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Fiji Public Service Association v Tourism Fiji [2009] FJET 12; Misc02.2009 (23 February 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Misc. No 2 of 2009

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
Union

AND:

TOURISM FIJI
Employer

FPSA: Mr D Nair
Tourism Fiji: Mr C B Young

DECISION

This is an application initially commenced by Notice of Motion dated 27 January 2009 filed by the Fiji Public Service Association (the Union) seeking inter alia, an injunction to discontinue a lockout by Tourism Fiji (the Employer) pursuant to section 181 of the Employment Relations Promulgation 2007 (the Promulgation). An amended Notice of Motion dated 2 February 2009 was subsequently filed by the Union. It would appear that the amended Notice sought a further order rather than a different order from that sought in the original Notice.

In the amended Notice the Union sought :

"An Order for the transfer of Miscellaneous Dispute No 02 of 2009 to the Employment Relations Court for hearing and determination of the matter relating to an application by the applicant for an injunction for the discontinuance of the unlawful lockout executed by Tourism Fiji on or about 21 January 2009."

The Union's application before the Tribunal was for an Order that its application for an injunction under section 181 be transferred to the Employment Court pursuant to section 218 of the Promulgation.

Section 218 states:

"(1) A party to the proceedings may apply to the Tribunal to have the proceedings transferred to the Court for the hearing and determination of the matter.

(2) The Tribunal may order the transfer of the proceedings to the Court if the Tribunal is of the opinion that :-

(a) an important question of law is likely to arise; or

(b) the case is of such a nature and of such urgency that it is in the public interest that it be transferred to the Court

(3) - - -

(4) - - -

(5) - - - "

Having considered the submissions presented by the parties, the Tribunal has concluded that before the Tribunal could make an order under section 218 (2), it must have before it an application by one of the parties for the transfer of proceedings that have been commenced in accordance with the Promulgation. In other words "party to the proceedings" refers to proceedings that the Tribunal has jurisdiction to hear and determine and in the process thereof to make other orders such as that referred to in section 218 (2) of the Promulgation.

The issue then is whether the Tribunal has the jurisdiction to hear and determine an application for an injunction under section 181 of the Promulgation.

Section 181 of the Promulgation states:

"Where there is a strike or lockout :-

(a) a union, in the case of a lockout,
(b) - - -
(c) - - -

may apply to the Court for an injunction to discontinue the strike or lockout".

It should be noted that in section 4 of the Promulgation, Employment Court or Court is defined as meaning "the Employment Relations Court constituted as a division of the High Court of Fiji under section 219".

The Tribunal has no hesitation in concluding that the meaning of section 181 is that if the union wishes to apply for an injunction to discontinue a lockout (i.e. a prohibitory injunction) then such an application can only be made to the Court.

Therefore an application for an injunction under section 181 is beyond the jurisdiction of the Employment Tribunal. The Tribunal has no power to hear and determine such an application nor to make any order in respect of such an application.

Section 181 of the Promulgation expressly confer jurisdiction on the Court to hear and determine such applications. Section 211 does not offer any assistance to the Union's submission that the Tribunal may treat such an application as proceedings before it.

The Tribunal has concluded that section 235 (d) cannot be relied upon in an application to transfer a matter to the Employment Court when the Tribunal has no jurisdiction in the first place to hear and determine the substantive issue. Furthermore, section 234 is of no assistance to the Union in this application.

As a result the application for an order to transfer the injunction application cannot be entertained by the Tribunal. The application is dismissed. The appropriate course of action is for the Union to commence its application for an injunction under section 181 in the Employment Court.

The Employer is entitled to costs on a party party basis in accordance with the Magistrates Courts Rules. Costs are to be agreed by the parties and in the absence of such agreement liberty is granted to the parties to have the matter listed before the Tribunal.

DATED at Suva this 23rd day of February 2009.

EMPLOYMENT TRIBUNAL