State v Arbitration Tribunal, Ex parte National Union of Factory & Commercial Workers [1996] FJHC 155; Hbj0017d.1995s (14 November 1996)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 0017 OF 1995

THE STATE

v.

THE ARBITRATION TRIBUNAL

ex-parte

NATIONAL UNION OF FACTORY AND
COMMERCIAL WORKERS

Mr. R.P. Singh for National Union of Factory and
Commercial Workers
Mr. S. Lateef for Carpenters Fiji Limited

RULING

This opposed application for leave to issue judicial review proceedings arises out of the referral of a 'trade dispute' concerning the proposed involuntary retirement of several employees of Carpenters IMEL/Carpenters Morris Hedstrom ('the employers').

Although the papers filed are not entirely clear on the matter it appears that the applicant Union of which the proposed retirees are members, registered a dispute with the Permanent Secretary for Labour which was then referred by him to arbitration by the Permanent Arbitrator.

On the 26th of May, 1995 the arbitration Tribunal delivered a three (3) page Preliminary Ruling in which it upheld a 'preliminary issue' raised by counsel for the respondent employers concerning a 'side-agreement' which the Tribunal held was valid and binding on the parties to the dispute thereby resulting in there being "... no dispute before the Tribunal for determination".

The applicant Union, not satisfied with the ruling, sought by application dated 18th June 1995, leave to issue judicial review proceedings challenging the Tribunal's ruling on various well-known grounds including:

"(1) That it took into consideration irrelevant matters; and

(2) It did not take into consideration relevant matters; and

(3) It acted unreasonably, arbitrarily or in bad faith;"

No attempt whatsoever was made to particularise or expand on these grounds either in the affidavit of the applicant Union's General Secretary or in counsel's oral submissions.

Indeed the application was not served on the office of the arbitration Tribunal or the Attorney-General's Chambers and as a result the Court has been denied the opportunity of hearing those relevant parties, but more seriously, the Tribunal's record of the arbitration proceedings is not available for the perusal of the Court.

Be that as it may, the application for leave is opposed by the employers who appeared by counsel. In opposing the application counsel stated (without contradiction) from the bar table that the arbitration Tribunal had before it written submissions and relevant annexures from both the applicant Union and the employers and was more than adequately equipped to determine the 'preliminary issue' which effectively disposed of the referred dispute.

In this latter regard I note that the Tribunal's terms of reference were "... for settlement over the proposed termination of employment of (named employees) on grounds of retirement." Furthermore the 'side agreement' the subject matter of the 'preliminary issue' is contained within a letter dated 2nd April 1976 written by the employer's Divisional Manager (Personnel) to the General Secretary of the applicant Union and sets out in comprehensive detail a 'Retirement Procedure and Benefit Scheme' agreed between the employers and the applicant Union.

It is noteworthy that the agreed Retirement Procedure makes provision for-compulsory retirement at 60 years; voluntary retirement at 55 years; involuntary retirement 'for cause' at 55 years; and involuntary retirement where an employee has withdrawn his F.N.P.F. benefits.

The affidavits do not disclose the particular nature of the dispute that had arisen between the applicant Union and the employers nor is it entirely clear which limb of the 'retirement procedure' was being invoked by the employers in retiring its employees.

It might be that it was a case of involuntary retirement 'for cause' and a dispute has arisen between the applicant Union and the employers as to 'the cause' or reason(s) given by the employers for the termination, but whatever it may be, the applicant Union and its advisors have only themselves to blame for the inadequacy of their papers.

In this latter regard in the leading case of Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1947) 1 ALL E.R. 680, Lord Greene M.R. said at p.682:

"The Court's can only interfere with an act of an executive authority if it be shown that the authority contravened the law. It is for those who assert that the local authority have contravened the law to establish that proposition ... It is not to be assumed prima facie that responsible bodies like local authorities will exceed their powers, and the court, ..., must not substitute itself for the local authority ... It must always be remembered that the Court is not a court of appeal."

(my underlining)

The court's difficulty was not allieviated by counsel for the applicant Union's bald unsubstantiated submission that there were 'factual issues and differences' between the parties that needed to be determined by the arbitration Tribunal which was not resolved because of the Tribunal's pre-emptive ruling on the 'preliminary issue'.

What those unresolved 'factual issues' are or were? is nowhere disclosed in the applicant's affidavits nor is it even clear (as one might be entitled at the very least to expect) whether the referral of the dispute to arbitration was a contractual matter, or a voluntary submission by the parties under the Arbitration Act (Cap. 38), or a compulsory referral in terms of the Trade Disputes Act (Cap. 97)? although references to various provisions of the latter Act in the Tribunal's ruling tends to suggest that the referral may have been under the Trade Disputes Act.

In I.R.C. v. National Federation of Self-Employee and Small Businesses Ltd. [1981] UKHL 2; (1981) 2 ALL E.R. 93 Lord Diplock said of the requirement to seek leave in judicial review proceedings at p.105:

"The procedure under Or. 53 involves two stages: (1) the application for leave to apply for judicial review, and (2) if leave is granted, the hearing of the application itself. The former, or threshold stage is regulated by r.3. ... Rule 3(5) specifically requires the court to consider ... whether it considers that the applicant has a sufficient interest in the matter to which the application relates. So this is a 'threshold' question in the sense that the court must direct its mind to it and form a prima facie view about it on the material that is available at the first stage ...

The need for leave to start proceedings for remedies in public law is not new ... Its purpose is to prevent the time of the court being wasted by busybodies with misguided or trivial complaints of administrative error, and to remove the uncertainty in which public officers and authorities might be left whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived."

In this case the mere fact that the applicant Union was a losing party to the arbitration proceedings and therefore may be said to be aggrieved by the decision, does not necessarily mean that leave to issue judicial review proceedings will inevitably be granted, in addition the applicant must produce or place some material before the Court so as to satisfy it that a prima facie case of error has been made out for the issuance of judicial review proceedings against the public official or authority concerned.

There is no doubting that the arbitration Tribunal set up under the Trade Disputes Act is amenable to judicial review but in the absence of some demonstrated reviewable error in its conduct of the arbitration or in its decision, the parties in my view are bound by the terms of its award (See: Section 6(3) Trade Disputes Act).

Furthermore, given that the Tribunal has a statutory duty under Section 23 of the Trade Disputes Act to act with some expedition in rendering its decisions, the words of Lord Denning M.R. are apposite when he said in Secretary of State for Employment v. Associated Society of Locomotive Engineers (No.2) (1972) 2 ALL E.R. 949 at p.969:

"... this is an emergency procedure. It has to be set in motion quickly, when there is no time for minute analysis of facts or of law. The whole process would be made of no effect if the ... decision was afterwards to be conned over word by word, letter by letter, to see if he has in any way misdirected himself. That cannot be right."

Learned Counsel for the employers in opposing the grant of leave highlighted the fact that the parties to the arbitration were represented by legal counsels as well as senior officials, and written submissions together with relevant annexures were provided by both sides to the tribunal which considered these materials before making its award.

Furthermore the 'preliminary issue' determined by the Tribunal in its award was a straightforward 'legal issue', namely, whether or not a 'side agreement' entered into by the parties and dealing inter alia with the involuntary retirement of employees (the subject matter of the dispute), was binding on the parties despite it not being registered in terms of Section 34 of the Trade Disputes Act.

In this latter regard the statutory definition of a 'collective agreement' is wide enough in my view, to encompass the 'side agreement' entered into between the applicant Union and the employers, furthermore Section 34(3) imposes on both parties a statutory duty to lodge with the Permanent Secretary within 28 days, any 'collective agreement' entered into by the parties. It was not the duty of the employers alone as appears to have been suggested, but in any event, Section 34(10) of the Trade Disputes Act (as amended by Section 10 of the Trade Disputes Act (Amendment) Decree No. 27 of 1992) makes it clear beyond doubt (that):

"A collective agreement shall not be invalidated by reason only that it has not been stamped."

In light of the rather limited and narrow ambit of the legal issue involved in the Tribunal's ruling, the applicant Union bears an onerous burden in seeking to establish a prima facie question for judicial review.

Quite plainly, on the materials provided by the applicant Union, this Court is wholly unable to reach a prima facie decision as to the 'threshold question'. Indeed, to grant leave in the present case, given the almost complete lack of details, would tantamount in counsel for the employers submission, to giving the applicant Union a 'right of appeal' against the Tribunal's award which it clearly does not possess.

Leave is accordingly refused and the application is dismissed.

(D.V. Fatiaki)
JUDGE

At Suva,
14th November, 1996.

HBJ0017D.95S