Hassan v Transport Workers Union [2005] FJCA 79; ABU0050.2004 (25 November 2005)

IN THE COURT OF APPEAL, FIJI ISLANDS
ON APPEAL FROM THE HIGH COURT OF FIJI

CIVIL APPEAL N0. ABU0050 OF 2004
[High Court Judicial Review HBC0003 OF 2004S]

BETWEEN:

ALI HASSAN
f/n Abdul Razak
Applicant

AND:

TRANSPORT WORKERS UNION
First Respondent

AND:

PERMANENT SECRETARY FOR LABOUR
AND INDUSTRIAL RELATIONS AND PRODUCTIVITY
Second Respondent

AND:

THE ATTORNEY-GENERAL

Coram: Ward, President
Smellie, JA
Penlington, JA

Counsel: J Cameron for applicant
No appearance first respondent
S Sharma for second and third respondents

Hearing: 23 November 2005
Ruling: 25 November 2005

JUDGMENT OF THE COURT

[1] This is an application for leave to appeal to the Supreme Court from a decision of this Court delivered on 29 July 2005 and for leave to appeal out of time.

[2] The background of the case can be summarised from the Court of Appeal judgment.

[3] The applicant operates a taxi business known as Sanyo Cabs (Sanyo). The business is substantial involving 43 taxis and drivers, seven office clerks and controllers and six mechanics. It is the drivers with whom the appeal was primarily concerned.

[4] The Transport Workers Union represents the interest of workers in the transport industry. On 24 December 2002 the Union’s General Secretary wrote to the applicant pointing out that a majority of Sanyo’s employees had joined the Union and therefore the Union was seeking Sanyo’s voluntary recognition.

[5] The applicant replied the same day declining to recognise the Union and asking for evidence that the Union commanded more than fifty percent of the workforce.

[6] The General Secretary then wrote to the second respondent, the Permanent Secretary, referring to the applicant’s refusal and asking the Permanent Secretary to issue a Compulsory Recognition Order in the Union’s favour under section 8 of the Trade Union (Recognition) Act, 1998.

[7] In order to obtain a Compulsory Recognition Order, a union must demonstrate that it has a membership of over 50% of the employees and that a proper request has been refused by the employer. In the High Court and the Court of Appeal the applicant suggested neither of these requirements had been satisfied. It was argued that the reply to the Union’s request was not in fact a refusal; a contention rejected by the Court.

[8] Following failure by Sanyo to provide records of employment to the Permanent Secretary, enquiries were made which revealed the Union had 63.15% representation. The situation at the Sanyo workplace deteriorated and, in January 2003, the applicant commenced legal proceedings in the High Court against fifteen drivers and the Union seeking damages and declarations that the contract between Sanyo and the drivers did not create an employer/employee relationship.

The Court of Appeal stated:

“As acknowledged by Mr Cameron, much the most important issue in these proceedings was whether the Permanent Secretary in “taking into account all the facts and circumstances appearing to be relevant” (section 8(1)) before issuing the Compulsory Recognition Order was correct in rejecting the appellant’s contention that, however many persons in his workforce the Union might claim to have as members, none of them was an employee and therefore the Union was not entitled to recognition at all. ... The question of recognition simply “did not arise”.

In support of his argument that the drivers were independent contractors rather than employees, Mr Cameron focussed on the terms under which they worked for Sanyo and the proper tests to be applied and the inferences properly to be drawn from them.

... we agree with Mr Cameron that the central question is to be answered by application of the various common law tests which have been formulated and which were considered in Hollis v Vabu Pty Ltd [2001] HCA 44; [2001] 207 CLR 21.’

[9] The Court then passed to a consideration of the terms of the agreement. The Court came to the conclusion that despite some conflicting passages, its overall view was that the manner in which the drivers carried out their work with Sanyo did not alter the basic nature of the relationship which the Court found was one of employer and employee.

[10] The right to apply for leave to appeal to the Supreme Court is provided by section 122 (2) of the Constitution:

“(2) An appeal may not be brought from a final judgment of the Court of Appeal unless:

(a) the Court of Appeal gives leave to appeal on a question certified by it to be of significant public importance; or

(b) the Supreme Court gives special leave to appeal.”

[11] The question that the applicant asks the Court to certify as of significant public importance reads:

“Where persons and entities such as the appellant conducting their business and contractual arrangements on a basis similar to that found to exist between the Appellant and the taxi drivers involved are “employer” and “employee” at common law and for the purposes of the Trade Union Recognition Act 1998[‘the Act’], given that a large number of business enterprises in Fiji are conducted on a similar basis, and in belief that the parties in the position of the taxi drivers are independent contractors and not “employees” at common law, or for the purposes of the Trade Union Recognition Act, and similar legislation in which determination of the relationship is required.”

[12] The application was supported by an affidavit from Rishi Ram, the General Secretary of the Fiji Taxi Union which has 4000 members comprising taxi and hire car proprietors and including the applicant. He deposes;

“4. That the [Fiji Taxi] Union has been following with keen interest the Judicial Review commenced by the appellant herein and the decision of this Honourable Court delivered in 29 July 2005.

5. That I am aware that almost all 937 multiple Taxi Owners conduct their business under contractual arrangements on a basis similar to that found to exist between the appellant and the Taxi Drivers in the belief that the parties in the position of Taxi Drivers are independent contractors.

6. That the judgment delivered by this Honourable Court on 29 July 2005 in this appeal impacts not only on the vast majority of my members some of whom had been subject of scrutiny by the Second Respondent prior to the commencement of the Judicial Review by the appellant but also a number of other persons, such as Bus and Courier Operators, tanker Drivers, bottle collectors, certain sections of the Sugar industry and insurance agents (to name just a few).

7. I am advised and verily believe that there is currently a part-heard contested legal proceedings in the Suva High Court between an Insurance Company and its insurance agents on an issue similar to the one raised in this appeal”

[13] Both counsel first addressed the Court on the question of significant public importance as, clearly, if that is not established the application must fail.

[14] Mr Cameron suggested to the Court that, despite the wording of the question, he would suggest that the arrangement between the applicant and the drivers was one of lease of a chattel. He drew the Court’s attention to the Australian case of Hollis v Vabu Pty Ltd [2001] 207 CLR 2 and the New Zealand case of Bryson v Three Foot Six Limited [2005] NZSC 34, 8 April 2005. In the former, special leave and, in the latter, leave to appeal were granted. Both cases involved consideration of the employer/employee relationship. Mr Cameron suggested they showed that the attitude of those courts was to consider that such issues were of public importance.

[15] Counsel accepted the test, laid down by this Court in the case of Vinod Lal v The State; [2001] FJCA 22; AAU0004.2001S, 22 November 2001, that the applicant must demonstrate both the existence of a question of public importance and that it is significant.

[16] Mr Sharma has supplied the court with the rules on the granting of leave in New Zealand (that the appeal involves a matter of general or public importance or general commercial significance) and Australia (that it is a question of law that is of public importance whether because of its general application or otherwise). He points out that in neither case is there the requirement in our legislation that the matter must be of significant public importance. The Court must therefore bear that in mind in assessing the authority of the two cases cited in relation to the importance of the issue before us.

[17] Mr Cameron presented a carefully constructed submission on the meaning of the agreement in the present case. The judgment of the Court of Appeal was, he suggests, wrong in its interpretation of effect of the terms of the agreement. We would point out that, whether right or wrong, the Court’s decision was based solely on the effect of the particular contents of a particular agreement. Mr Cameron does not challenge the common law tests upon which the Court based its decision so much as the conclusion it drew from them in relation to the Sanyo agreement. The issues raised in the question posed are similarly challenges to the Court’s interpretation of the agreement when applying those established principles of law.

[18] It was stated in Maika Soqononaivi v The State; [1999] FJCA 11; AAU0008.1997S, 12 February 1999:

“Generally speaking, it is not enough for an applicant to put forward a challenge to existing law already finally settled by long standing authority ...”

[19] Clearly the frequency with which cases on master and servant and employer and employee are brought in many jurisdictions suggest it would be extremely optimistic to suggest that it is finally settled law but that was not the issue in this appeal. The judgment from which leave is sought to appeal was the specific interpretation of the Sanyo agreement. There was no challenge apparently raised in, or answered by, the Court about the proper legal tests to be applied; only the effect of these tests on the terms of Sanyo’s agreement. The matters in issue in the High Court and the Court of Appeal were contractual in nature. Their meaning and significance depended on the facts of this particular case.

[20] The question to the Supreme Court seeks to establish the public importance of the interpretation of the agreement by suggesting it is similar to those used by many other taxi businesses in the country. Rishi Ram states that many have similar arrangements but we have no evidence of the degree or scope of any similarities. The judgment of the Court of Appeal does not deal with any other agreements and its conclusion is based solely on its interpretation of this specific agreement.

[21] In that lies the answer to the application. We accept counsel’s contention that many taxi proprietors operate under similar arrangements to those in Sanyo Cabs. No doubt, if their agreements with their drivers incorporate some of the same terms as in Sanyo’s agreement they will change them. Changed or unchanged, whether they are the same as the Sanyo agreement will be a matter of fact in each case and so the issue of whether they are, therefore, open to an interpretation that the drivers are employees or independent contractors or lessees of the vehicles will depend on the interpretation of each agreement on its own terms.

[22] The finding of the Court of Appeal in this case may be of considerable interest to other taxi proprietors in Fiji but the individual interpretation of the terms of Sanyo’s agreement with its drivers is not a matter of significance beyond the applicant and his drivers.

[23] The application to certify the question as one of significant public importance is refused.

[24] We do not in that event need to deal with the application to apply out of time. However, we heard the arguments of counsel and would state that, had we considered this question should be certified in accordance with section 122 (2), we would have given leave to appeal out of time.

Order

Application refused with costs of $500.

WARD, PRESIDENT

SMELLIE, JA

PENLINGTON, JA

Solicitors:

Maharaj Chandra & Associates for the Applicant

1^st Respondent no appearance

Solicitors-General for the second and third Respondents