After ciation proceedings the matter was referred for hearing in the Arbitration Tribunal and both both parties then filed written
submissions.
An oral hearing took place before the Arbitration Tribunal on 20th and 21st of November 1995 at which no witnesses were called and
the Union's General Secretary and Mr. Tuinasaqalau spoke to their written submissions.
On 27th February 1996 the Tribunal handed its Award.
Mr. Tuinasaqalau complains that the Tribunal did not at any stage prior to handing down its Award intimate that he was considering
making an Award for compensation for loss of income not connected to redundancy payments which was the context in which the Union
had raised the claim and on which basis all submissions had been made and accordingly there was no opportunity afforded the parties
to be heard on the non-redundancy context before that date.
The Authority then sought an interpretation of the Awath regard to the entitlement of compensation of those not inot in the casual
pool in 1988, 1989 and 1990; those who were in the casual pool for only part of those years; and those casual dockworkers in the
pool for those years who earned less than $500 stevedoring work per year. The Authority also sought clarification that any casual
dockworker joining the pool after the introduction of bulk importation of fertilizers in January 1991 was not covered under the Award,
and it requested a meeting of the parties with the Arbitration Tribunal.
The Union responded to the Authority's approach to the Tribunal and inter alia tried to resolve the situation by suggesting "that
the three year period of the Award cover 1991, 1992 and 1993 instead of 1988, 1989 and 1990".
That without any further hearing as requested the Arbitration Tribunal rendered its Interpretation on 22nd March 1996. The Tribunal
declined to change the years for which compensation was awarded to the period after the introduction of bulk fertilizers, varied
the Award of 27th February 1996 to the extent that not all casual dockworkers at Lautoka Port would be entitled to such payments,
but did not make any ruling as to whether any casual dockworker joining the pool after the introduction of bulk importation of fertilizers
in January 1991 was covered by the Award. He gave his reasons on page 227 of the Award thus:
"The Port Workers and Seafarers' Union Fiji (the "Union")uot;) in its response sought to have compensation paid for
the years 1991, 1992 and 1993. As regards the amount itself the Union considered that this had been determined after an exercise
conducted by both parties pursuant to a Board decision.
The Tribunal will not vary the period because thse that information was supplied by the Union itself.
As for the clarification, the Authority has raas raised relevant issues. In relation to the first point, casual dockworkers who were
not in the casual pool in 1988, 1989 and 1990 cannot claim payment. Casual dockworkers who were in the casual pool for only part
of the period 1988, 1989 and 1990 are entitled to payment on a pro rata basis. Finally, those casual dockworkers who were in the casual pool for the years 1988, 1989 and 1990 but who earned less than $500.00
per annum from stevedoring are excluded for the simple reason that they cannot be said to have suffered any appreciable loss of earnings."
Mr. Tuinasaqalau deposes that the Authority submitted to the Arbitration Tribunal that it is a public-owned enterprise and is not
in a position to become a trendsetter in matters of employment conditions, particularly when the financial implications of the decision
could seriously affect the Government as an employer.
p class=MsoNormal stal style="margin-top: 1; margin-bottom: 1"> He then continues that the move to bulk imtion of fertilizers was the decision of the importing compacompany, South Pacific Fertilizer
Ltd. The equipment for bulk loading of such fertilizer belongs to that company, and that such bulk importation was not introduced
until 1991 so that there was no loss of work or income to Lautoka casual dockworkers owing to the bulk importation of fertilizer
for the years 1988, 1989 and 1990.
He says that all dockworkers at Lautoka Port are employed on a casual basis but that some who lived in the vicinity of Lautoka City
tended to be available for work on a more regular basis and tended to regard stevedoring as their main source of income while others
who lived in villages further away would only work as casual dockworkers when the fertilizer ships arrived on average about ten times
a year, when they could work over three to four days per ship, normally on seven-hour shifts at the end of which they would be paid
off and re-engaged for the next ship for which they were rostered. No Lautoka casual dockworkers have been dismissed by way of redundancy.
Finally Mr. Tuinasaqalau states that from his experience in industrial relations, casual workers are not generally considered eligible
for redundancy payments even if they should be dismissed by way of redundancy.
Even there is a rightedundancy payments, such right is conferred by statute or agreement and is usually subject ject to qualifications
criteria such as a period of continuous employment, and such payment is usually calculated on the basis of one or two weeks wages
multiplied by the number of years worked and that an award of the full loss of income for three years is in effect treating casual
workers as if they had been wrongfully dismissed from fixed term contracts which still had three years to run, with no account being
taken of such factors as duty to mitigate by finding alternative employment.
In his submission on behalf of the Authority Mr. Sweetman sayt this application for leave to apply for Judicial Review riew raises,
inter alia, fundamental questions of the scope of the jurisdiction of the Arbitration Tribunal under the Trade Disputes Act in the context of the entitlement in law of casual workers to be paid compensation whether by way of redundancy or otherwise for
loss of work.
He says also at stake, in this case alone, is approxly one-third to one-half of a million dollars of what, in e in essence, is public
money.
Neither party was represented by counsel in pdings leading to the Award and Interpretation and the ArbitArbitration Tribunal did not
have the assistance of legal argument.
As therno right of appeal from the decision of the Arbitration Tribunal and the Authority's soliciolicitors have not been able to
find any decisions on this aspect of the Tribunal's jurisdiction and on the matters in issue in these proceedings, it is submitted
that only leave to apply for Judicial Review will allow these important issues to be given substantive hearing and the necessary
authoritative decision.
It is submitted that this Application raises serious issues, with substantial implications for the economy of Fiji, which require
authoritative determination by the Courts.
The Union first submits that Awards by the Arbitration Tribunal are revie but only in exceptional cnal cases because it is said that
in the Memorandum of Agreement signed by the parties on 17th August 1995 Clause 6 reads:
"That the Union and the Employer agree to abide by the decision of the Arbitration Tribunal."
It is then said that it is in the national interest where there is an industrial disbetween the Union and PortsPorts Authority of
Fiji involving such an essential service as work in ports that a quick final and amicable solution is required. It is said that unless
an exceptional case is made for judicial intervention to resolve such disputes the Courts should not intervene. I do not agree.
Many years ago Atkin L.J., as he then was, in R. v. Electricity Commissioners,arte London Electricity Joiy Joint Committee Co. (1920) Ltd. [1924] 1 KB 171, 205 said:
p class=MsoNormal stal style="margin-left: 36.0pt; margin-right: 72.0pt; margin-top: 1; margin-bottom: 1"> "Wherever any body having legal authority to determitermine questions affecting the rights of subjects and having the duty to
act judicially, acts in excess of their legal authority they are subject to the controlling jurisdiction of the Kings Bench Division
exercised in these writs ......"
The Appliagrees that it is desirable that there should be a quick final and amicable solution to anyo any trade dispute, but says
that where the decision-making process raises issues capable of attracting the Judicial Review jurisdiction, the jurisdiction of
the Court must not be ousted. The Trade Disputes Act does not expressly state that the Arbitration Tribunal's Award shall be final and there is no privative clause. Even if the Act did
so provide there can be no doubt the Court's power to quash either on the ground of error of law on the face of the record or excess
of jurisdiction is unaffected.
If a Tribunal goes beyond its jurisdiction or fto follow the rules of natural justice or acts unreasonablynably in the Wednesbury
sense, any decision it makes in law is simply not a decision.
