INTER ORIENT LOGISTICE (PVT) LTD v C M U AND OTHERS

INTER ORIENT LOGISTICE (PVT.) LTD
v. C.M.U. AND OTHERS

COURT OF APPEAL
SRISKANDARAJAH,J.
CA 867/2007
ARBITRATION A/3193

Writ of Certiorari - Arbitration - Industrial Disputes Act - 14 of 1957 - Section 4(1), Section 16, Reference by Minister - Arbitrator obliged to consider jurisdictional issue first? - Power of minister - Pure and simple administrative?

The Minister of Labour under Section 4(1) of the Industrial Disputes Act referred a dispute - whether the non offer of employment to the 38 prime mover drivers who were employed by S.A.G.T. (Pvt.) Ltd., at the said Company through its contractor - petitioner - due to the non granting of permission for them to report for duty is justified or not.

The petitioner and the 2nd respondent raised a preliminary objection in relation to the validity of the reference - as the reference incorrectly assumes that the 38 drivers are employees of the 2nd respondent and that the petitioner is a contractor of the 2nd respondent (S. A. G. T. (Pvt.) Ltd.) through whom the lot respondent (CMU) employed the 38 drivers.

The arbitrator overruled the objections. It was contended by the petitioner that the arbitrator has enlarged the scope of a reference under the Industrial Disputes Act in seeking to interpret the reference as permitting to inquire into a disputed employer - employee relationship.

Held

(1) The Commissioner of Labour in setting out the matter in dispute in the statement that accompanied the reference under Section 4 (1)had full knowledge of the dispute and the parties to the dispute. The power of the Minister under Section 4 (1) to refer for arbitration is pure and simple administrative function. The Commissioner and the Minister use their discretion and make reference to arbitration in good faith.

(2) One of the industrial disputes which is defined under Act is a dispute or difference on employment or .non-employment. The reference should identify the parties in dispute, that is why in defining an industrial dispute the Act refers to a dispute or difference - between an employer and a workman or between employers and workmen.

(3) In the reference the Commissioner has identified the dispute between CMU (workman) of the one part and SAGT (Pvt.) Ltd and the Petitioner Company on the other part. The reference also gives the relationship or contract between the two employers.

(4) When parties referred to in the reference raise a fundamental issue it is the duty of the arbitrator to decide whether he has jurisdiction to hear the dispute - he has to first decide whether the parties to the dispute have a master and servant relationship.

    The arbitrator is obliged to consider the jurisdictional issue first before deciding the other issues - the arbitrator has not erred in deciding to determine the issues.

APPLICATION for a Writ of Certiorari.

Case referred to:-

(1) Colombo Apothecaries Ltd. v. Wijesinghe 70 NLR 481 at 491

(2) Aislaby Estates Ltd v. Weersekera- 77 NLR 241

(3) Mc Leod & Co. v. Sixth Industrial Tribual- AIR 1958 Col 273

Geoffrey Alagaratnam with M. Sithambaram for petitioner

L.N. Pradeep de Silva for lot respondent.

Maithri Wickremasinghe for 2nd respondent

Nirmalaln Wigneswaran SC for 3rd and 5th respondents.

November 3rd, 2009
SRISKANDARAJAH. J.

    The Minister of Labour the 3rd Respondent under Section 4(1) of the Industrial Dispute Act No. 14 of 1957 as amended has appointed the 4th Respondent as the arbitrator and referred the following dispute for arbitration.

The Ceylon Marcantile, Industrial & General Workers Union (CMU), of the one part and

1. South Asia Gateway Terminals (Pvt) Ltd.

    And

2. Inter Orient Logistics (Pvt) Ltd.

Of the other part

Statement of matter in dispute

    Whether the non offer of employment to the thirty eight (38) prime mover drivers whose names are referred to in the attached schedule and who were employed by the South Asia Gateway Terminal (Pvt

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