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State v Permanent Secretary for Labour, Industrial Relations and Productivity, Ex parte Airports Fiji Ltd [2005] FJHC 728; HBJ31J.2002S (18 April 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ31J.02S

IN THE MATTER of an application for Judicial Review by AIRPORTS FIJI LIMITED

AND

IN THE MATTER of the Trade Disputes Act.

BETWEEN:

THE STATE

AND

THE PERMANENT SECRETARY FOR LABOUR,
INDUSTRIAL RELATIONS AND PRODUCTIVITY

ARBITRATION TRIBUNAL

THE FIJI PUBLIC SERVICE ASSOCIATION
RESPONDENTS

EX-PARTE:

AIRPORTS FIJI LIMITED, a limited liability company with its registered office at Nadi.
APPLICANT

Counsel for the Applicant: K. Vuataki: Vuataki & Qoro
Counsel for the 1st & 2nd Respondents: J. J. Udit: Attorney-General’s Chambers
Counsel for the 3rd Respondent: H. Nagin: Sherani & Co.

Date of Judgment: 18 April, 2005
Time of Judgment: 9.30 a.m.

JUDGMENT

This is a claim for judicial review by the Applicant against three (3) decisions of three (3) separate decision-making bodies, namely, the Permanent Secretary for Labour as the First-named Respondent, The Arbitrational Tribunal as the Second-named Respondent, and the Minister for Labour and Industrial Relations, in respect of an alleged trade dispute.

The decision of the First-named Respondent that is being challenged was his acceptance on 24 October 2001 of a trade dispute reported by the Fiji Public Service Association (FPSA), the Third-named Respondent, on a log of claims for 2000 submitted to the Applicant based on Cost of Living Adjustment (COLA) in favour of FPSA members employed by the Applicant. The second decision challenged belongs to the Minister of Labour and Industrial Relations after referring the dispute to the Tribunal. Finally, the award of the Tribunal.

The reliefs sought by the Applicant are as follows:

" (a) Certiorari to bring before this Court and quash the decision of the Permanent Secretary for Labour, Industrial Relations and Productivity to accept and report to Minister for Labour, Industrial Relations and Productivity, a trade dispute existing between Fiji Public Service Association and Airports Fiji Limited.

Certiorari to bring before this Court and quash the decision of the Minister for Labour, Industrial Relations and Productivity, in authorising Permanent Secretary for Labour, Industrial Relations and Productivity to refer to Arbitration Tribunal, a trade dispute existing between the Fiji Public Service Association and Airports Fiji Limited.

Certiorari to bring before this Court and quash the decision of the Permanent Arbitrator reference Award No. 26 of 2002 dated the 15th day of July 2002.

Interim Stay of the decision of the Permanent Arbitrator referenced Award No. 26 dated the 15th day of July 2002."

The grounds relied up for the claim are based on illegality, irrationality and procedural impropriety in respect of the decisions of the 1st and 2nd-named Respondents, and illegality and irrationality in respect of the decision taken by the Minister.

BACKGROUND

Once upon a time the control of Civil Aviation in Fiji was vested in the Minister responsible for tourism transport and civil aviation under the Civil Aviation Act (Cap. 174) of 1976. On 1st October 1979, the Civil Aviation Authority of Fiji (CAAF) came into existence and assumed control of all such functions as are prescribed under Cap. 174 as well as those defined under the Civil Aviation Authority of Fiji Act (Cap. 174A).

In 1996, the Rabuka government enacted the Public Enterprise Act as a vehicle for the reorganisation of government departments statutory bodies and companies with the view towards more efficiency and profitability of their operations.

The Civil Aviation Authority of Fiji was one of those that was re-organised through the Civil Aviation Reform Act 1999. It saw the regulatory functions of the Authority divested into and become a new entity known as the Civil Aviation Authority of Fiji Islands (CAAFI), while its commercial functions were inherited by the Airports Fiji Limited (AFL), a new government commercial venture.

The Fiji Public Association (FPSA), the Third-Named Respondent, had, prior to the breaking up of CAAF, a Collective Agreement with CAAF existing and registered on 11 September 1998. No collective agreement was ever negotiated between the FPSA and AFL

On 20 December 2000 FPSA submitted "a Log of Claims – 2000" to AFL on behalf of its members demanding and increase of 10% COLA with effect from 1 January 2001. A further reminder was sent on 6 August, 2001 noting its disappointment at not receiving any further response to its initial acknowledgement of 3 January 2001.

On 24 August 2001, having failed to get any further response from AFL the FPSA reported to the Permanent Secretary for Labour that there existed a trade dispute between the parties in accordance with section 3 of the Trade Disputes Act (Cap. 97) ("the Act"). The Permanent Secretary subsequently accepted the report of a trade dispute on 24 October 2001 under section 4 of the Act and thereafter appointed a conciliator pursuant to section 4 (1) (d). The meeting on 5 December 2001 called by the conciliator did not happen because AFL failed to attend.

In a letter dated 5 December 2001, the legal advisers to AFL informed the Permanent Secretary for Labour, of the reason AFL would not be attending the conciliation talks. TheY stated, inter alia,

".... Our client’s decision is based in turn on our client’s claim and insistence throughout that it has never recognised FPSA as a proper party to any trade dispute reported to you against our client under the provisions of the Trade Dispute Act.

You are fully aware of our client’s reasons for its claims, but you continue to insist on accepting FPSA as a party to these trade disputes. As a result our client has already filed a Court action in which it is seeking the proper resolution of this dispute over this issue on recognition for FPSA once and for all. Therefore, until the Court has ruled on our client’s legal action, it is not legally proper for it to take any action (including submitting to any procedural

requirement arising out of any trade dispute reported against it by the FPSA) which will prejudice its rights now pursued in Court."

On 7 January 2002, the Permanent Secretary for Labour declared a deadlock and 2 days later, referred the matter to the Arbitration Tribunal pursuant to section 6 (2) (b) of the Act. The Tribunal, with the consent of both parties held a preliminary hearing on 20 February 2002 while the actual hearing of the dispute was conducted by way of Submissions when the parties appeared before the Tribunal on 22 April, 2002. In both at the preliminary and substantive stages of hearings, AFL had forcefully argued that the question of recognition of FPSA by it, is a pre-requisite to the issue of whether the Arbitration Tribunal, or for that matter the Permanent Secretary for Labour, had the jurisdiction to deal with the matters affecting the AFL workers ostensibly represented by FPSA.

In its Ruling or Award (Award No. 26 of 2002) of 15 July 2002, the Tribunal decided that the issue of FPSA recognition by AFL, had already been ruled upon by the Tribunal in Award No. 24/2001. In it, the Tribunal said that it was more than satisfied that enough evidence had come before it, for it to infer that AFL had accorded FPSA recognition. Furthermore, the Tribunal in Award No. 26/2002, noted that in the intervening period and before the Award, the parties had executed an agreement under which AFL recognises FPSA as representative of its members in the Company for the purpose of collective bargaining.

The Minister’s Decision

The challenge is purportedly against the Minister for Labour’s authority and consent under section 6 (2) of the Act for the Permanent Secretary to refer the alleged trade dispute to an Arbitration Tribunal. The Minister however, has not been named a party to these proceedings. The omission is fatal and the Court has no alternative but to dismiss the action against the Minister.

The Question of FPSA Recognition by AFL

All the parties agree that this issue is at the heart of the case. Other major grounds raised by the Applicant to support its application and the reliefs it seeks will stand or fall on the decision of recognition.

The Applicant’s position is premised on the argument that before recognition is accorded to a registered trade union, there must be strict compliance with the requirements of the Trade Unions (Recognition) Act (Cap. 96A) and specifically sections 3 and 4 (as to voluntary recognition) and section 6 (as to compulsory recognition). It argued that since FPSA had neither requested from the AFL voluntary recognition, nor had FPSA applied for compulsory recognition under section 6, it did not have or possess the legal authority to bargain collectively on behalf of the AFL workers. Collateral argument raised by the Applicant is that the Collective Agreement between CAAF, the AFL predecessor and FPSA, of 11 September 1998, did not apply to AFL.

Counsel for the Respondents referred this Court to the Fiji Court of Appeal decision in the Fiji Public Service Association v. Arbitration Tribunal & Airports Fiji Limited Civil Appeal No. ABU 10/2002, in which the Court very clearly was of the view that AFL had, through a pattern of behaviour and especially in its dealings with FPSA, tacitly agreed that the 1998 Collective Agreement was applied to it also. Referring in particular to the minutes of AFL board meeting of 21 December 1999 which recorded the board’s acceptance of the Agreement, the Court stated:

"Counsel for Airports accepted, in our view correctly, that this correspondence, and in particular the directors’ minute, established that Airports had agreed that the Agreement applied to it."

While it may be true that the FCA decision did not specifically rule on the question of recognition by AFL of FPSA as a registered trade union and representative of AFL workers, the Court’s finding that the AFL is bound by the terms of the Collective Agreement of 1998, ipso facto means that it recognises the legal status of FPSA as a party to the said Agreement and therefore capable of representing the AFL workers.

This brings me to the Applicant’s submission that the procedural requirements for a registered trade union recognition is mandatory under the Act. Essentially, in this instance, the issue is whether there can be recognition in the absence of a written agreement between the parties as required under section 3 of the Act. According to AFL and conceded by the Respondents, FPSA did not write to AFL to seek voluntary recognition, and therefore it never had the opportunity to formally respond and express its views, as required of it.

In my view the requirements of the provisions of the Act on the process of recognition must be construed liberally. The Court of Appeal had applied the same principle in Fiji Public Service Association v. Arbitration Tribunal & Airports Fiji Limited (supra) with respect to the 1998 Collective Agreement. Similarly, in the matter of recognition or otherwise of a registered trade union, the Court as indeed the Permanent Secretary of Labour in this instance, can and should be able to make a finding of recognition by other means, as in the conduct of the parties to each other, notwithstanding the procedural requirements of the Act. This is nothing new. There have been instances where the Courts have made a finding of recognition between trade union and employer in the absence of any written agreement. Thus in National Union of Tailors and Garment Workers v. Charles Ingram & Co. Ltd. [1978] 1 All ER 1271, the Court of Appeal held at p. 1273;

"Recognition plainly we think, implies agreement, which of course involves consent. That is to say, it is a mutual process by which the employers recognise the union, which obviously agrees to be recognised and it may come about in a number of different ways. There may be a written agreement that the union should be recognised. There may be an express agreement not in writing.

Or, as we think, it is sufficient if neither of these exists but the established facts are such that it can be said of them that they are clear and unequivocal and gives rise to the clear inference that the employers have recognised the union. This will normally involve conduct over time. Of course the longer the state of facts has existed, the earlier it is in any given case to reach a conclusion that a proper interpretation of them inevitably leads to the conclusion that the employers have recognised the union. Against the test, it has not been suggested here that there is any formal document by which the company recognised the union. It is necessary to look at facts."

Counsel for the Respondents had also referred the Court to Joshua Wilson & Brothers Ltd. v. Union of Shop Distributive and Allied Workers [1978] 3 All ER if and Usdan v. Sketchy Ltd. [1981] 1 RLR 147, two decisions that had upheld and applied the National Union of Tailors and Garment Workers test.

Counsel for the Applicant had attempted to distinguish the English Court decisions on the ground that the Fiji legislation was enacted much later and that it was the clear intention of Parliament that procedural requirements of registered trade union recognition under the Act must be strictly adhered to. With respect, the Court does not agree. It is quite conceivable that there will be situations where an employer has talked and dealt with a trade union on behalf of its members, over a period of time, and have overlooked or ignored the provisions of section 3 of the Act. If the Applicant’s argument is sustained, in the situation I have just described, it would then mean that the employer can renege on any agreement it had reached with the Union at any time. The Court must surely be in a position to prevent such injustice by interpreting the requirements of the Act to encompass also other situations that may not necessarily meet the procedural requirements of the law, but do nevertheless fulfil the purpose and objective of the legislation. In this case, the Trade Unions (Recognition) Act’s primary objective is the provision for the recognition by employers of trade unions for the purposes of collective bargaining. It seems clear to this Court therefore, that where there has been on-going talks and negotiations between an employer and a union for over a period of time, then notwithstanding the fact that their relationship has not been formalised into a written form as required under section 3 of the Act, the Court may still conclude that there is recognition. In the end, all depends on the facts of the case.

Evidence of conduct of recognition in this case are set out in detail by the Permanent Secretary for Labour in his affidavit before this Court, as well as in the affidavit of Mr Rajeshwar Singh, the General Secretary of the FPSA. It is not necessary to reproduce them here. As far as this Court is concerned, the evidence is overwhelmingly in favour of recognition. It is clear and unequivocal and leads inevitably to the conclusion that by its conduct over the period from 1999 to 2000 the AFL had granted recognition to FPSA as a trade union representing some of its workers.

The parties, subsequent to these proceedings the Court is given to understand, have entered into a recognition agreement on 9 June, 2002. The fact remain however, that at the time of the FPSA reporting of a trade dispute to the Permanent Secretary for Labour on 24 August 2001, and the latter’s acceptance of the same on 24 October 2001, there was already, this Court finds, recognition of the FPSA by the AFL.

Other Grounds

Having decided the question of FPSA recognition, it is not necessary for me to delve into any greater details on the Applicant’s submissions in support of its other grounds namely procedural impropriety, illegality and irrationality.

As to the argumentof procedural impropriety in the decision of the Permanent Secretary for Labour to accept the report from the FPSA as a trade dispute, the basis is on the submission that FPSA was not recognised by the AFL. There can only be a trade dispute, according to the Applicant, if there is recognition by the AFL of the FPSA as a trade union and therefore a proper party to the dispute in question. Since the requirements of section 3 of the Act has not been met, the Applicant argued, it was irregular and improper for the Permanent Secretary for Labout to accept the report from FPSA. In the light of this Court’s finding on recognition, it follows that the Permanent Secretary for Labour’s decision to accept the report of a trade dispute amounted to a proper exercise of his powers. The Applicant’s argument of procedural impropriety therefore fails.

The Applicant’s challenge of the exercise of the Minister’s powers under section 6 (2) of the Act has been summarily dismissed above. But even if the action against the Minister subsisted, the grounds of illegality, irrationality and procedural impropriety advanced by the Applicant to support its application to quash the Minister’s decision, would have failed based as they were, on the same question of recognition.

Finally the application to quash the Award by the Arbitration Tribunal is bound to fail since the issue of jurisdiction was dependent on whether the parties and specifically FPSA had locus.

In the end the Court finds that there is no merit in the Applicant’s claim for judicial review. The claim is dismissed.

I award costs of $300 to each of the Respondents.

F. Jitoko
JUDGE

At Suva
18 April 2005