have set out the provisions of section of the Ordinance:

3. (1) Any trade dispute as defined by this Ordinance, whether existing or apprehended, may be reported to the Minister by or on behalf of either of the parties to the dispute, and the Minister shall thereupon take the matter into his consideration and take such steps as seem to him expedient for promoting a settlement thereof.

(2) Where a trade dispute exists or is apprehended, the Minister may, subject as hereinafter provided, if he thinks fit and if both parties consent, refer the matter for settlement to an Arbitration Tribunal constituted of either -

(a) a sole arbitrator appointed by the

Minister; or

(b) an arbitrator appointed by the Minister assisted by one or more assessors nominated by or on behalf of the employers concerned and an equal number of assessors nominated by or on behalf of the workmen concerned all of whom shall be appointed by the Minister:

Provided that the award shall be made and issued by the arbitrator only; or

(c) one or more arbitrators nominated by or on behalf of the employers concerned and an equal number of arbitrators nominated by or on behalf of the workmen concerned, and an independent chairman, all of whom shall be appointed by the Minister:

Provided that where all the members of the tribunal are unable to agree as to their award, the matter shall be decided by the chairman as sole arbitrator.

(3) If there are existing in any trade or industry any arrangements for settlement by conciliation or arbitration of disputes in such trade or industry any branch thereof, made in pursuance of an agreement between organizations of employers and organizations of workmen representative respectively of substantial proportions of the employers and workmen engaged in that trade or industry, the Minister shall not, unless with the consent of both parties to the dispute and unless and until there has been a failure to obtain a settlement by means of those arrangements, refer the matter for settlement in accordance with the foregoing provisions of this section.

The matter proceeded on the basis that this was a matter which was properly reported in accordance with the provisions of the Ordinance CAP. 143. The hearing proceeded also on the basis that the arrangements for settlement as envisaged in subsection 3 of the above quoted section had failed. There is no dispute that for the reference by the Minister of the dispute to settlement by arbitration to be valid both parties must consent. Nor is there any dispute that one party to the dispute, the Christian Workers Union, consented to such reference. The question left for determination then is whether the applicant did consent as required by the provisions of the Ordinance.

It was submitted on behalf of the Arbitrator that when the parties concluded the collective agreement, the applicant consented to the Minister referring to Arbitration a dispute between the parties where conciliation fails. Further the form the Arbitration Tribunal can take is left to the decision of the Minister. For the Union and the employee it was contended that under the collective agreement the parties have provision for the preconditions of the operation of the Trade Disputes & Arbitration Ordinance CAP. 143 and that the agreement shows that once there is a request for settlement that request was intended to trigger the provisions of the Ordinance.

The applicant contends that for the purposes of the provisions of the Ordinance reference can't be made to consent expressed in the collective agreement.

What then is the meaning of the phrase "if both parties consent" in sub-section 2. I think the true import of that phrase emerges from consideration of the submission that the form an Arbitration Tribunal takes under that subsection is left to the decision of the Minister. According to that view it is left to the Minister if he thinks fit to refer the matter to a Tribunal constituted as provided for example by paragraph (b). A study of that paragraph will show that irrespective of what the parties may have consented to prior to the report to the Minister, a Tribunal constituted as set out in that paragraph requires the consent and cooperation of the parties concerned. A study of paragraph (c) shows the same thing. It is or course possible for the Minister to constitute a Tribunal as set out in paragraph (a) without consent for both parties at the time he is going to reference. Thus a Tribunal could be constituted without consent of both parties at the time of reference by the Minister only if constituted as under paragraph (a). It cannot be said that it was intended that the Minister constitute a Tribunal only in accordance with paragraph (a). An interpretation of the subsection which results in saying that consent of both parties is required under paragraph (b) and (c) but not under paragraph (a) would lead to an absurdity. That is the form of tribunal is left to the decision of the Minister under paragraph (a) but not under paragraphs (b) and (c) when the enumeration of the alternative types of Tribunal to be used follows the stipulations "if he thinks fit" and "if both parties consent". This to mind indicates that the consent required under subsection 2 is consent at the time the Minister is going to refer the matter to an Arbitration Tribunal. Again the Legislature could not have intended that the form of the Tribunal was to be left to the Minister for then there would hardly have been need for the phrase "and if both parties consent" and the three subparagraphs (a), (b) and (c).

In the result I take the view that under section 3(2) of the Ordinance CAP. 143 the consent of both parties to a trade dispute is required both at the time he proposes to refer the matter to an Arbitration Tribunal and as to the form the Tribunal will take.

In this case the applicant at the time the Minister thought fit to refer the matter to an Arbitration Tribunal did not consent either to such a reference or to the form in which the Tribunal would be constituted. I hold that the constitution of the Arbitration Tribunal was not in accord with section 3 of the Ordinance CAP. 143 under which he purported to act and the Tribunal is consequently without jurisdiction.

Order of Prohibition directed to Mr. Godfrey to issue.

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