Supreme Court
Action No. 328 of 1983
28th March, 1984
Moe, C.J.

Mr. G. Godfrey, for the Applicant
Mr. Denys Barrow for the Belize Waterfront Employers Association
Mr. G. Brown, Solicitor General for the Arbitrators

Injunction - Order of Prohibition - Whether Tribunal had the authority to select members of the stevedoring gangs - Evidence of surrounding circumstances - Competency of Tribunal - Application refused.

J U D G M E N T

By letter dated 14th April, 1983 the Minister of Labour appointed an Arbitration Tribunal with the following Terms of Reference:-

Terms of Reference

To inquire into the dispute between the Christian Workers Union and the Belize Waterfront Employers Association and specifically to:-

Determine the dispute existing on Article IX Stevedore Gang System and Article XIX, wages for unloading and loading containerized cargo by the waterfront workers being negotiated between the said Christian Workers Union on one part, and the Belize Waterfront Employers Association on the other part, and to inquire and determine

(a) The composition of gang system;
(b) To determine what rates of wages to be paid for the loading of containerized cargo.

At a sitting of the Tribunal on the 15th September, 1983, the Belize Waterfront Employers Association (hereinafter referred to as "the Association") submitted for the consideration of the Tribunal, inter alia:- It is eminently reasonable and appropriate, given the fact that stevedores are employers, that the employer should choose his General Foreman who would in turn choose the other members of the gang. One General Foreman would be responsible for an entire ship. The Christian Workers Union (hereinafter called "the Union") submitted that the question of who should select members of the stevedoring gangs was not within the terms of reference of the Tribunal and invited a ruling from the Tribunal on the matter. The Tribunal declined to rule and deferred its decision until it had heard evidence on the question.

By these proceedings the Association now seeks an Order of Prohibition, directed to the Tribunal, prohibiting them from further hearing and adjudicating upon the question of who is to have the right to select foremen and/or members of the stevedoring gangs on the Belize City Waterfront, on the ground that the question is not within the terms of reference of the Tribunal.

The Applicant submits that the crux of the matter is the meaning to be placed on the word "composition" in the matter to be determined at (a), i.e. the composition of gang system. He contends the meaning is "how gangs are to be made up" which is to be distinguished from "who is to select members of a gang". Further that, the dispute of who is to select was never intended by the Applicant to be submitted to arbitration and was not in fact so submitted.

The Respondent contended that the terms of reference are not clear and that the Court is entitled to look at surrounding circumstances to gather the intention in using the word "composition." Examination of the circumstances discloses that matters in dispute between the parties were both the number of persons comprising a gang and the person who would select the members of the gangs. Implicit in submission of the dispute to arbitration was agreement to submit this particular question for determination.

The Respondent further submitted that prohibition cannot issue, in as much as the tribunal has not yet ruled whether it will exercise jurisdiction on the matter. Reliance was placed on the following passages in Halsbury's Laws of England (Third Edition) Vol. II para.218, "Where proceedings are pending before an inferior court, part of which is within, and part is outside the jurisdiction of the court, no prohibition lies until the court has actually gone beyond its competency and jurisdiction," and the following dictum of Lord Hewart, C.J. in R. v Swansea Income Tax Commissioners (1925) 2 K.B. at 254, "The principle is quite clear that a writ of prohibition is issued only where there is something done in the absence of jurisdiction, or in excess of jurisdiction."

I turn now to determine whether the question concerned is within the competence of the Tribunal. I consider first the meaning of the word "composition" used in the Terms of Reference. Now the ordinary meaning of "composition" is given in Chalmers Twentieth Century Dictionary as "the make-up of a thing, the aggregate of ingredients and manner of their combination." In the Oxford Shorter Dictionary, it is "forming of something in the manner in which a thing is formed." Giving the word "composition" its ordinary meaning, I would interpret the terms of reference as enjoining the tribunal to determine both the matters of the number of persons to comprise a gang and how those persons are to be selected. Or, in other words, not only the aggregate of the membership of the gang, but also the manner of their being put together.

Looking at the document as a whole, I observe first that the Tribunal is enjoined to inquire into the dispute between the Union and Association. What is that dispute? The Terms of Reference shows, as in paragraph 2, that it is the dispute existing on Article IX Stevedoring Gang System - being negotiated between the parties. What then is this Article IX being negotiated. The terms of that Article IX would be gleaned by going outside of the Terms of Reference document.

I am however entitled to seek assistance in interpreting the language used in the Terms of Reference by reference to the circumstances in which the Terms of Reference came to be drawn up.

Turning then to the surrounding circumstances, I find that a collective agreement for waterfront workers was being negotiated between the Union and the Association. They were unable to reach agreement on certain matters. One of these matters concerned what has been variously described as "Gangs" and "Stevedoring Gangs." The Union's proposal was in the following terms:-

GANGS

Container Gangs shall be made up of fifteen (15) Stevedores who will be selected solely by the Christian Workers Union.

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Conventional Cargo Gang shall be made up of nineteen (19) Stevedores.

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Any Additional Gang will be made up of sixteen (16) Stevedores.

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Sugar Gangs shall be made up of eleven (11) Stevedores.

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Any Additional Gang shall be made up of four (4) Stevedores.

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Wheat Gang shall be made up of twelve men (12) (Stevedores)

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Storage Sugar Barge Gang shall be made up of seven (7) Stevedores and any additional Gang shall be four barge men.

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The Association's proposal was in the following terms:-

STEVEDORING GANGS

The Employer or his representative shall select a General Foreman from the pool provided by the Union, and the General Foreman shall select men to make up gangs made up of the following workers:

(A) For Breakbulk or Container ships where the stevedores operate the Ships Gear.

(B) For Breakbulk, Ro-Ro, or Container Ships where Stevedores do not operate Cargo Gear.

(C) For Ships Loading Sugar.

(D) For Ships discharging Wheat.

Consideration of the above circumstances show clearly that the dispute between the parties, i.e. what they could not agree on, concerned the proposals put up by both of them, which included proposals both as to the number of persons to compose gangs and who would select the stevedores, in the case of the Union as far as container gangs were concerned, in the case of the Association in relation to all gangs.

The parties agreed that "the stevedore gangs system ---" was to be put to a Board of Arbitration as agreed by both parties. The phrase used to describe what was agreed to be submitted is all-embracing "stevedore gangs system." There is nothing in the agreement to submit to show that limited aspects of the dispute over the gang system was to be arbitrated. The Board of Arbitration was later appointed with the Terms of Reference now under review. The Terms of Reference used the identical phrase to describe the dispute to be inquired into and determined by the Tribunal.

The evidence of the surrounding circumstances thus confirm that the question of who should select members of the stevedoring gangs is within the competence of the Tribunal. The application is therefore refused and the order nisi discharged.

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