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Point of View by Neil Dias

The interpretation of statutes is a craft as much as a science and the judges, as craftsmen, select and apply the appropriate rules as the tools of their trade. They are not legislators, but finishers, refiners and polishers of legislation which comes to them in a state requiring varying degrees of further processing. - Per Donaldson J. Corocraft Ltd. v. Pan - American Airways Inc. (1969 1 QB 616 at 638.)

The working class is on the threshold of a new era

The Industrial Disputes Act No. 43 of 1950 was brought into operation on 1st September 1951. Act No. 62 of 1957 was introduced into the Act in order to set up Labour Tribunals. The period and the context in which this latter legislation came into being may give a useful insight into its aims and objectives and help in its historical interpretation. In the country's recent political history, 1956 marked a period when the working class wielded political power and influence. This was made use of to put in place suitable mechanisms that sought to ensure certain identified safeguards for the working class.

Not surprisingly T. B. Ilangaratna, worker elevated to politician, as Labour Minister introduced the amendment in parliament setting up Labour Tribunals. It was a culmination of worker agitation principally sponsored by the left parties. Another worker D. G. William rose up to the position of a Senator and with much acceptance continued his agitation on behalf of workers' rights in that august assembly. The government of the day was emboldened to declare May Day a public and mercantile holiday. S. W. R. D. Bandaranaike the Prime Minister of the day began his convocation address at the University of Peradeniya declaring "I find I am enveloped temporarily in a robe of bright red; whether it is a sign of things to come, I do not know."

Indeed the general atmosphere in the country seemed to make it appear that the country was moving politically and socially in the direction the Prime Minister thought it was. Incidentally the changes associated with the year 1956 have been interpreted in other ways too. K. M. de Silva in 1981 chose to describe it as a "linguistic nationalism" while Michael Roberts called it by the more inclusive phrase "Cultural nationalism."

Labour Tribunals were designed and constituted out of a desire on the part of the working class to evolve some machinery that would understand with sympathy and favourably redress their individual and peculiar disabilities and just grievances at the point of termination of their services. What they desired was some mechanism that would be a departure from the then existing court structure based on equal opportunity and equal treatment before the law. Equality before the law sounded very fine and fair in theory and among some academics in their lectures.

But workers after a long period of toil under employers found themselves in a helpless condition at the point of termination of their services. They were no longer the equals of the employer at this juncture. It did not appear unfair to seek legislative and judicial notice of this stark reality. Moreover legislation that sought to protect the working class was not novel in this country as with legislation that sought to protect the minority from the tyranny of the majority.

Equality before the law

Concepts of equality before the law appeared to be staring at the working class menacingly in this predicament of theirs. They also found the court structure and its procedures too technical, time consuming and more than anything else weighed heavily in favour of the employers. They thought of the courts as being beyond their reach monetarily and even unfriendly and unsympathetic at times. The employers were able, at the point of employment, to impose terms, conditions and contracts of employment that were disadvantageous and grossly unfair to workmen.

These came to be enforced by courts as contracts between equals. This the workers found to be unrealistic, unfair and detrimental to them. The colonial legacy of the practice in courts that tended to foist sameness of treatment upon those that were in fact unequal was found to be unfair and arguments began to be built up to change them in the sphere of labour legislation.

In particular the equality of treatment granted in courts of law to employers and workers at the point of the latter's termination was found to be unrealistic. The adversarial system practised in courts at the end of which the winner takes all was unbearably oppressive and disadvantageous to workmen who had lost their employment after a long period of service sans any safety nets to protect them in that final predicament. What the working class demanded at the point of termination of their employment were not determinations of their legal rights sans any enforcement but some kind of relief and redress based not on principles of equality but on principles of fairness and equity.

In short the working class was seeking to establish a protective net for itself and looking for accommodation in a new social order based on equity and fairness devoid of exploitation by the economically influential and powerful. On the part of the government of the day the new legislation was really an attempt to take (if one were to borrow a concept developed in another country and in another context) the suffering of the working class seriously. What is perhaps unique about the establishment of Labour Tribunals was the fact that for the first time an institution was created empowering it to reinstate dismissed workmen. This was to be done disregarding any existing contractual terms to the contrary. The setting up of Labour Tribunals certainly was not an exercise whereby the legislature took away some functions from the Courts and vested them in another body.

New provision under section 31B

Labour Tribunals were constituted by the government that was swept into power in 1956 with a view to redress some of the shortcomings in the field of labour legislation enumerated above. They were principally not meant to be a part of the judicial structure that existed. The officers entrusted with the work of implementing the amended provisions of the Act under Part IV A were assigned tasks that went way beyond those entrusted to judicial officers. There were to be no time bars and other door closing devises preventing access to these Tribunals.

Neither was there to be special forms like petitions and affidavits or certifications from lawyers in applying for relief by displaced workmen. The inquiries themselves were to be free of rigid procedural and evidential formalities. The neutrality of courts under a highly adversarial set up was to be replaced with a system where the Tribunals were to be empowered to devise and lay down their own procedures and evidential rules in order to investigate the circumstances of worker termination and the grant of relief in individual instances in conformity with rules just and equitable.

The new provision under section 31B attempted to replace the state intervention that existed hitherto in regard to industrial disputes with the power given to individual workmen to either by themselves or through their unions seek equitable relief by way of reinstatement at the point of termination of their services. It is significant that no timeframes were put down in the amended Act within which applications for relief and redress were to be made to these Tribunals. This was no oversight but a deliberate legislative provision. This is made very clear when it is found that timeframes were imposed in case of appeals against orders of these Tribunals. These appeals also were confined to questions of law. Section 31A(1) laid down that the Tribunals were to be constituted "for the purposes of the Act".

The purposes of the Act had earlier been laid down by the legislature in the preamble to the Act as intended to "provide for the prevention, investigation and settlement of industrial disputes and for matters connected therewith or incidental thereto". Part IV A was intended to accommodate and find relief and redress in cases of individual workmen either on their own or through their unions at the point of termination of their services by whatever means. Only dismissed workmen and no others were afforded a gateway to these Tribunals. And they need not either have or plead a cause of action to gain access.

Hence Part IV A was to be an extension and an improvement on the provisions of the original Act. Interestingly during the course of the arguments on behalf of the employers in the case of Walker & Sons vs. F. C. W. Fry it was contended that the preamble to the original Act did not apply to the provisions of the amendment that brought about Labour Tribunals.

Justice Tambiah who wrote the dissenting judgment in that case with Justice Sri Skanda Rajah agreeing, very convincingly demonstrated how the preamble to an Act cannot be separated from an amending Act and laid down that "I am of the view that the preamble governs as much of the provisions of the original act as the provisions contained in the amending Act of 1957 which brought into existence the Industrial Tribunals and is a guide to enable this court to find out the objects and purposes for which the amending Act was enacted".

The amended Act can be regarded as affirmative action aimed at redressing the sufferings of the working class under years of colonial and capitalist exploitation. The legislation was clearly aimed at achieving two principle objectives dear to the heart of every workman of whatever rank. Firstly there was to be no justifiable contracts of hire and fire either expressly or even by implication. Secondly workers were no longer going to be left in a helpless condition at the point of termination of their services.

Class and other interests very often govern the introduction of legislation and their interpretations. All over the world instances could be found where the courts and other interpreting authorities have set themselves up as super legislature applying judicial rhetoric and reading their own personal views into and decoding legislation to cater to and protect and uphold the interests of groups that they represent. In the field of constitutional interpretation it is said that no one can read John Hart Ely and miss his anger with those who merely read their own views into the constitution.

It is noteworthy in this context to note the anxiety of the framers and the supporters of the new South African constitution some of whom entertained fears that the apartheid era judges were unsuited to interpret the new provisions which changed South Africa from a parliamentary to a constitutional supremacy. Justice Sharvananda in a judgment that reflects the true spirit of the labour legislation under discussion has observed that: "the yardstick of justice and equity itself changes with changes in social, political and economic outlook and with changes in the conditions of individual and national life".

Jeremy Sarkin, Associate Professor of Law, University of the Western Cape, dealing with constitutional interpretation has this to say on the importance of having democracy and human rights friendly judges if constitutional legislation is to be really meaningful "Constitutional interpretation differs fundamentally from the interpretation of statutes and gives the court the opportunity to shape the society in which they are located. Thus the judicialization of politics occur with the role of the courts expanded far beyond the domain traditionally perceived as theirs, at the expense of the other arms of government.

Constitutional court

In this context, the question of who is appointed to a constitutional court is clearly critical, since individual judges play a large part in determining the decisions that will emanate from the court. As David Beatty suggests.

'For those whose ambition is to entrench human rights in a constitutional document as powerfully as one possibly can, it is the method by which judges are appointed to the court, much more than the language which is used to describe the constitutional guarantees, which should be the primary focus of their attention.' There are at least two reasons for this view. One has to do with the impact of individual judges on the verdicts arrived at by the court. The other is that the first appointees to the court will set a trend for later appointees to follow. The background of the judges will determine the degree to which the court is activist, pushing through a programme of socioeconomic change, and the extent to which it is restrained, leaving political issues to the legislative process of the democratic state."

One of the early cases under the Act unfolds the story of a union representative, an Advocate five years in practice at the time, being fined five hundred rupees with a default sentence of six months rigorous imprisonment by the Supreme Court for contempt under section 40A(1) of the Industrial Disputes Act. The contempt constituted the withdrawing from the proceedings before the Industrial Tribunal on 28th November 1959 after reading a communication from a trade union in which it was stated that the conduct of the Industrial Court in demanding that the union representing the workers to the dispute should influence another union to lift a boycott imposed against the employer by that other union as a precondition for granting a date for further inquiry was indicative of the fact that the Tribunal was conducting its proceedings "contrary to the letter and spirit of the Industrial Disputes Act."

In what appears to be not a very strong or consistent argument in that assembly the Privy Council in appeal was not prepared to concede counsel's argument that "it could not be contempt for counsel to allege partiality of a court as this would unduly restrict counsel's arguments."

Intention of our legislature

In a landmark judgment the Judicial Committee of the Privy Council was later to disagree with our Supreme Court on more fundamental issues about the legal status of the newly constituted Labour Tribunals and hold that "the Act making provision for them did not say that they were to perform the functions of a court in giving effect to the legal rights of workmen in connection with their employment."

The judgment in a very bold and realistic assessment of the intention of our legislature laid down that Arbitrators, Industrial Courts and Labour Tribunals under the Act have been conferred by the legislature with "an unfettered discretion to do what they think is right and fair." The same judgment also interpreted "gratuity due" under the Act to mean gratuity that ought, in the opinion of the particular Tribunal dealing with the case of the particular workman, to be paid by the particular employer to the particular workman, the tribunal being guided solely by its own view of what is just and equitable in the particular circumstances of the case under inquiry.

Earlier our Supreme Court while lamenting about the failure of the dismissed workman to assist the Supreme Court in appeal on the already complicated legal question about gratuity due verbally adopted and upheld the argument of Queens Counsel appearing for the employer and laid down that "justice and equity can themselves be measured not according to the urgings of a kind heart but only within the framework of the law" and ruled that "gratuity due" under section 31B1(b) under Part IVA of the Act meant only gratuity "legally due." Justice Tambiah too was later to term this as a very "restrictive construction" and expressed His lordship's inability to agree with it."

It may perhaps be not inappropriate to very respectfully, and certainly gratefully, mention at this juncture that the Labour Tribunals have managed to survive assaults on their very existence solely due to the commendable commitment and the untiring efforts of the distinguished Presidents who have over the years, under very trying circumstances, adorned this seat of justice and equity. They appear to have, so far, successfully withstood all attempts to extend labour legislation beyond their words.

As the political power and influence of the working class faded away their gains in the legislative field too have gradually been withdrawn - regrettably without protest. The rule making power conferred on the Minister under sections 31(A)(2) and 39 of the Act were acted upon by the Minister in 1959 in framing Regulation 16 that sought to prescribe a time limit of three months from the date of dismissal to file applications before Labour Tribunals.

It is significant to note that no time limits were set down by the legislators for access to these Tribunals when they were set up under part IVA. Section 39(1)(h) of the Act laid down that "The Minister may make regulations in respect of all matters necessary for carrying out the provisions of this Act or giving effect to the principles thereof." Dr. Colvin R. de Silva on behalf of Ram Banda, a worker dismissed from the River Valleys Development Board, argued in the words of Justice Weeramantry "very exhaustively and extending over several days" that this regulation in effect took away from the workman a right conferred on him by the legislature and that to that extent nullified and repealed the principle enactment.

Justice Weeramantry held with Dr. de Silva and ruled that Regulation 16 is ultra vires the rule making powers conferred on the Minister by sections 31A(2), 39(1)(a), 39(1)(b), 39(1)(ff) and 39(1)(h) of the Act in that it attempted not to narrow but to completely shut down the gateway opened to dismissed workmen under the Act. On the question of the imposition of a time bar not contemplated in the legislation granting worker access to Labour Tribunals His Lordship laid down for all time that "the imposition of a time bar upon the workers right of access" to a tribunal operates so as to strike at the foundation of the statutory benefits accruing to him from that portion of the Industrial Disputes Act relating to Labour Tribunals.

Special rights vanish

In other words, unlike the litigant barred by limitation from an ordinary court of law, he retains not even the empty shell of those special rights which the legislature has given him but sees them vanish away in their totality the moment the time bar springs into effect. Left with no access to the special tribunal created for him, he is destitute and is thrown back simply upon the common law contract as administered by the common law courts that self same subjection to the letter of his covenant which these legislative provisions were designed to negate and soften.

Justice Weeramantry's decision in the above case was however overruled by a Divisional Bench of three Judges of the Supreme Court in the case of River Valleys Development Board vs. Sheriff in which the majority of the three Judges held that the said regulation 16 was valid and was within the authority given to the Minister by paragraph (h) of section 39(1) of the Act.

The Court in this case decided to lay stress on the provision of section 39(1)(h) of the Act which spoke of the 'necessity of carrying out the provisions of the Act' but appeared to disregard the more fundamental provision in the same section which called for regulations to be framed for the purpose of 'giving effect to the principles thereof'. It is very respectfully submitted that it may be more appropriate for Courts to be concerned with facilitating the implementation of healthy policy guidelines laid down in legislation than with helping to carry out debatable provisions in them specially when they are subsequently brought in by way of amendments.

Samarawickrama J. in this case, while stating that His Lordship has the 'misfortune to disagree with the view take by my Lord the Chief Justice,' argues that regulation 16 is fundamentally opposed both to the provisions of the Act and the principles underlying them. His Lordship lays down that 'Regulation 16 appears to me neither to carry out the provisions of the Act nor to give effect to the principles of such provision of the Act and is therefore ultra vires and inoperative.'

The working class is on the threshold of a new era. They have arrived here after passing a period, in its recent history, when their representatives, often bartering worker rights for ministerial and other comforts, have sat back and watched and acquiesced in the withdrawal and the rolling back of the gains achieved through the sweat and often the blood and in fact the very lives of some of its members.

The dawn of the new era may very well see the replacement of much of the existing labour legislation with enforceable contracts enshrining the rules of hire and fire. Governments that lay stress on economies based on private ownership cannot ignore the importance of industrial peace. Industrial peace cannot be achieved by keeping the workers in a state of slavery. This alone will force them to revolt in an effort to emancipate themselves.

Excerpts of an article The writer is an Attorney-at-Law

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