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State v Permanent Secretary of the Ministry of Employment & Industrial Relations, Ex parte Fiji Bank Employees Union [1994] FJHC 47; Hbj0009j.1993s (12 May 1994)

IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. 9 OF 1993

IN THE MATTER of an application by FIJI BANK EMPLOYEES UNION
a duly registered Trade Union under the Trade Unions Act, Cap. 96 of Gordon Street, Suva

AND

IN THE MATTER of the Trade Disputes Act Cap. 97 and the decision of the PERMANENT SECRETARY OF THE MINISTRY OF EMPLOYMENT AND INDUSTRIAL RELATIONS dated 18th March 1993 purporting to reject a report of trade dispute under the Trade Dispute Act.

-----------------------------------

STATE

v.

PERMANENT SECRETARY OF THE MINISTRY OF EMPLOYMENT
AND INDUSTRIAL RELATIONS

EX-PARTE - FIJI BANK EMPLOYEES UNION

S. Sharma: For the Applicant
G.E. Leung: For the Respondent

Dates of Hearing: 9th June 1993, 18th February and
2nd March 1994
Date of Judgment: 12th May 1994

JUDGMENT

In a tropical climate air conditioning if not a necessity of life certainly makes it more comfortable and doubtless conducive to better working conditions and hopefully more efficient work.

Unfortunately like all other machinery air conditioning equipment can break down and when it does it can cause not only personal discomfort but, as in this case, problems in industrial relations.

The Applicant, Fiji Bank Employees Union is a duly registered Trade Union under the Trade Unions' Act, Cap. 96 and represents the employees of all commercial and other banks operating throughout Fiji.

As at 31st December 1992 the Union had a membership throughout Fiji of over 2,200. Of this about 137 members were employed by the ANZ Banking Group Limited at its premises in ANZ House, Victoria Parade, Suva.

The Union collectively represents the interests of its membership on all matters including collective bargaining and allied matters relating to terms and conditions of employment of its members by the banks. The Union has concluded separate collective agreements with various banks operating in Fiji including two with the ANZ Banking Group Limited dated 14th December 1992, one relating to salaried staff and Accountants and the other relating to service staff such as messengers, agency escorts, watchmen, cleaners, drivers and general handymen and mechanics. Both collective agreements are still in force.

The following history is taken from the affidavits filed by the parties:

For sometime prior to February 1993 the Union had been raising the concerns of its members with the ANZ Banking Group Limited (hereinafter called "the Bank") on the issue of a safe and healthy work environment. These concerns related to air conditioning and allegedly unhygienic conditions in the Bank's premises at Victoria Parade, Suva. There was also a related issue of pipe-smoking by certain members of the staff of the bank. The latter issue was quickly resolved by the Bank which, in response to a Union complaint banned smoking by all ANZ staff in all branches. Unfortunately the problem of the air conditioning was not so quickly rectified.

The Bank engaged an air conditioning company and the Public Works Department to effect the necessary repairs to the system but not to the satisfaction of the Union members employed in the ANZ House.

On the 1st of February 1993 about 137 members of the Union walked off their jobs for four hours in protest about their working conditions. The Union described their actions as a "walk-out"; the Bank as "a withdrawal of labour" but the Respondent as "a strike".

The action of the employees concerned was reported in "The Fiji Times" and the "Daily Post" newspapers of the 2nd of February 1993.

It is alleged that a Mr. Ponting, whom I presume to be a managerial member of the staff of the Bank, told the Daily Post newspaper that workers who went out on the "four hour strike would have their pay docked". This upset the Union which in a letter of the 2nd of February 1993 exhibited to an affidavit of Diwan Shankar the National Secretary of the Applicant sworn on the 7th of April 1993 stated that it viewed Mr. Pointing's remarks very seriously. The letter which was addressed to the Chief Manager of the Bank stated among other things that in the Union's view the action of the employees was not a strike and that the Union would not tolerate any deduction of wages or salaries for members who had walked off their jobs. The letter said that the walk-off had been caused by the unhygienic working conditions at the Bank's premises and that the employees concerned had resumed work after a number of fans was brought in as a temporary measure.

The Bank responded to the Union's letter on the 8th of February 1993. Its General Manager for Fiji wrote to the Applicant stating the Bank's intention to deduct three hours salary/wages from employees who withdrew their labour on 1st February 1993, the deduction to be made in their pay due on the 18th of February 1993.

The letter then concluded with this paragraph:

"This action has not been taken lightly and only after seeking legal advice which is as follows:-

The actions of the concerned employees are prima facie deemed to be a 'strike' both under the Trade Disputes Act (Amendment) Decree 1992 and the Trade Unions Act (Amendment) Decree 1991. As instructed certain employees partially discontinued their employment and or reduced their normal performance of it and or breached their contracts of service."

The Union replied in another letter to the Bank describing the Bank's action as "purely vindictive" and reiterated that its members would continue to withdraw their labour from any unhygienic work conditions in the future.

The Bank was not deterred. It proceeded to effect a pay deduction of the Union members on the 18th of February 1993 despite the Union's protestations.

On the 24th of February 1993 the Applicant wrote a letter to the Permanent Secretary of the Ministry of Labour and Industrial Relations ("the Respondent") reporting the existence of a Trade Dispute under Section 3 of the Trade Disputes Act Cap. 97. The letter, a copy of which is annexed to Mr. Diwan Shankar's affidavit, referred to the lack of fresh air and continued failure of the air conditioning system in ANZ House and complained at what it called unfair and unjust deduction from their wages and salaries of its employees who had left their jobs on the 1st of February and asked the Respondent to accept the dispute under the Act.

On the 1st of March 1993 the Respondent replied to the Union's letter stating that before he processed the report the Union requested he required information as to:-

(a) the period during which Union members withdrew their labour from the Bank and the total number of workers involved; and

(b) a statement of the steps in the grievance procedure and the Collective Agreement which had been taken by the parties in an effort to obtain settlement.

The two Collective Agreements contain a detailed grievance procedure which is to be followed in the event of any dispute or grievance arising between Union members employed by the Bank and the Bank. The obvious purpose of the grievance procedure is to allow any heated feelings which may develop between members and the Bank to cool.

In this case the Union did not follow the normal grievance procedure. In a letter of the 3rd of March 1993 in reply to that of the Respondent it stated that the reason why it claimed normal grievance procedure did not apply in this case was that the Bank had ignored the Union's request not to deduct any wages from its members after they stopped work.

On the 18th of March 1993 the Respondent wrote to the Applicant referring to the Union's report of a trade dispute but said that he declined to accept the report because he considered the action of the employees in ceasing work was a 'strike' within the meaning of the Trade Disputes Act (Amendment) Decree 1992 which was illegal under Regulation 10(A) of the Trade Unions Regulations (Amendment) Regulations 1991 on the ground that before ceasing work there had not been any secret ballot as required by Regulation 10(A).

The Applicant now seeks judicial review of the Respondent's refusal to accept the report.

On the 3rd of June 1993 I gave the Applicant leave to apply for judicial review and the Court then received an affidavit in response by the Respondent and submissions by counsel for the parties.

I now proceed to consider this material.

The question to be decided by the Court is whether the Respondent acted lawfully in refusing to accept the Applicant's report of a trade dispute. Under Section 3 of the Trade Disputes Act (Amendment) Decree 1992 the definition of trade dispute previously appearing in Section 2 of the Trade Disputes Act Cap. 97 was amended to mean "any dispute or difference between any employer and a trade union recognised under the Trade Unions (Recognition) Act or between a union of employers connected with the employment or with the terms of employment, or with the conditions of labour, of any employee."

Under Section 4 of the amending decree Section 3 of the principal Act was repealed and a new section substituted. Section 4 of the Trade Disputes Act Cap. 97 states the role of the Permanent Secretary which is to endeavour to promote a settlement of any Trade Dispute. The section begins by saying that the Permanent Secretary shall consider any Trade Dispute of which he has taken cognizance and then may (my emphasis) take any one or more of seven steps which he considers expedient for promoting a settlement of the dispute. Three of these (c), (d) and (e) require him or a person he appoints to assume the role of a mediator and/or conciliator in an attempt to resolve the matter in dispute. Sub-paragraph (a) is particularly relevant to the instant case because it says that the Permanent Secretary may:

"Inform the parties that he accepts or rejects the report of the trade dispute, having regard to the sufficiency or otherwise of the particulars set out in the report, to the nature of the report, or to the endeavours made by any of the parties to achieve a settlement of the dispute, or having regard to any other matter which he considers to be relevant in the circumstances:

Provided that a report which has been rejected by the Permanent Secretary shall be deemed not to have been made under the provisions of this Act."

It is thus clear from sub-paragraph (a) that the Permanent Secretary is given a fairly wide discretion not only as to the steps he can take in an attempt to settle a dispute but also whether he should accept or reject the report of any dispute. In this case he did not accept the report and it is submitted by the Applicant in so doing exercised his discretion wrongly.

It is submitted by the Applicant that the Permanent Secretary had no jurisdiction to refuse to accept the report from the Union because the cessation of employment of three hours was over and that what was referred to him was not the stoppage but the deduction of wages.

It is further submitted that the Respondent erred in law in failing to ask the right question which was whether the deduction of wages following the stoppage was a matter which was justiciable as a trade dispute and referable to a disputes committee. It is argued by the Applicant that under Section 10(A) of the Trade Disputes Act which was added by Section 8 of the Trade Disputes Act (Amendment) Decree 1992 it is when it appears to the Minister that there is an actual or declared strike arising out of a trade dispute and there has not been a properly conducted secret ballot of union members affected that the Minister may declare that strike unlawful.

The Applicant submits that in the instant case there was no such temporal element in existence because it was not a strike but a deduction of wages that was referred. Therefore it is submitted the Respondent's action in rejecting the report was perverse.

Here it is necessary to consider the amended definition of "strike" made by Section 2 of the Trade Disputes Act (Amendment) Decree 1992. Under the previous Section 2 in the Trade Disputes Act "strike" was defined as (so far as relevant) "the cessation of work by a body of employees acting in combination or a concerted refusal of any number of employees to continue to work for an employer, done as a means of compelling their employer to accept or not to accept terms or conditions of employment."

It will be seen that the former definition of strike was far more general in its terms than the amended definition inserted by the 1992 Decree. The amended definition of strike is the act of any number of workers who are or have been in employment of the same employer:

(a) in discontinuing that employment whether wholly or partially, or in reducing the normal performance of it; or

(b) in breaching their contracts of service; or

(c) in refusing or failing after such discontinuance to resume or return to their employment; or

(d) in refusing or failing to accept engagement for any work in which they are usually employed; or

(e) in reducing their normal output or their normal rate of work.

The Respondent took the view that the action of the 137 came within the amended definition of strike and it would appear arguable that their action was caught by at least sub-paragraphs (a), (d) and (e) and possibly (b).

Under the relevant legislation the pre-condition of any strike in Fiji is that there must first be a secret ballot and that at least twenty-one days before the date on which the ballot is to be held a Union must give the Industrial Registrar notice stating the date, time and place where the secret ballot is to take place. It is unfortunate that the legislation does not state in one Act that a secret ballot must be held before any strike can be considered legal. Instead that position is reached by a rather round-about route.

The Schedule to the Trade Unions Act Cap. 96 lists the matters for which provision must be made in the rules of every Trade Union. No. 13 of these rules so far as relevant here deals with the taking of decision by voting members of the Trade Union by secret ballot on the following matters:

(a) .......

(b) .......

(c) all matters relating to strikes and lockouts.

Regulation 10 of the Trade Unions Regulations (Amendment) 1991 provides:

"(a) at least twenty-one days before the nominated date to hold the ballot, give or post to the Registrar with the notice of intention and the notice shall state, amongst other things, the date, time and place where and when the ballot is to take place;

(b) any strike action taken by any union member before the result of the ballot has been declared and the requirements of this Regulations (sic) are complied with shall be deemed unlawful and an offence under this part punishable by a fine not exceeding one thousand dollars or a term of imprisonment not exceeding twelve months or to both such fine and imprisonment."

It is common ground that there was no secret ballot of members of the Union employed at the Bank before they stopped work. I think it is also reasonable to conclude in their favour that they stopped work from a sense of frustration from the failure of the Bank as they saw it, to do enough to alleviate the uncomfortable conditions in which they were obliged to work.

The Respondent accepts that the trade dispute which has precipitated the current proceedings related to the action of the ANZ Bank in deducting the pay of the Bank workers who had gone on a three-hour lightning strike and not the strike itself. But the Respondent submits that the illegal strike (and I here find with some reluctance it was illegal) cannot be divorced from the consideration of all the events. It is submitted that the stoppage of work and the deduction of pay are inextricably linked, and therefore consideration by the Respondent of the illegal strike was relevant in the circumstances. In my judgment it was and that the Court would be closing its eyes to the reality of the events with which these proceedings are concerned if it were to hold otherwise. I am invited by the Applicant to consider the policy of the legislation and cases such as The King v. Mahony, Ex-parte: Johnson [1931] HCA 36; (1931) 46 C.L.R. 131; Ansett Transport Industries (Operations) Pty Ltd. v. The Commonwealth of Australia and Others [1977] HCA 71; (1977-78) 139 C.L.R. 54 and my own decision in Fiji Public Service Association v. Board of Fire Commissioners of Suva, Action No. 145 of 1988 judgment 28th August 1991 are cited. These cases concerned the right of authorities directly entrusted with statutory discretions usually to be entitled and often obliged to take into account considerations of public policy and as I said in Fiji Public Service Association v. Board of Fire Commissioners of Suva in some contexts the policy of a Minister or of the Government as a whole may be the relevant factor in weighing those considerations. In my judgment whilst on one view of his actions the Respondent may have appeared to have acted with unnecessary legalism in rejecting the report, nevertheless I consider that he was entitled to take into account the apparent policy of the Government in amending Section 2 of the Trade Disputes Act so as to greatly widen the definition of 'strike'.

Whereas the action of the 137 in stopping work for a few hours may well not have been caught by the earlier definition of the word, in my opinion the Respondent was entitled to hold that their action was covered by the amended definition. Once he concluded that the stoppage of work was a strike which was illegal, as I am of the opinion it was open to him to do so, then he was entitled to hold in my judgment that it would be wrong for him to accept the report of the dispute because by so doing he would be legitimising the action of the employees.

I am therefore not prepared to hold that the Respondent mis-directed himself in rejecting the report.

One of the remedies sought by the Applicant is mandamus. As Professor S.A. de Smith states at page 484 of the Third Edition of his Judicial Review of Administrative Action:

"The award of mandamus........ is fully compatible with the principle that it will not issue to order a body how to exercise its jurisdiction or discretion."

In my judgment the consideration by Respondent that an illegal strike had given rise to a pay deduction was relevant to the exercise of his powers under Section 4(1)(a) of the Trade Disputes Act and entitled him to reject the report of the dispute.

The application for judicial review accordingly fails but in the circumstances I decline to make any order for costs.

JOHN E. BYRNE
JUDGE

HBJ0009J.93S