UNITED TEA, RUBBER AND LOCAL PRODUCE WORKERS UNION v. HAYCARB LIMITED AND A

009-SLLR-SLLR-1997-V3-UNITED-TEA-RUBBER-AND-LOCAL-PRODUCE-WORKERS-UNION-v.-HAYCARB-LIMITED-AND-A.pdf


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United Tea, Rubber and Local Produce Workers' Union v.
Haycarb Limited and Another
93
UNITED TEA, RUBBER AND LOCAL PRODUCEWORKERS' UNIONv.
HAYCARB LIMITED AND ANOTHER
SUPREME COURTG. P.S. DE SILVA, C.J.,
RAMANATHAN, J. ANDPERERA, J.
S.C. APPEAL NO. 59/96.
HIGH COURT (REVISION)
APPLICATION NO. 45/95- 125/95.
L.T. NO. 21/1138/94 – 21/1227/94.
MAY 30, 1997.
Industrial Disputes – Application to the Labour Tribunal – Section 31B of theIndustrial Disputes Act – Joint application by a Trade Union on behalf of 94workmen – Validity of the application – Section 2 (mm) of the InterpretationOrdinance.
The appellant trade union applied to the Labour Tribunal in terms of section 31Bol the Industrial Disputes Act lor relief on behalf of 94 workmen in respect of thetermination of their services. This application was made within the timeprescribed by section 31B (7) of the Act. Thereafter, on a directive sent by theAssistant Secretary of the Labour Tribunal, the appellant submitted separateapplications on behalf of each workman. At the inquiry before the Labour Tribunalthe employer objected to the second set of applications on the ground that theywere time-barred. The President of the Labour Tribunal overruled the objectionholding that the original application had been filed within time and contained allthe names of workmen and the details necessary for making a determination onthe relief sought.
Held:
Even though form D provided by regulation 15 of the Industrial DisputesRegulations relating to applications to the Labour Tribunal made under theIndustrial Disputes Act refers to the "applicant" and "employer”, there is noprohibition against a joint application by more than one workman in terms ofsection 31B of the Industrial Disputes Act or regulation 15 of the IndustrialDisputes Regulations, having regard to the provisions of section 2 (mm) of theInterpretation Ordinance which provides that in every written law, unless there issomething repugnant in the subject or context, “words in the singular numbershall include the plural and vice versa".
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APPEAL from judgment of the Provincial High Court of Chilaw.
E. D. Wickremanayake with Ms. Anandi Cooray and U. Abdul Najeem forappellant.
Gomin Dayasiri for 1st and 2nd respondents.
Cur. adv. vult.
July 28. 1997.
PERERA, J.
The applicant-respondent-petitioner (hereinafter referred to as theappellant) filed an application dated 13.1.94 against the respondent-petitioner-respondent (hereinafter referred to as the respondent) inthe Labour Tribunal (Negombo) holden at Chilaw on behalf of 94workmen who were members of the appellant Trade Unioncomplaining that the services of these workmen had been wrongfullyterminated by the respondent with effect from 7.8.93 (P1)
By letter dated 24.1.94, the Assistant Secretary of the LabourTribunal, Negombo informed the appellant to forward separateapplications in duplicate on behalf of each workman referred to in theaforesaid application and further that if this procedure is notcomplied with, no relief would be granted by the Labour Tribunal.(Vide P2)
The appellant then filed 94 separate applications dated 7.2.94 onbehalf of each individual workman in accordance with the instructionsset out in the letter P2. (P3)
When this matter was taken up for inquiry in the Labour Tribunalthe respondent raised a preliminary objection on the ground that thesaid applications had been filed out of time. The Labour Tribunalhaving considered the written submissions filed by both parties,made Order over-ruling the preliminary objection and held that theoriginal application dated 13.1.94 had been filed within the timeprescribed by law, as it contained all the names of the workmen andthe necessary details which were necessary for making adetermination on the relief sought in the case. The Order of theLearned President is marked P4.
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United Tea, Rubber and Local Produce Workers' Union v.
Haycarb Limited and Another (Perera. J)
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The respondent then filed an application in the Provincial HighCourt of Chilaw seeking its revisionary jurisdiction to revise the saidOrder of the Learned President. (Vide P5)
It was the contention of the respondent that the applications filedby the appellant on 7.2.94 were prescribed by law as they were notfiled within six months of the date of termination of the services of theworkmen as required by section 31(B) (7) of the Industrial DisputesAct (Cap 152). (Vide P9)
The Learned High Court Judge in his Order dated 19.2 96 upheldthe preliminary objection taken by the respondent in the LabourTribunal that the said applications were time-barred and set asidethe Order of the Labour Tribunal acting in revisions.
The appellant then sought special leave to appeal from this Courtagainst the aforesaid Order of the High Court. Special leave toappeal was granted to the appellant on 4.6.96.
At the argument of the present appeal, the only issue which arosefor determination was this question whether the separate individualapplications made by the appellant dated 7.2.94 were referable tothe original single application dated 13.1.94 made by the appellantfor the purpose of computing the prescriptive period.
On this matter, it was the submission of Counsel for the appellantthat the original application made by the appellant to the LabourTribunal dated 13.1.94 (P1) had been filed within the period of sixmonths prescribed by law and therefore should be considered andaccepted as an application duly made to the Labour Tribunal.Counsel contended that the said application was in conformity withthe provisions of the Industrial Disputes Act and the regulations madethereunder, The second set of applications dated 7.2.94 filed by theappellant was merely a response to information conveyed to him bythe Assistant Secretary of the Labour Tribunal by letter dated 24.1.94.(P2). In the aforesaid circumstances, Counsel argued that theindividual applications dated 7.2.94 were indeed referable to the
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original application dated 13.1.94 and received by the LabourTribunal on 24.1.94. It was common ground that the originalapplication had been filed within the time prescribed by law. Counselurged that the Learned High Court Judge was therefore in error whenhe held that the applications of the appellant made to the LabourTribunal on 7.2.94 were not in conformity with the provisions of section31(B) (7) of the Industrial Disputes Act and was thus time-barred.
It was however the contention of Counsel for the respondent thaton or about 1.7.93 the workmen represented by the appellant whowere at the time material to this appeal in the employment of therespondent went on strike over a labour dispute. This matter wasreferred to compulsory arbitration under section 4(1) of the IndustrialDisputes Act. Consequent upon the said reference to arbitration, therespondent addressed a letter dated 4.8.93 to the workmen informingthem that the continuance of the strike when the dispute had beenreferred for arbitration was illegal, and that they would be deemed tohave vacated post if they did not report for work on or before 6.8.93.Despite and without heeding the aforesaid warning, the workmenfailed to report for work even as at 6.8.93. The respondent thenaddressed a further letter dated 7,8.93 to the workmen stating,inter alia, as follows:-
“… we are confirming that your name has been taken off our
register of workers effective from 6.8.93.”
At this stage, the appellant Union acting on behalf of its memberswho were thus affected, filed a single application in respect of all theworkmen in the Labour Tribunal, Negombo (holden at Chilaw) againstthe respondent. The Assistant Secretary of the Labour Tribunal thenaddressed the letter P2, the contents of which have been set out inthe earlier part of the judgment to trie appellant Union. The appellantthen filed separate applications on behalf of each individual workmanon 7.2.94. Counsel contended that having regard to the facts set outabove, the separate individual applications date 7,2.94 were notreferable to the original single application dated 13.1.94 made to theLabour Tribunal for the purpose of computing the prescriptive period.
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In support of this proposition, Counsel for the respondent madethe following submissions:-
The original consolidated application dated 13.1.94 was not avalid application and could not be construed as an applicationproperly made in respect of the several workmen.
In terms of the Industrial Disputes Act and the Industrial DisputesRegulations, an application can be made by a workman or atrade union of a workman on his behalf.
It is not permissible under the provisions of the IndustrialDisputes Act for several workmen to file a joint application or atrade union to file a single application in respect of more than one
workman.
Counsel laid much emphasis on the fact that the AssistantSecretary addressed a letter to the Appellant Union (P2)informing that the application was not in the prescribed form.
An application to a Labour Tribunal has to be made substantiallyin terms of Form D as set out in Regulation 15 of the IndustrialDisputes Regulations. The format of Form D support theproposition that an application cannot be made by or in respectof more than one workman, and
That a purported invalid application cannot be converted into avalid application.
Having regard to the matters set out above, Counsel contendedstrongly that the original single application (P1) though it wasfiled within the time prescribed by law, was an invalid applicationwhile the separate applications filed on 7.2.94 were in accordancewith the form prescribed by law, but had been made out oftime. Counsel submitted that there was no nexus between the originalapplication and the subsequent set of applications, but he concededthat in the case of both applications, the parties to the dispute
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and the nature of the dispute were identical. Counsel thereforecontended that the separate applications filed on 7.2.94 filedone day after the six months’ period had lapsed were time-barred. The Labour Tribunal could not have therefore entertainedthem in view of the provisions of section 31(B) (7) of the IndustrialDisputes Act.
The vital questions therefore which emerge for determination in thepresent Appeal are as follows:-
Was the application made by the appellant to the Labour Tribunaldated 13.1.94 a valid application?
Are the separate individual applications made by the appellant tothe Labour Tribunal dated 7.2.94 referable to the originalapplication dated 13.1.94 for the purpose of computing theprescriptive period?
Section 31(B) of the Industrial Disputes Act sets out in limbs (a) – (d)the matters in respect of which a Labour Tribunal has jurisdiction.Under this section, a direct application for relief or redress could bemade to a Labour Tribunal by a workman or a trade union on hisbehalf. Further section 31(A) (2) provides for regulations to be madeprescribing the manner in which applications under section 31(B)may be made to the Labour Tribunal. In terms of Regulation 15 of theIndustrial Disputes Regulations made thereunder every applicationunder section 31(B) shall be substantially in Form D set out in the 1stschedule and shall be sent to the secretary in duplicate.
On an examination of Form D, it is quite clear that an applicationwill be in order if it contains the following particulars:-
Names and addresses of the parties,
Facts and matters in dispute, and
the relief claimed.
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It is common ground in the present case that the parties to bothapplications dated 13.1.94 and 7.2.94, the matters in dispute and therelief claimed were identical. The main ground upon which Counselfor the respondent objected to the reception of the originalapplication was on the basis that it was a joint application madeby the appellant Union on behalf of several workmen which wascontrary to the accepted practice that an application to a LabourTribunal can only be made in respect of an individual workman – apractice which has been observed over the years. Counsel alsourged that the format of Form D supported this proposition in that thesaid Form made reference to "applicant" and "employer” in thesingular.
I regret that I am unable to agree with this view, particularly havingregard to the provisions of section 2(mm) of the InterpretationOrdinance (Cap. 12) which provides that in every written law, unlessthere be something repugnant in the subject or context, "words in thesingular number shall include the plural and vice versa."
It is also significant that there is no express provision contained inthe Industrial Disputes Act or in the regulations made thereunderwhich debars the Labour Tribunal from entertaining an applicationmade by more than one workman if such application is otherwise inconformity with section 31(B) and Regulation 15 of the IndustrialDisputes Regulations 1958.
I therefore affirm the decision of the Learned President of theLabour Tribunal who rightly dismissed the preliminary objectionraised by the respondent and held that the original application madeto the Labour Tribunal dated 13.1.94 by the Appellant Union was indue form and in accord within the provisions of section 31(B) of theIndustrial Disputes Act.
Having regard to my findings set out above, the second matter fordetermination whether the separate individual applications made bythe appellant on 7.2.94 are referable to the original application wouldnot therefore arise.
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I accordingly set aside the Order of the High Court dated 19.2.96and direct that this matter be remitted to the Labour Tribunal foradjudication on its merits.
Before I part with this judgment however, I have to make the firmobservation that the salutary practice adopted in the Labour Tribunalto entertain separate applications for relief in respect of eachworkman, should not be deviated from, except in the mostexceptional circumstances.
The Appeal is allowed without costs.
P. S. DE SILVA, C.J. -1 agree.RAMANATHAN, J. – I agree.
Appeal allowed.