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Contruction, Energy and Timber Workers Union of Fiji and PAFCO Employees Union v Fiji Electricity Authority and Pacific Fishing Company Ltd [2011] FJHC 821; ERCA 11.2011 (24 August 2011)

IN THE EMPLOYMENT RELATIONS COURT AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCA NO. 11 OF 2011

BETWEEN:

CONSTRUCTION, ENERGY AND TIMBER WORKERS UNION OF FIJI AND PAFCO EMPLOYEES UNION
APPLICANTS

AND:

FIJI ELECTRICITY AUTHORITY AND PACIFIC FISHING COMPANY LIMITED
RESPONDENTS

Appearances: Mr. Noel Tofinga for the Applicants.
Mr. V. Kapadia for the Respondents.
Date / Place of Hearing: Friday 15th July, 2011 at Suva
Date/Place of Judgment: Wednesday 24th August, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

EMPLOYMENT – questions of law referred to Employment Relations Court from Employment Relations Tribunal in light of an amendment to the Employment Relations Promulgation – question of law being whether the ERP applies to employers and workers in work places like Fiji Electricity Authority being a commercial statutory authority and Pacific Fishing Company Limited being a substantially owned government commercial entity.

Legislations
The Employment Relations Promulgation 2007 ("ERP")
The Employment Relations (Amendment) Decree – Decree No. 21 of 2011 ("ERAD 21 0f 2011").
Public Enterprises Act 1996.

Cases/Texts
Burns v. Ransley (1949) CLR 101.
R v Barnet London Borough Council, ex p Nilish Shah [1983] 2 AC 309.
Barnard v Gorman [1914] AC 378.
Hornby, A.S., Oxford Advanced Learner's Dictionary of Current English," 7th Edition, 2005, Oxford University Press, UK.

The Cause

1. This is an original cause before the Employment Relations Court ("ERC") to determine questions of law pursuant to section 217 of the Employment Relations Promulgation 2007. I am not exercising an appellate jurisdiction when dealing with the said questions of law and thus the registry should not have assigned this action an appeal number but an original cause number.
2. The applicant requires the following questions of law to be determined by this Court.
   
   • (a) Whether the ERP still applies to all employers and workers in workplaces in Fiji, including statutory authorities, particularly the Fiji Electricity Authority in view of the Employment Relations (Amendment) Decree 2011?
     
   • (b) Whether the ERP still applies to all employers and workers in workplaces in Fiji, including government entities with government being the majority shareholder of the said entity, particularly the Pacific Fishing Company in view of the Employment Relations (Amendment) Decree 2011?
     
   • (c) In the event the Court determines that the ERP does not apply to some or all of the workers mentioned above, in which forum can the said workers refer their employment grievances to, for resolution?
     
3. The Employment Relations Tribunal ("ERT") had on the 26th day of May, 2011 granted leave to the applicants to refer the said questions of law to the ERC.
4. It is pertinent for the Court to first mention the law that has given rise to the said questions of law. The law is enshrined in s.2 of the ERAD 21 of 2011. S. 2 reads:-
   

"2. Section 3 of the Employment Relations Promulgation No. 36 of 2007 ("the Promulgation") is amended by deleting the whole section and substituting –

"3. - (1) Subject to subsection (2), this Promulgation applies to all employers and workers in workplaces in Fiji, including local authorities, statutory authorities and the Sugar Industry.

(2) This Promulgation does not apply to the Government, including the Public Service Commission, and members of the Republic of Fiji Military Forces, Fiji Police Force and Fiji Corrections Service. Provided however that the Government shall be subject to the Tribunal for any claims under the Workmen's Compensation Act (Cap. 14) and the Health and Safety at Work Act 1996".

5. The replaced section of the ERP is s.3 which read as follows:-
   

"3.—(1) Subject to subsection (2), this Promulgation applies to all employers and workers in workplaces in Fiji, including the Government, other Government entities, local authorities, statutory authorities and the Sugar Industry.

(2) This Promulgation does not apply to members of the Republic of Fiji Military Forces, Fiji Police Force and Fiji Prisons and Correction Services."

6. Section 3 of the ERAD 21 of 2011 also stipulates the effect of any proceedings against the State. It states:-
   

"3. The Promulgation is amended by inserting the following new section after section 265 –

266.—(1) Any action, proceeding, claim, dispute or grievance of any form whatsoever (except for any claims under the Workmen's Compensation Act (Cap. 94) and the Health and Safety at Work Act 1996) in any court, tribunal or any other adjudicating body which purports to or purported to challenge or involves the Government of the Republic of Fiji, any Minister or the Public Service Commission which has been brought by virtue of or under this Promulgation shall wholly terminate upon the commencement of the Employment Relations (Amendment) Decree 2011, and a certificate to that effect shall be issued by the Chief Registrar, Tribunal or any other person or body exercising a judicial function.

(2) Any orders of the Employment Relations Tribunal or the Employment Relations Court whether preliminary or substantive in any action, proceeding, claim, dispute or grievance of any form whatsoever (except for any claims under the Workmen's Compensation Act (Cap. 94) and the Health and Safety at Work Act 1996) which had been brought by virtue of or under this Promulgation and purports to or purported to challenge or involves the Government of the Republic of Fiji, any Minister or the Public Service Commission shall wholly terminate upon the commencement of the Employment Relations (Amendment) Decree 2011, and a certificate to that effect shall be issued by the Chief Registrar, Tribunal or any other person or body exercising a judicial function.

(3) A certificate issued under subsections (1) and (2) is conclusive of the matters stated in the certificate and shall not be subject to challenge in any court, tribunal, Commission or any other adjudicating body."

The Applicants Submissions

7. Mr. Tofinga submitted that s.3(2) of the ERAD No. 21 of 2011 specifically states that the ERP does not apply to the Government including the Public Service Commission Workers, members of the Republic of the Fiji Military Forces, Fiji Police Force and Fiji Corrections Service. It does not exclude workers in the statutory authorities and business houses with government shareholding incorporated under the Companies Act particularly the Fiji Electricity Authority ("FEA") and the Pacific Fishing Company Limited ("PAFCO").
   
8. Mr. Tofinga submitted that if the intention of the legislature was to exclude all the government entities then the amending section would have specifically said so, like it excludes the Public Service Commission, Fiji Military Forces, Fiji Police Force and Fiji Corrections Services. The intention of the legislature was not to exclude these government entities and to hold otherwise would be grossly unreasonable.
   
9. Mr. Tofinga also submitted that FEA is a statutory authority established under s.3 of the Electricity Act, Cap. 180. PAFCO is a limited liability company established under the Companies Act, Cap. 247. The FEA is an independent government entity pursuant to s.3 of the Electricity Act, Cap. 180. PAFCO is a stand alone legal entity. When these bodies are sued, they can be sued in its name alone without requiring the Attorney General to be named as a party to the proceeding alongside it. He further stated that s.2 of the Interpretation Act, Cap. 7 states that "government" means "Government of Fiji" and it may by implication include any of its various entities which entail the Attorney General's Office to be named alongside them as a co-respondent. It is therefore clear that these entities cannot be included in the definition of government because they are independent of the government and they can be sued in their names alone.
   
10. It was further argued that s.2 of the ERAD 21 of 2011 has to be approached with objectivity. One has to accord it the natural and literal meaning and when the natural and literal meaning is given, it is crystal clear that the word government does not include government entities.
    

Respondents Submission

11. Mr. Kapadia submitted that government commercial entities and commercial statutory bodies are now excluded from the application of the Promulgation as they are government owned and controlled and part of the government. These government commercial companies and statutory bodies are subject to the Financial Management Act 17 of 2004 as defined by the Public Enterprises Act. They are subject to an annual audit by the Auditor General pursuant to section 100 of the Financial Management Act and are also subject to Financial Instructions from the government.
    
12. It was also submitted that PAFCO, being a limited liability company has 8,000,000 shares out of which 5,864,478 ordinary shares are held by the government of Fiji. 1,500,000 redeemable shares are also held by the Government of Fiji making a total issued share capital of 7,400,000. Government owns about 98% shares in PAFCO. It is substantially owned by the Government of Fiji. It is a government commercial entity pursuant to s.4 of the Public Enterprises Act. It takes directives from the Minister of Public Enterprises. Mr. Kapadia stated with reference to the case of Burns v. Ransley (1949) CLR 101 that Mr. Justice Dixon in the context of comments on the Crimes Act 1914 – 1946 (Commonwealth) defined the word Government at paragraph 9 as follows:-
    

"I take the word "Government" to signify the established system of political rule, the governing power of the country consisting of the executive and the legislature considered as an organized entity and independently of the persons of whom it consists from time to time."

Mr. Kapadia argued that PAFCO takes it directives from the Minister of Public Enterprises. PAFCO therefore is an executive arm of the government. He also stated that government includes all government entities whether they be 100% government owned commercial entities or substantially and majority owned government commercial entities such as PAFCO.

13. Mr. Kapadia stated that if the amending decree had sought to retain the applicability to government entities such as PAFCO then it would have retained the words "government entities" in section 3(1) of the ERAD 21 of 2011 or made it expressly clear that government entities are subject to the Promulgation. It did not do so. The intention of the law maker is therefore clear: that all government entities which are comprised in the term "government" are excluded from the application of the Promulgation. The plain and unambiguous literal meaning of section 3(2) of the ERAD 21 of 2011 is that majority or substantially owned government commercial entities such as PAFCO are now excluded from the application of the Promulgation.
    
14. In respect of the other applicant, FEA, Mr. Kapadia submitted that FEA is a government commercial statutory body pursuant to Legal Notice No. 149 of 1999 made pursuant to section 74 of the Public Enterprises Act 1996. FEA was declared a commercial Authority as set out in schedule 4 to the said Act. The term "government entity" is defined in that Act to include a commercial statutory authority such as FEA. Mr. Kapadia submitted that the ERAD 21 of 2011 states that the Promulgation applies to "statutory authorities" in section 3(1) but does not distinguish the term. Section 3(2) of the ERAD 21 of 2011 states that the provision does not apply to the government. The term 'statutory authority' in s.3 (1) of the ERAD 21 of 2011 does not include government entities such as FEA which is a commercial statutory authority under the Public Enterprises Act 1996.
    
15. Whether an entity requires the Attorney General to be named in legal proceedings is not a relevant criterion in interpreting the provisions of s.3 of the ERAD 21 of 2011.
    
16. Mr. Kapadia said that if the applicants arguments are upheld then an absurd result would be produced whereby some arm of the government are excluded from the ERP but other arms of the government such as 100% or substantially owned government commercial entities and government statutory bodies are subject to the ERP.
    
17. It was stated by Mr. Kapadia that if the ERP excluded the government entities, then the employees of the government commercial entities will have recourse to the High Court of Fiji for employment related disputes.
    

The Law

18. S. 217(1) of the ERP permits the ERT to refer a question of law to the ERC for its opinion.
    
19. This court has jurisdiction to determine questions of law referred to it by the Tribunal. The jurisdiction arises from s.220 (1) (d) of the ERP.
    
20. It is pursuant to s.220(1)(d) of the ERP that I exercise my powers to determine the question of law referred to me by the Tribunal
    

The Determination

21. The first question of law is whether the ERP applies to the employers and workers of FEA?
    
22. The original s.3(1) of the ERP read:-
    

"3(1) subject to subsection (2), this Promulgation applies to all employers and workers in workplaces in Fiji including the Government, other Government entities, local authorities, statutory authorities and the Sugar Industry."

23. S.3 (1) of the ERAD 21 of 2011 has replaced the original s. (3) by excluding the words "the government" and "other government entities".
24. Section 3(2) of the original ERP read:
    

"3(2) This Promulgation does not apply to members of the Republic of Fiji Military Forces, Fiji Police Force and Fiji Prisons and Correction Services."

25. The amending s.3(2) of the ERAD 21 of 2011 states:-
    

"3(2) This Promulgation does not apply to the Government, including the Public Service Commission, and members of the Republic of Fiji Military Forces, Fiji Police Force and Fiji Corrections Service..."

26. FEA is a statutory authority established under s.3 of the Electricity Act Cap. 180. It is also undisputed that FEA is a commercial statutory authority.
    
27. Both the initial and the amending provision of s.3 (1) states that the ERP applies to all employees and workers in work places in Fiji including statutory authorities.
    
28. The term statutory authority is wide enough to cover all authorities established under a statute whether the nature of its operation is commercial or otherwise.
    
29. If the intention of the legislature was to exclude commercial statutory authority, then I would have expected the legislature to have been more specific and to have expressly stated the same to be so.
    
30. Further, FEA cannot possibly be defined under the term government. Government in its natural and ordinary meaning means "a group of people who are responsible for controlling a country or a state".
    

Hornby, A.S., Oxford Advanced Learner's Dictionary of Current English," 7th Edition, 2005, Oxford University Press, UK.

31. FEA is a body corporate which indulges in commercial activity of providing services to the people of Fiji. It is not responsible for controlling Fiji. The main purpose of its establishment is to generate and supply electricity for use by the people of Fiji. It does not control the State in any way. Indeed the government has shares in the body. The financial investment and gain from an entity does not mean that the entity can be classified as one that controls the State. It also does not become the executive arm of the government in any way.
    
32. I would adopt the definition of Justice Dixon in Burns v. Ransley [1949] HCA 45; [1949] HCA 45; (1949) 79 CLR 101 that the word "government" in s.3(2) of the ERAD 21 of 2011 means "the established system of political rule, the governing power of the country consisting of the executive and the legislature". The definition by Justice Dixon is the natural and ordinary meaning of the term "government". I am of the judgment that the statutory framework and the legal context in which the term "government" is used in the ERP and the ERAD 21 of 2011 does not require a different meaning to be assigned to the term. "By giving the words their natural and ordinary meaning one helps prevent the growth and multiplication of refined and subtle distinctions in the law's use of common English words. Nothing is more confusing and more likely to bring the statute law into disrepute than a proliferation by judicial interpretation of special meanings, when the legislature has not enacted any": R v Barnet London Borough Council, ex p Nilish Shah [1983] 2 AC 309 per Lord Scarman at 343G & 345H – 346A.
    
33. "Our duty is to take the words as they stand and to give them their true construction having regard to the language of the whole section, and, as far as relevant, of the whole Act, always preferring the natural meaning of the word involved, but none the less always giving the word its appropriate construction according to the context": Barnard v Gorman [1914] AC 378 per Viscount Simon LC at 384.
    
34. If the legislature in this case had intended a different meaning to be assigned to the term government then I am of the judgment that it would or should have expressly said to include the government entities in the term government.
    
35. FEA is not the governing body of the State and as such any reading of FEA as government would be contrary to the plain and simple reading of the term "government" enshrined in ERAD 21 of 2011.
    
36. The Courts answer to the first question of law is therefore, in the affirmative that the ERP 2007 applies to all employers and workers in workplaces in Fiji including statutory authorities and specifically the Fiji Electricity Authority.
    
37. This leads me to the second question which is whether the ERP 2007 still applies to all employers and workers in workplaces in PAFCO being a government entity with government being a majority shareholder in the said company.
    
38. PAFCO is a limited liability company. It is a government commercial entity pursuant to section 44 of the Public Enterprises Act. The initial s. 3(1) of the ERP stated that the ERP applied to other government entities. The amending provision has removed the applicability to government entities but also does not expressly exclude the application to government entities. However the initial provisions by section 3(1) stated that the ERP applied to the government and the amending provision by 3(2) has now expressly excluded applicability to the government.
    
39. Mr. Kapadia's argument is that if the applicability to government entities has been removed by the amending s. 3(1), then the intention of the legislature is clearly shown that the ERP does not apply to government entities. I do not agree with Mr. Kapadia's submission.
    
40. The Preamble of the ERP states the purpose of the enactment and one of the purposes is to "provide a statutory framework which provides the welfare and prosperity of all Fiji's people by providing a structure of rights and responsibilities for parties engaged in employment relations and efficient settlement of employment related disputes".
    

Underlining is mine for reference and emphasis

41. If the ERP applies to all people of Fiji then applicability can only be excluded by express provisions of the Act. Although the amending section does not include the applicability to government entities, it also does not expressly exclude the application to government entities. If the government entities had to be excluded then the legislature would or should have expressed that in no uncertain terms without leaving the aggrieved parties to hunt for an answer.
    
42. I also do not accept Mr. Kapadia's argument that the word government includes PAFCO because it is a substantially owned government commercial entity. The word government is used in its natural meaning in section 3(2) of the ERAD 21 of 2011. There is no ambiguity in the use of the term. There is thus no room for manoevre. In simple terms, it is then not for me to embellish, alter, subtract from or add to words which, for once at least, the legislature has employed without any ambiguity. This court will not be over-zealous to search for ambiguities or obscurities in words which on the face of them are plain.
    
43. If the word government included government entities then there was no need for the legislature to stipulate independent entities like the Public Service Commission, the Fiji Military Forces, the Fiji Police Force and the Fiji Corrections Services. They would all have come under the term government anyway. Why then was the need for including the additional institutions? It is because the term government is strictly limited to the definition I have adopted.
    
44. This leads me to answer the second question in the affirmative that yes the ERP applies to PAFCO which is a government entity where government has a majority shareholding.
    
45. The third question of law that was put forward by the Tribunal was where FEA do and PAFCO employees lodge their claim for resolution? I do not need to answer the question because they are entitled to use the provisions of ERP and choose the forum they wish to lodge their claim in. If the ERP did not apply to FEA and PAFCO then the claim could neither be lodged in Court or the Tribunal under the ERP. The parties would have to file employment dispute in Court under the common law provisions and not the statutory provisions.
    
46. Mr. Kapadia has stated that the interpretation to include applicability of ERP will lead to absurd results that some government institutions can use ERP to bring employment related claims and others cannot. I do not see any absurdity in this because the same argument can continue to apply that ERP was only meant for non government owned or run institutions and not for the government and government entities. However the interpretation of Mr. Kapadia will lead to absurd results bearing in mind the purpose of the enactment.
    

Final Orders

47. For the foregoing results, I order that
    
    • (a) The matter ERCA No. 11 of 2011 be now sent to ERT to determine the issue under the provisions of ERP as the verdict of the ERC is that the ERP applies to both the FEA and PAFCO.
      
    • (b) Each party to bear their own costs.
      
    • (c) Orders accordingly.
      

ERCC No.3 of 2011

48. A similar question arose in the above case between Sera Nicholls v. Suva City Council.
    
49. I do not think I will delve into great depth in this matter. Both the initial and the amending provisions state that the ERP applies to local authorities. The applicability is specifically included.
    
50. I find no ambiguity in any of the enactments to look outside the Act for an answer.
    
51. Suva City Council is a local authority as defined by section 4 of the ERP and as such it is subject to ERP.
    

Final Orders in respect of ERCC No. 3 of 2011

52. ERP applies to Suva City Council. I will now fix a hearing date on the application for compliance orders. Costs will be "costs in the cause".
    
53. Orders accordingly.
    

ANJALA WATI
Judge

24.08.2011

To:

1. Mr. Noel Tofinga, Counsel for the Applicant.
2. Mr. V. Kapadia, counsel for the Respondents.
3. Mr. Khan, counsel for the Respondent in ERCC 3 of 2011.
4. File: ERCA 11 of 2011 and ERCC 3 of 2011.