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Airports Fiji Ltd v Fiji Public Service Association [2002] FJHC 46; HBC0465d.2001s (15 April 2002)

IN THE HIGH COURT OF FIJI
(AT SUVA)

CIVIL ACTION NO. HBC 465 OF 2001S

Between:

AIRPORTS FIJI LIMITED
Plaintiff

and

FIJI PUBLIC SERVICE ASSOCIATION
First Defendant

and

PERMANENT SECRETARY FOR LABOUR
AND INDUSTRIAL RELATIONS
Second Defendant

Ms. S. Saumatua
H. K. Nagin for the First Defendant
J.J. Udit for the Second Defendant

DECISION

This is an application by the First Defendant brought pursuant to RHC O 18 r 18 to strike out the Plaintiff’s claim on the ground that it is scandalous, frivolous, vexatious and an abuse of the process of the court. The application is supported by the Second Defendant.

Prior to April 1999 the operation of Fiji’s Airports was the responsibility of the Civil Aviation Authority of Fiji. The Authority was established by Act of Parliament (Cap. 174A) and while it was a body corporate employing its own personnel (Section 12) there was provision for the secondment to it of public officers (Section 33) and in reality it was little different from any other specialised government entity.

In 1996 a process of reform similar to the privatisation process seen overseas was begun in Fiji. The Public Enterprise Act 33/96 provided for the corporatisation of government entities and April 1998 the Plaintiff (AFL) was incorporated under the provisions of the Companies Act. AFL took over the functions and responsibilities of the CAAF in April 1999.

One of the important consequences of corporatisation was to take the employees of the new entities out of the public service which had previously employed them. Most of the inherited employees were members of the Fiji Public Servants Association (the FPSA) the dominant union in the public service. CAAF and the FPSA had a collective agreement which was reached in August 1998 and which provided that the FPSA was to have the exclusive right to represent the Authority’s workers.

Because AFL was a different legal entity to the CAAF the High Court at Lautoka (HBJ 15/1998L – Madraiwiwi J) held in November 1999 that the collective agreement between FPSA and CAAF had not been inherited by AFL. The High Court did not however exclude the FPSA from representing such of its members as had been re-employed by AFL.

In May 2001 a dispute arose between AFL and the FPSA regarding what the FPSA claimed was an unjustified lockout of four of its members. The matter was referred to the Permanent Secretary for Labour and Industrial Relations (the Permanent Secretary) under the provisions of the Trade Disputes Act (Cap 97 as amended). On 25 June 2001 acting under Section 3 of the Act the Permanent Secretary accepted a trade dispute between AFL and the FPSA and referred it for disposal by the Permanent Arbitrator.

On 6 July 2001 AFL issued proceedings for judicial review (HBJ 22/2001S). A copy of the Order 53 Statement is Exhibit A to the affidavit of Pratap Chand filed in support of this application. As will be seen from the statement AFL contended that the FPSA was not a proper party to the trade dispute as it was not a union recognised by AFL. Among other reliefs AFL sought a declaration that the Permanent Secretary erred in accepting the trade dispute “since there is no current employee of AFL who is covered by or under the collective agreement between FPSA and CAAF”.

Examination of the file HBJ 22/2001S reveals that on 10 August 2001 AFL sought a stay of the Permanent Secretary’s acceptance of the trade dispute. The application for a stay was returnable on 15 August. On 15 August all parties appeared and after discussion comprehensive directions leading to the rapid disposal of the proceedings were given. It was decided to deal with the matter by way of the expedited procedure made available by RHC O 53 r 3 (8). Importantly, however, the application for a stay was not furthered.

When the matter next came on before me on 12 October I was advised that the Permanent Arbitrator had heard the dispute referred to him by the Permanent Secretary and had indeed already made his award. A copy of that award dated 30 August 2001 is Exhibit JV 2 to the affidavit of Jone Vave filed herein on 23 November 2001. As can be seen from the award both the FPSA and AFL took part in the proceedings before the Permanent Arbitrator.

On 16 November 2001 AFL sought leave to discontinue HBJ 22/2001S and leave was granted on that day. In paragraph 12 of his affidavit filed herein on 21 January 2002 Jone Vave states:

“the Plaintiff by its counsel explained to the Court upon seeking leave to discontinue that the Plaintiff felt that the Tribunal Award had resolved all issues arising out of the decision of the (Permanent Secretary) which was subject to the Judicial Review except on recognition which the tribunal decided merely to comment but not to rule on and the Plaintiff decided that there will be no practical sense in it continuing to pursue its application for the Judicial Review of the decision of the Permanent Secretary”.

I must confess that I found it difficult to follow the reasoning behind this decision. Since the aim of HBJ 22/2001S was to obtain a declaration that the Permanent Secretary was wrong to accord the FPSA the right to represent any employees of AFL, the outcome of a particular reference to the Permanent Arbitrator seems to me to be of very limited relevance. When this was put to Ms. Saumatua she had difficulty in explaining the decision more clearly.

Seven days after the discontinuance of the Judicial Review proceedings against the Permanent Secretary the Originating Summons commencing these proceedings was issued. As will be seen from the declarations sought the central issue raised in HBJ 22/2001S namely the right of the FPSA to represent employees of the AFL is being squarely raised again. It is again being said that the Permanent Secretary was not empowered to accept a trade dispute reported to him by the FPSA since the FPSA is not a union recognised by AFL.

In support of this application filed on 27 December 2001 Mr. Nagin (whose submissions were adopted and supported by Mr. Udit) pointed out that the propriety of the Permanent Secretary’s decision arising as it did under the powers accorded to him by the Trade Disputes Act was clearly a matter of public law and as such should have been commenced by way of Judicial Review proceedings. Probably recognising that principle the Plaintiff had first begun in that way but had then discontinued. Citing O’Reilly v. Mackman [1983] UKHL 1; [1983] 2 AC 237 (frequently followed not only by the High Court of Fiji but also by the Fiji Court of Appeal as pointed out by Mr. Udit in his helpful written submission) Mr. Nagin submitted that the Plaintiff was abusing the process of the court by attempting to circumvent the leave and time limitation imposed by Order 53 by commencing these proceedings by Originating Summons. Mr. Nagin also pointed out that no steps had been taken by AFL to disturb the award of the Permanent Arbitrator which of course followed the referral of the dispute to him by the Permanent Secretary.

As already indicated it is not at all clear to me why the Judicial Review proceedings 22/2001S were withdrawn. I suspect that the decision to discontinue was taken in error. The question now however is whether the AFL should again be allowed to raise for consideration virtually the same questions previously abandoned.

The right to recognition of a union by an employer is a very important matter. Whether recognition can be acquired by conduct or subsequent to ministerial direction or whether recognition may only be accorded and acquired by following the procedures laid down in Part II of the Trades Unions (Recognition) Act 53/1998 are also substantial and significant questions of law and ones which are certainly not frivolous or vexatious. The need however for parties coming to Court to comply even to a minimal extent with the rules and procedures of the Court seems to me to also to be of considerable importance.

As already seen the Courts had repeatedly held that it is an abuse of process to come by way of Originating Summons rather than Judicial Review in public law matters where the private law proceedings would, if allowed to continue, result in the leave and time requirements of O 53 being evaded. These restrictions on applications for judicial review are necessary to avoid detriment to good administration in the public or quasi public sector.

As I see it, it is also of significance that to stop the present proceedings now would neither determine the important issues between the parties nor prevent their determination in future. No question of res judicata arises. As pointed out by counsel for the Defendants it is a virtual certainty that an opportunity will shortly arise when the important questions to which I have already alluded can be thoroughly examined.

In my opinion the manner in which this litigation has been conducted by AFL does not sufficiently conform with established requirements. The application succeeds and the Originating Summons is struck out.

M.D. Scott
Judge

15 April 2002