J. K. Maharaj for the Applicant
S. otam he Respondspondent
JUDGMENT
Pursuant to leave granted by Pathik J on 14 May 1999 the Applicant moves for Judicial Review of an award of trmanent Arbitrator made
on e on 18 February 1999.
The award (7/1999) was but one of a series of awards arising out of decisions of the Suva City Council (SCC) to terminate the employment
of members of its workforce. Four otwardshe the Arbitrator ator involving similar or related subject matter and dated 24 November
1988, 18 February 1999, 14 March 1999 and 16 September 1999 were drawn to my attention.
At its meeting in November 1997 the SCC, finding itsn serious financial difficulties decided to reduce the numb number of its staff
by invoking clause 19(ii) of its collective agreement with the Applicant. It gax months notice of teof termination of employment
to eight of its staff who had by then reached the age of 50. Clause 19 is setin full onll on pages 73 and 74 of the proceedings
before the Permanent Arbitrator. The Applicas unhappy with with the SCC’s decision and in due course a trade dispute was referred
to the Arbitration Tribunal for settlementp; As appears from pages 72 and 73 of the record the sole question before the Tribunal
was was whether the SCC:
“In giving 6 months notice to e the above named officers (was) wrong and unjustified and and the notices should be withdrawn.”
The applicant advanced a number of arguments before the Permanent Arbitrator. The muestiaised were whethwhethehether the SCC had
a right under the collective agreement unilaterally and without prior consultation to i clause 19(ii) and whether an agreement reached
between the SCC and the Applicant in 1990 a990 affected the terms of the clause.
The Permanent Arbitrator noted that thad been a previous award by the former Permanent Arbitrator interpreting clause 19(ii) in )
in favour of the SCC and that that award had been left undisturbed by the High Court (see SCC v Suva City Council Staff Associa/u> - JR 3/89 3/89). The Permanrbitrator also rlso ruled that the 1990 Agreement did not
qualify clause 19(ii) but was a specific agreement exclusive to tght eees which it covered. The PermaArbitrabitrator’stor’s reasons
for reaching his concluonclusions are clearly set out on pages 76 and 77 of the record. I can fi fault with them.
The main thrust of Mr Maharaj’s submissions before this Court (written copies of which were filed on 29 October22 November) was that
the Pthe Permanent Arbitrator’s award overlooked Section 38 of the Constitution of the Fiji Islands 1997. This is the equality Section
the relevant parts of which read as follows:
“Equality
38 - (1) Every person has the right to equality before the law.
(2) A person must not be unfairly discriminated against, directly or indirectly onground of his or her:
(a) ... age ...”
Mr Maharaj’s argument was simply that clause 19(ii) of the collective agre between the SCC and the Applicant is unlawful by virtue
ofue of Section 38.
On 28 July 1999 when the matter first crst came before me I called for written submissions on this ground. harajd on 22 November
mber mber and Mr Parshotam filed his answer on 17 March. Mr Maharaj argued his with with considerable skid conviction while the
very complicated possible consequences of introducing section 38 int8 into the argument are set out with admirclarity on pages 11
to 26 of Mr Parshotam’s paper.
At this stage some essential aspects of the law of employment in Fiji as it presently exists must be rememberesp;
First, there is no statutoryof unfair dismissal in Fiji as such. There is, for example, no equivalent to the Engl English Trade Unions
and Labour Relations Act 1974. The primary legislats stil still the Employment Act (Cap 92) although section 33(2) of the Constitution guaranthe “right to fair labour prur practices”. Whether the two are in any
way in conflict has not been judicially considered.
Secondly, the procedure for referring trade dispuuch as the present dispute to the Arbitration Tribunal is that set out in section
6 of the the Trade Disputes Act (Cap 97) and is not at all the same as the procedure for establishing whether a dismissal is unfair such as is contained in the 1974
English Act.
Thirdly, the procedural rules oural justice do not generally apply to the private employer/employee relationship and JudicJudicial
Review is not available to review decisions taken in that context (see e.g. Praveen Prakash Palani v FEA - FCA Reps 97/271).
ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The Arbitrator’s terms of reference which were presumably eithafted by the Applicant or the Permanent Secretary for LabouLabour have
already been noted. The somewhat imprecise bute but seem to advance a breach of the collective agreement rather than a general allegation
of unfairness. Section 38 of the 1onstin is not mentioned and was not invokfo beforeefore thre the Permanent Arbitrator at any
stage. Whetr not the collectgreemgreement between the SCC and the Applicant is “a law” for the purposes of section 38 was neas neither
raised nor considered. No inqunbsp;ould be essentssential to determine whether this partiparticular age delimitation was an unfair
form of discrimination, waled fom the Arbitrator otor or held. Whether in Fiji’s circumstances a collective agreementement is capable
of removing the element oairness from an age differentiation, as has been held to be the case in Canada (sesee e.g. Dickason v University of Alberta [1992] 2 SCR) was not a question upon which in this reference the Permanent Arbitrator was called to rule. It is ho, cleom previouslyously
puby published awards including two of those already referred to namely 10 and 36 of 1999 that the Permanent rator’s view is that
it may.
