Fiji Public Service Association v Public Service Commission [1992] FJHC 49; Hbc0216d.92s (28 October 1992)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. 216 OF 1992

Between:

1. FIJI PUBLIC SERVICE ASSOCIATION
2. FIJI TEACHERS UNION
Plaintiffs

- and -

1. PUBLIC SERVICE COMMISSION
2. THE ATTORNEY GENERAL OF FIJI
Defendants

Mr. H.M. Patel for the Plaintiffs
Mr. P. Cowey for the Defendants

RULING

This is an application under Order 18 r.18 of the High Court Rules seeking to strike out the plaintiffs' originating summons on the dual ground that it discloses no reasonable cause of action and is otherwise an abuse of the process of the Court.

In order to properly deal with the application it is necessary to consider the undisputed factual basis for the claim of the plaintiff trade unions which represent several thousand employees working in various ministries of the Government throughout Fiji.

It is undisputed that for sometime previously and up until the 24th of December 1991 the union dues of members of the plaintiff unions were required to be deducted at source and paid over to the respective unions by the relevant ministries in terms of Sections 12 and 13 of the Trade Unions (Recognition) Act Cap. 96A.

Then by Section 19 of the Trade Unions (Recognition) Act (Amendment) Decree No. 43 of 1991 which came into force on the 1st of November 1991 it was provided that:

"PART III - Recognised Trade Union Dues (Sections 12 to 15 inclusive) of the principal Act is hereby repealed:

Provided that any existing agreement for the payment of trade union dues shall continue to be in force until the expiry of the existing agreement or to the 1st of December, 1991 whichever date is earlier."

On the same date as the above Decree No. 43 of 1991 was made, the Minister concerned by Legal Notice No. 59 of 1991 made the Trade Unions (Deduction of Union Dues) Regulation 1991 (hereafter referred to as 'the Regulation') which so far as relevant provided that:

"A Union may enter into an agreement with an employer as to the method of deductions of union dues from its members ..."

I say at once that it is no part of this Court's function to seek to discover or determine the motivations and reasons behind the passing of the above statutory enactments. Certainly the matter is not an 'issue' in the present application and it would be inappropriate for this Court to make any observations on them in the absence of an answering affidavit from the defendants.

Having said that however undoubtedly the cumulative effect of the two enactments was to render (as from the 1st of December 1991) the deduction and payment of union dues no longer 'on demand' but a matter subject to negotiation and agreement between employers and trade unions.

In this latter regard the affidavits of the general secretaries of the 2 plaintiff unions contains relevant correspondence between the Public Service Commission and their respective trade unions.

Specific reference was made to the Memorandum of Agreement (Annexure 'I') submitted by the Public Service Commission for signature by the plaintiff trade unions and which included provision for a fee to be paid for the service provided in deducting and forwarding members union dues to the plaintiff trade unions but complaint was more particularly directed to the various 'undertakings' that were required to be given by the plaintiff trade unions and which are roundly denounced in the affidavits as:

"devastating clauses and conditions which will affect the very existence of the (plaintiff trade unions) to carry out any bargaining or negotiation of its members as a free and independent body in future."

Suffice it to say for present purposes that no "agreement" was reached between the parties to the present action with the result that as from the 24th of December 1991 the Public Service Commission ceased to make deductions from its employees' salary and wages of union dues payable to the plaintiff unions.

It was this cessation that prompted the present action by the plaintiff unions seeking the following two declarations: (the application for an order of Mandamus having been withdrawn by learned counsel for the plaintiff unions)

"1. A DECLARATION ORDER that the arbitrary cessation of deduction of Trade Union dues at source by the Government as employer of all the persons who are the members of the Fiji Public Service Association, Fiji Teachers Union, Fiji Nursing Association and Fijian Teachers Union were unreasonable, unfair and unwarranted.

2. A DECLARATION ORDER that the Government as employer shall deduct from the salaries of persons who are members of the Fiji Public Service Association, Fiji Teachers union, Fiji Nursing Association and Fijian Teachers Union the approved trade union dues specified by the Association subject to receipt of the information required under Regulation 2 of the Trade Unions (Deduction of Union Dues) Regulation 1991."

In my considered view neither of the 'declarations' as presently framed properly identifies the primary issues in this action which as presently advised I consider are of a political non-justiciable nature.

The first 'declaration' in effect requires this Court to declare that an employer which seeks to take advantage of the change effected in the law by the above 2 enactments may only do so if it is warranted and it acts reasonably and fairly not only in the timing of the cessation of deductions of union dues but also in the terms and conditions which it submits for negotiations.

In my view no such requirements are manifest or implied on a plain reading of the enactments nor has any authority been cited for reading such limitations into the enactments.

The second declaration in turn seeks an order to the effect that the Government as an employer of members of the plaintiff trade unions is obliged, upon receipt of the information required under the Regulation to deduct union dues.

If I may say so such a declaration blithely ignores the existence of the phrase "... may enter into any agreement ..." in the Regulation which clearly envisages a voluntarily negotiated enforceable agreement for valuable consideration.

With all due respect to learned counsel for the plaintiff trade unions this Court is not prepared to countenance a reading of the Regulation which not only ignores the above-mentioned phrase but additionally would tantamount to a reversal of the clear legislative intent behind the two enactments earlier described.

Needless to say it is the Court's view that the enactments impose no duty on either employers or trade unions to undertake negotiations nor, in the event that negotiations are held, are they required to conclude any agreement for the deduction of union dues.

I turn next to consider the principles that guide a Court on an application such as the present. In that regard some guidance may be obtained from the decision of the Fiji Court of Appeal in Attorney General v. Halka 18 F.L.R. 210 which was referred to by counsel for the plaintiff unions and which:

"Held: 2. The Power to strike out ... given by Order 18 r.19 is one which is to be sparingly used and is not appropriate to cases involving difficult and complicated questions of law ..."

but the exercise of caution in the use of the Court's power does not mean that the jurisdiction is necessarily reserved for the plain and obvious case.

In my view the power may also be exercised even when extensive argument is necessary to demonstrate that the plaintiff's case is so clearly untenable that it could not possibly succeed.

Before I take leave of the decision in Halka's case (op. cit) I note that it was also decided in that case that the Public Service Commission (which was named as the original defendant in that case as well as in this action) was not a legal entity and could not be sued in its own name and accordingly its name was struck out. More relevantly Gould V.P. observed at p.215 (ibid):

"The learned Judge in the Supreme Court held that the Commission was not a legal entity and could not be sued in its own name. With this I would respectively agree, though it could well be that the provisions of Section 136 of the Constitution of Fiji would enable it to be made the subject of certiorari or other prerogative proceedings. This, however is an ordinary writ claiming declarations and damages."

(my underlining)

After having carefully considered the submissions of learned counsel for the plaintiff unions (who at a late stage in his submissions attempted to seek the Court's leave to amend the original declarations sought) and the relevant enactments and affidavit evidence I have little hesitation in concluding that the declarations sought are demonstrably untenable and could not possibly succeed. The plaintiffs' motion is accordingly dismissed as disclosing no reasonable cause of action.

In the circumstances there is no need for this Court to examine that line of recent authorities cited by learned counsel for the defendants which contains dicta to the effect that "... it would ... as a general rule be contrary to public policy, and as such an abuse of the process of the Court, to permit a person seeking to establish that a decision of a public authority infringed rights to which he was entitled to protection under public law to proceed by way of an ordinary action and by this means to evade the provisions of Order 53 for the protection of such authorities" [per Diplock L.J. in O'Reilly v. Mackman [1983] UKHL 1; (1983) 2 A.C. 237 at p.285].

(D.V. Fatiaki)
JUDGE

At Suva,
28th October, 1992.

Hbc0216d.92s