State v Acting Permanent Secretary for Labour & Industrial Relations, Ex parte Carpenters Fiji Ltd [1996] FJHC 156; Hbj0005j.1995s (15 November 1996)

IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

JUDICIAL REVIEW NO. 0005 OF 1995

THE STATE

v.

THE ACTING PERMANENT
SECRETARY FOR LABOUR AND INDUSTRIAL
RELATIONS

ex-parte

CARPENTERS FIJI LIMITED

Mr. H. Lateef for Applicant
Mr. I.W. Jauro for Respondent

JUDGMENT

On the 11th of April 1995 this Court granted the applicant company leave to apply for judicial review of a decision of the Acting Permanent Secretary for Labour and Industrial Relations (the 'PSL') taken on the 4th of November 1994 accepting a 'trade dispute' reported by the National Union of Factory and Commercial Workers (the 'Union') and which related to a change of working hours unilaterally imposed by a subsidiary of the applicant company, namely, Carpenters Builders Merchants, upon its employees.

In tabular form the time changes were:

Hours of Work: (before changes)

Mon-Thurs 8.00 a.m. - 4.30 p.m. (1/2 hr. lunch)

Friday 8.00 a.m. - 3.45 p.m. (1/2 hr. lunch)

Saturday 8.00 a.m. - 12 p.m.

Hours of Work: (after changes)

Mon-Thurs 8.00 a.m. - 5.00 p.m. (3/4 hr. lunch)

Friday 8.00 a.m. - 4.30 p.m. (3/4 hr. lunch)

Saturday 8.00 a.m. - 12 p.m.

In summary the changes required employees to finish work during the week 30 minutes later than before and to take a longer lunch break (15 minutes). The end result was that employees were required to work an extra one and a half hours per week.

Following the change the Union reported a 'trade dispute' to the PSL by letter dated 20th September 1994 and this was accepted in a letter of the PSL dated 4th November 1994 which also referred the dispute to a Disputes Committee in terms of Section 5A(1) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992 for a decision (the 'Amendment Decree').

On 16th November 1994 an official of the applicant company objected to the referral on the ground that the particular dispute was a 'dispute of interest' and not a 'dispute of rights' and therefore not referable to a Disputes Committee in terms of Section 5A(1) of the Amendment Decree. The applicant's objection was rejected by letter of the PSL dated 30th December 1994.

On 11th January 1995 solicitor's acting for the applicant company raised the same objection in a letter to the PSL who, after obtaining the advice of the Solicitor-General's Department, maintained his stance and advised that he was 'referring the dispute to the Permanent Arbitrator for adjudication'. On 13th March 1995 the present application was filed. So much then for the background.

In its application for judicial review the applicant company seeks an order of certiorari and a declaration that the PSL:

"exceeded his jurisdiction and/or made an error of law in accepting the dispute as a dispute of rights."

It is convenient at this stage to refer to various undisputed matters that appears from the affidavits and annexures filed by the parties. These are:

(1) The Union is a trade union recognised under the Trade Union (Recognition) Act (Cap. 96A);

(2) There is in existence between the Union and the applicant company a valid 'Collective Agreement' dated 11th May 1992 which has been registered with the PSL in accordance with the provisions of Section 34 of the Trade Disputes Act (Cap. 97);

(3) The 'Collective Agreement' covers all hourly paid employees of the applicant company below the position of supervisor or foreman and deals with: "matter relating to the engagement, promotion or dismissal of employees in respect of all matters pertaining to the wages paid to such employees, and their conditions of employment".

and

(4) The 'Collective Agreement' does not set out in any detail the working hours of the employees covered under it although there are numerous references in the agreement to 'normal working hours'; 'a normal working day'; 'working hours'; 'normal hours of work'; and 'over-time work'.

Counsel for the applicant company's simple submission, in the absence of any laid down 'working hours' in the collective agreement, is that any dispute occasioned by the unilateral change of working hours by the applicant company is a 'dispute of interests' insofar as it is a dispute concerning 'new matters' that significantly affects the terms and conditions of employees covered under the collective agreement.

The respondent's submission on the other hand is equally simple, in that it states, the provisions of the collective agreement strongly supports the not unreasonable inference that there is already a well understood or implied 'normal' working time span or schedule of normal working hours for employees, and, therefore, any alteration in those 'normal' working hours is not a dispute over 'new matter' as such, but one that concerns "... the interpretation, application or operation of a collective agreement ..." which, by definition, is a 'dispute of rights'.

In seeking to resolve this difference of interpretations it is necessary to refer to several relevant definitions and provisions of the Amendment Decree which came into effect on the 1st of May 1992. The definitions in alphabetical order are:

'collective agreement' means any agreement:

(a) that is made by a trade union of employees recognised under the Trade Unions (Recognition) Act and an employer ...; and

(b) prescribes (wholly or in part) the terms and conditions of employment of employees of one or more description or a procedure agreement or both;

'dispute of interest' means a dispute created with intent to procure a collective agreement defined under this Act and includes a dispute created with intent to procure a collective agreement or amendment to settle a new matter as defined under this Act;

'dispute of rights' means (a) a dispute concerning the interpretation, application or operation of a collective agreement; or (b) any dispute that is not a dispute or interest, including any dispute that arises during the currency of a collective agreement;

'new matter' means a matter decided by the Permanent Secretary to be a matter or matters in relation to any award or collective agreement significantly affecting the terms and conditions of employees covered by the said award or collective agreement;

'trade dispute' means any dispute or difference between any employer and a trade union recognised under the Trade Unions (Recognition) Act ... connected with the employment or with the terms of employment, or with the conditions of labour, of any employee.

The relevant provisions of the Amendment Decree in numerical order are:

Section 3(1) which provides:

"Any trade dispute whether existing or apprehended may be reported to the Permanent Secretary by:

(b) a trade union of employees recognised under the provision of the Trade Union (Recognition) Act which is a party to the dispute."

Section 4(1) which provides:

"The Permanent Secretary shall consider any trade dispute of which he has taken cognisance and may ...

(d) appoint any person (who may be a public officer or any other person considered by him to be suitable) to act as a mediator and conciliator where the trade dispute is a dispute of interests;

(h) refer the trade dispute to a Dispute Committee, where such dispute is a 'dispute of rights'";

and

Section 5A(1) which provides:

"The Permanent Secretary shall refer a dispute of rights to a Disputes Committee for settlement."

It will be evident from the above provisions of the Amendment Decree that several material changes and alterations were made to the Trade Disputes Act (Cap. 97) including the following:

(1) the introduction of a new and shorter definition of what a 'trade dispute' means which included reference to the Trade Unions (Recognition) Act and which was described by Scott J. in State v. Acting Permanent Secretary for Labour ex-parte S.C.C. J.R. No. 10 of 1993 as "... rather poorly drafted";

(2) a new classification of disputes into 'disputes of interest' or 'disputes of rights' with a concomitant separation in the statutory procedures available to the PSL for their resolution or settlement;

(3) the creation of a Disputes Committee to deal specifically with 'disputes of rights';

(4) the introduction of a secret ballot requirement for the validity of strikes authorised or endorsed by a trade union(s); and

(5) a new definition of 'parties' to a trade dispute and the permissible representation of such parties in any proceedings under the Act.

It is common ground that a 'trade dispute' exists between the parties in this case and that there has been no error on the PSL's part in accepting the Unions report. The parties differ however, on his classification of the dispute as exemplified by the particular procedure he has chosen to resolve it i.e. by referring it to a Disputes Committee.

I am grateful for the careful and well thoughtout submissions of both counsels in this case which clearly and succinctly advanced their respective interpretations and which has considerably assisted me in my deliberations.

Suffice it to say that having carefully considered the respective submissions and the various provisions of the Amendment Decree I am firmly of the view that the submissions of learned counsel for the applicant company is to be preferred for the following reasons:

(1) The submissions of counsel for the PSL completely ignores the definition of 'new matter' and treats the subject-matter of the dispute as if the working hours of the applicant company's employees were already fixed and recorded in the collective agreement when in fact they are not.

Whatsmore, the 'novelty' of the subject matter of a reported trade dispute is not only to be judged by the presence or absence of any reference to it in a collective agreement (however vague), but rather by the extent to which it affects the terms and conditions of employees covered by the collective agreement.

In this latter regard it need hardly be said that the unilateral alteration of the working hours of day-workers by the company was considered by the Union to be sufficiently 'significant' to warrant the reporting of a trade-dispute to the PSL who further endorsed it by accepting the report;

(2) The submission also ignores the fact that the collective agreement covers several classes and categories of workers including, in particular, 'Watchmen' whose 'normal working hours' would be expected to be quite different from ordinary 'day-workers'.

Furthermore, the collective agreement clearly envisages and specifically provides in Clause 24 an allowance for "... employees who are required by virtue of their duties to work on a regular two or three rotating shift system for normal shift hours worked", which again is to be clearly distinguished from normal day-workers.

Given the above it is not at all surprising to find no specific 'hours of work' being laid down in the collective agreement, nor, in my view do vague references to 'normal hours' greatly assist in that regard for what is 'normal working hours' to one class of employee may be quite 'abnormal' to another;

(3) Counsel for the PSL's submission although properly confined to a particular change in working hours, if accepted, is likely to give rise to a piecemeal approach to resolving this perceived 'lacuna' in the collective agreement rather than resolving the matter once and for all in respect of each class or category of employee by an appropriately negotiated and agreed 'amendment' to the collective agreement setting out the 'normal working hours' for each class of employee and included in a schedule to the agreement;

(4) The submission in laying undue emphasis on the 'operation' and 'currency' of a collective agreement (both expressions to be found in the definition of a 'dispute of rights') fails to recognise that the 'amendment' of an existing collective agreement is, by definition, a 'dispute of interest'. Quite plainly the mere existence of a collective agreement can not be a determining factor in identifying the nature of the trade dispute that is reported to the PSL;

and

(5) The various letters of the PSL also displays some confusion in his understanding of the effect of the Amendment Decree in so far as by letter dated 4th November 1994 he referred the dispute 'to a Disputes Committee'; then by letter dated 30th December 1994 it was referred 'to arbitration'; and finally, by letter dated 15th February 1995 the dispute was referred 'to the Permanent Arbitrator for adjudication'.

For the foregoing reasons I am satisfied that the PSL mis-directed himself in law in various significant respects in determining that the reported trade dispute was a 'dispute of rights' and accordingly his decision to refer the dispute to a Disputes Committee is formally quashed.

The applicant company having succeeded in this application is awarded costs to be taxed if not agreed.

(D.V. Fatiaki)
JUDGE

At Suva,
15th November, 1996.

HBJ0005J.95S