State v Permanent Secretary for Labour & Industrial Relations, Ex parte Fiji Airline Pilots Association [1997] FJHC 139; Hbj0015j.1997s (24 September 1997)

Fiji Islands - The State v The Permanent Secretary for Labour & Industrial Relations; Ex parte Fiji Airline Pilots Association - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

JUDICIAL REVIEW NO. 0015 OF 1997

The State

v.

The Permanent Secretary
for Labour and Industrial Relations

ex-parte: Fiji Airline Pilots Association

Mr. B.C. Patel for the Applicant
Ms. N. Basawaiya for Permanent Secretary for Labour and Industrial Relations
Mr. R. Naidu fe Respondent Air Pacific

JUDGMENT

This is an application by the Fiji Airline Pilots Association (the 'Association') for leave to issue judicial review proceedings seeking an order of certiorari to quash a decision of the Permanent Secretary for Labour and Industrial Relations (the 'PSL') conveyed in a letter dated the 6th of May 1997 and addressed to the Chief Executive of Air Pacific Limited (the 'Company') in which he advised the Company as follows:

"I have accepted your report of a trade dispute (existing between the Company and the Association over the Company's 'Log of Claims') under the provision of paragraph (a) of subsection 1 of Section 4 of the Trade Disputes Act (Cap. 97) and in terms of paragraph (d) of the said Section have appointed Mr. A.S. Khan, Principal Labour Officer Industrial Relations to conciliate."

The Association has advanced no less than six (6) grounds upon which it seeks relief and these are conveniently compressed in counsel's written submission into the following:

"(a) The Permanent Secretary lacks jurisdiction to make the decision because the report submitted by the company did not create a 'trade dispute' as that term is defined in Section 2 of the Act; and

(b) In the absence of evidence of mistaken or other good cause for the delay or failure by the Company to report the 1994 dispute within one year of the date it arose, the Permanent Secretary failed to comply with provision (sic) to Section 4(1)(a) by accepting the report of the Company as a trade dispute."

The application is opposed by the Company on the ground that the 'PSL' had jurisdiction to accept the Company's report in so far as it was a 'trade dispute' within the definition of the term in the Trade Disputes Act (the 'Act').

Counsel for the Association began his submissions by referring to Section 34(1) of the Act which requires 'a copy of every collective agreement' to be registered with the PSL and subsection (7) provides that:

"The provisions of any such agreement shall be an implied condition of contract between every employee and employer to whom the agreement applies."

The purpose of such registration is 'two-fold' in counsel's submission:

"to give notice to the PSL of the terms of the collective agreement so as to enable the PSL to determine firstly whether a dispute has arisen under the collective agreement and secondly, whether the dispute is a trade dispute within the meaning of Section 2."

and counsel forcefully submits that 'Clause 5.2 of the (registered) collective agreement (between the Company and the Association) does not entitle the Company to file its own log of claims' and accordingly the Company's report is not and cannot be a 'trade dispute'.

In brief, counsel submits that since under its Collective Agreement with the Association, the Company has no right to submit a 'log of claims', as opposed to that conferred on the Association, therefore there can be no 'trade dispute' emanating from such non-existent right. In other words, the Association says it has no relevant or material 'dispute' or 'difference' with the Company 'connected with the terms and conditions of employment (of its members)', its 'dispute' relates to and is solely connected with the right of the Company to lodge its own 'log of claims'.

Counsel illustrated his argument by equating the PSL's acceptance of the Company's report of a trade dispute with the Court hearing or accepting a 'Counter-claim' in the absence of a Statement of Claim.

Counsel accepts however that in dealing with the Association's 'log of claims' as it is obliged to do under the Collective Agreement, the Company may make counter-proposals but that is quite a different matter from a 'log of claims' which might be considered an initiating document.

Counsel for the Company on the other hand, submits that the statutory definition of a 'trade dispute' is clear and there is no authority or need to import Section 34 of the Act or the terms of the Collective Agreement between the parties, so as to limit the definition or proscribe the statutory right of the Company to report a 'trade dispute'.

I agree with this submission and would only add that the definition of a 'trade dispute' under the Act makes no reference to a 'collective agreement'. Neither in my view, is the existence of such an agreement a pre-requisite to a 'trade dispute' nor are 'trade disputes' necessarily confined to disputes or disagreements that arise 'under a collective agreement' where one does exist between the employer and the trade union.

Furthermore counsel argues that Clauses 5.1 & 5.2 of the Collective Agreement do not expressly exclude the Company's right to lodge its own 'log of claims' which counsel submits is permitted by 'implication' but, in any event, the Company's 'log of claims' need not be considered by the Association until 'after the Collective Agreement between them expires' (whatever that might mean).

To complete the submissions received, a brief reference may be made to the submissions of counsel for the PSL. She referred to the 'wide discretion' conferred on the PSL in dealing with a report of a 'trade dispute'; the statutory 'right' of either an employer or a trade union to report a trade dispute to the PSL; the fact that the PSL in accepting the Company's report was appraised of and fully considered the Association's objections to the Company's report; and to the fact that the PSL is not a party to the Collective Agreement between the Company and the Association and could not therefore be fettered by its terms in the exercise of his statutory duty.

It is plainly necessary for the proper resolution of this application that the Court consider the relevant definitions and provisions of the Act as amended by the Trade Disputes Act (Amendment) Decree No. 27 of 1992 (the 'Amendment Decree').

That the Company as 'an employer', as well as the Association as a recognised trade union, has the statutory right to report a 'trade dispute' to the PSL cannot be doubted having regards to the clear wording of Section 3(1)(a) of the the 'Amendment Decree'.

The 'right to report' however, is in terms expressly limited to an 'existing or apprehended trade dispute'. In other words, it is not every or any 'dispute' or 'difference' between an employer and a recognised trade union that can be the subject-matter of a report to the PSL, rather, in order to be 'reportable' (to adopt a convenient term) the 'dispute' or 'difference' in question must be a 'trade dispute' as defined in the Amendment Decree as meaning (for present purposes):

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

In this regard the Company's letter of 14th April, 1997 to the PSL relevantly reads:

"2. This report is made by the Company.

The dispute has arisen as a consequence of the parties inability to reach agreement on the Company's Log of Claims dated 08 April, 1994 as well as the Company's further Log dated 21 and 24 January, 1997.

Negotiations between the two parties have been on-going since 26 April, 1994 and no settlement has been reached on the following issues:

.Composition of a three crew operation to change from the existing arrangement of two Captains and one First Officer to one Captain, one First Officer and one Second Officer;

.Hours of Work of pilots to be reviewed to better reflect the changing nature of the operation of the Airline and to ensure greater efficiency in the utilisation of pilots as follows:

-flying duty period for 3 crew from 14.5 hours to 15 hours;

-One hour automatic extension for 2 and 3 crew operations in the event of delay; and,

-maximum duty for 4 pilot crew to be 18 hours and extendable by the Company to 20 hours in cases of disruption;

.Class of duty travel to change from first class to business class;

.Second Officer Salary to be 50 percent of B737 1st year salary;

.In the event that no meal allowance is agreed to prior to the commencement of a new service, pilots to charge their meals at the respective lay over hotel until a satisfactory agreement is reached;

.Salary increases for pilots employed by the Company;"

There can be no-denying that the unsettled 'issues' enumerated in the Company's letter are all matters: 'connected with the employment, or with the terms of employment, or with the conditions of labour', of the pilots in its employ, so that if the 'dispute' or 'difference' between the parties was concerned with those 'issues' then, quite plainly, there would, by definition, be a reportable 'trade dispute' existing between the parties.

However, the Association's letters objecting to the Company's report dated 21 April, 1997 and 2nd May 1997 makes it sufficiently clear that it's 'dispute' with the Company is not concerned with the above 'issues' but rather "... that the Company has no right to lodge its own log of claims in terms of our master agreement" and, in doing so, the Company has sought to "propagate a dispute where none exists" and with a view "to have its log of claims accepted as a trade dispute so that such trade dispute could be simultaneously considered at the arbitration of the Association's (earlier accepted) trade dispute relating to its claims for the period 1 August 1990 to 31 July 1994."

Viewed in that light, the Association says that although there is undoubtedly a 'dispute' or 'difference' between the Company and itself, nevertheless, it is not 'reportable' since the 'dispute' or 'difference' is not one 'connected with the employment, or the terms of employment, or the condition of labour of any employee (of the Company)' and therefore is not, by definition, a 'trade dispute'.

Having carefully considered the various submissions placed before me and the relevant legislative provisions, I am firmly of the view that the Association's complaint in this instance boils down into a matter of semantics and is unmeritorious.

It appears from the correspondence and affidavits that the problem in this case has a history which dates back to the Association's 'log of claims' for the period 1 August 1990 to 31 July 1994 (the '1990/1994 log of claims') which was lodged with the Company sometime in early 1994 and to which, it seems, the Company countered with its own 'log of claims' dated 08 April 1994.

Thereafter it appears numerous meetings were held between the parties over a protracted period with little success culminating in the Association reporting a 'trade dispute' in respect of its '1990/94 log of claims' which the PSL accepted on 28 March 1996 and referred to arbitration.

The arbitration into the Association's '1990/94 log of claims' appears to have been forestalled by further unproductive meetings between the parties subsequent to the referral and the process became somewhat confused and complicated by the Association's lodgment of a further 'log of claims' for the period 1 August 1994 to 31 July 1997 (the '1994/97 log of claims') in its letter of 26th November 1996.

The 1994/97 'log of claims', the Association claims was lodged at the suggestion of the Chairman of the Board of the Company and the Company states was done in order 'to bring up to date its (the Association's) previous log'. In similar vein the Company countered with its own 'log of claims' dated 21 and 24 January, 1997 in order "to update that which was logged (by the Company) on 08 April 1994 and this was to be discussed concurrently with the Association's (updated) logs."

Three (3) meetings were convened thereafter and although there appears to be some disagreement as to what was discussed during the course of those meetings, there appears little doubt that no agreement was reached between the parties thus prompting the Company's report of 14 April 1997.

In my considered view time and the events that have occurred subsequent to the referral of the Association's '1990/94 log of claims' to arbitration in March 1996, have clearly overtaken the efficacy of continuing with that arbitration.

Too much water has now flowed under the bridge 'so-to-speak' that it would now be impossible and in my view undesirable that the parties should have to ignore their subsequent 'log of claims' that have effectively brought their dispute 'up-to-date' and I agree with the view of the Company's Director of Human Resources when he writes on 28th April, 1997:

"Both parties logs of claim should form the terms of reference of this arbitration as was done in the dispute with FAWA."

To seek to limit the present arbitration to the Association's and the Company's '1990/94 logs of Claim' and '(to) ignore all subsequent correspondence dealing with further log of claims by the Association and the Company' as suggested in the Association's letter of 2 May 1997 is both imprudent and artificial.

Such a course would not be conducive in the words of the Preamble to the Collective Agreement, to: 'cultivating a suitable industrial relations environment' between the parties, nor would it foster: 'the expeditious resolution of differences which might arise out of their employer/employee relationships'.

I can only hope that the parties as well as the PSL will bear in mind the Court's sentiments expressed above and that the present multiplicity of referrals and potential duplicity of issues to be resolved therein will be avoided in future proceedings.

The application for leave to issue judicial review proceedings is accordingly refused.

D.V. Fatiaki
JUDGE

At Suva,
24th September, 1997.

Hbj0015j.97s