State v Permanent Arbitrator, Ex parte Fiji Electricity Authority [1997] FJHC 72; HBJ0001d.1997s (12 June 1997)

Fiji Islands - The State v The Permanent Arbitrator, Ex parte Fiji Electricity Authority - Pacific Law Materials

IN THE HIGH COURT OF FIJI

At Suva

Civil Jurisdiction

JUDICIAL REVIEW NO. OF 1997 1997

The State /p>

nter>v.

The Permanent Arbitrator

ex-parte

Fiji Electricity Authority

Mr. A. Patel for the Applicant
Mr. S. Kumar for the Permanent Arbitrator
Mr. V. Naidu and Mr. J. Udit for the Union

RULING

This is an opposed application for leave to issue 'judicial review' proceedings against an Award No. 12 of 1996 of the Permanent Arbitrator delivered on the 11th of October 1996.

It concerns a 'trade dispute' between the Fiji Electricity and Allied Workers Union ('the Union') and the Fiji Electricity Authority ('the Authority') which had been referred 'for settlement', by the Permanent Secretary for Labour and Industrial Relations ('the Permanent Secretary') acting pursuant to Section 5A subsection 5(a) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992 ('The Decree').

It is undisputed that the trade dispute arose over the dismissal of nine (9) apprentices who had completed their five year contracts of apprenticeship with the Authority. It is also common ground that the successful completion of the contracts of apprenticeship occurred at different times and termination by the Authority occurred several months after such completion. Furthermore although none of the apprentices were permanent employees of the Authority, all were members of the Union at all relevant times.

The dispute was primarily concerned with the 'status' of the apprentices during the period between the successful completion of their respective contracts of apprenticeship and their termination by the Authority. The 'periods' with which the Permanent Arbitrator was concerned with were: slightly over 3 months in the case of 1 apprentice; over 5 months in the case of another apprentice; and over 7 months for the remaining seven (7) apprentices.

The 'terms of reference' by the Permanent Secretary generally:

"... (referred) the said trade dispute to the Permanent Arbitrator over the employer's action to terminate (the) employment of Union members who had successfully served their apprenticeship contract and had been in employment beyond their 3 months probationary period for settlement."

At the hearing of the reference the Permanent Arbitrator received preliminary submissions from the Union and the Authority and thereafter evidence was produced by the parties and comprehensive final submissions were provided.

The Authority's position is conveniently summarised in the following paragraph taken from p.3 of the Permanent Arbitrator's decision which reads:

"The Authority has adopted the position that the provision relating to apprentices ... allowed an apprentice's term of employment to continue while the Authority came to a decision. There was no mandatory obligation on the Authority to provide permanent employment. Further there was a discretion as to whether to upgrade and absorb ("it will consider") apprentices as permanent employees. Clause 12 had to be interpreted in the light of an apprentice's contract coming to an end and the subsequent contract conferring 'permanent employee status' then taking effect upon the Authority exercising its discretion to offer an apprentice a permanent position."

The Union on the other hand contended in its final written submission:

"... that the termination of employees was unfair, and wrong, and that they be reinstated as tradesman with full wages and benefits."

This position which is ostensibly based on 'custom and practice over many years', is somewhat akin to confirmed permanent employment upon successful completion of contract of apprenticeship.

In a closely reasoned 8-page decision delivered by the Permanent Arbitrator he ruled:

"that the Authority's decision to terminate the employment of union members who had successfully served their apprenticeship contract and the three month probationary period under the parties collective agreement was contrary to its terms and the said members are to be compensated at tradesman's rates with effect from the respective dates on which the said probationary period expired (as calculated from the formal completion of their respective apprenticeships) to the date of this award but there will be no order for reinstatements."

In its application for leave to issue 'judicial review' the Authority has advanced no less than six (6) 'grounds' on which it claims the Permanent Arbitrator erred. These are:

"(a) the learned first respondent acted ultra vires the provisions of the Trades Disputes Act.

(b) the learned first respondent had not exercised his discretion judicially having regard to the relevant circumstances.

(c) the learned first respondent took irrelevant matters into account when exercising his discretion.

(d) the learned first respondent did not take relevant matters into account when exercising his discretion.

(e) the learned first respondent's said award was made beyond his jurisdiction.

(f) that there is an error of law on the face of the record."

I must confess that in the absence of particulars or any details in the supporting affidavit, the 'grounds' as drafted, are of little or no assistance in directing the Court's attention to any prima facie vitiating error that may have occurred either in the course of the hearing of the reference or in the actual award of the Permanent Arbitrator.

It might very well be that all of the 'grounds' advanced are recognised as good and sufficient grounds to warrant the grant of a 'prerogative writ', but that alone is no reason to indiscriminately advance them all in an application for 'judicial review', unless of course, they are clearly evidenced in the supporting affidavit or demonstrated by counsel's submissions. This form of 'pleading' (for want of a better expression) which is fast becoming the norm in applications for 'judicial review' is unacceptable, unhelpful and often duplicitous. For instance, what is the difference (if any) between grounds (a), (b) & (e)? and between grounds (b) & (d)?, and what 'irrelevant matters' did the Permanent Arbitrator take into account?

Indeed when the application for leave was argued before me in chambers, counsel for the applicant, without referring specifically to any of the above 'grounds', merely stated that the Permanent Arbitrator's award contained an 'illegality' and was also 'irrational' in a 'Wednesbury' sense. The 'error of law' was said to arise in the Permanent Arbitrator's reference to other general clauses in interpreting Clause 12 of the Collective Agreement.

In R. v. IRC exp. Fed. of Self-Employed [1981] UKHL 2; (1982) A.C. 617, Lord Diplock said at p.642, 643:

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

In this regard Order 54 r.3(5) of the High Court Rules requires the Court in exercising its discretion at this 'threshold stage' to direct its mind "(to) ... the materials then available (to see whether) it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed". (ibid at p.644)

This necessarily implies a corresponding duty on counsels not only to draft their 'grounds' with particularity out also, to ensure that there is some supporting affidavit evidence to enable the Court to form on the papers, a prima facie view favourable to the applicant seeking leave. Needless to say in the absence of such 'materials' the Court is constrained to order an inter partes hearing of the application for leave as occurred in this case.

Having regard to the above it is not at all surprising that the application for leave was vigorously opposed by counsels for the Permanent Arbitrator as well as the Union. More particularly State Counsel submitted that the application raised no arguable case for a 'judicial review' and was a 'disguised appeal' against a decision which, in terms of Section 5A subsection 5(b) of the Decree, "... shall be binding on the parties to the dispute".

As for the so-called 'error of law', State Counsel submitted that the Permanent Arbitrator's 'terms of reference' required him to examine more than just Clause 12 of the Collective Agreement insofar as the reference to a 'probationary period' necessarily entailed an examination of Clause 6(c). Furthermore Clause 12 itself contained a 'lacuna' insofar as there is no time-frame provided, within which the Authority is obliged to 'consider upgrading and absorbing (qualified apprentices) as permanent employees'.

How then, counsel forcefully argues, can it be said that the Permanent Arbitrator's fixing of a limitation period within which the Authority must make a decision to permanently employ or terminate its qualified apprentices, is either 'illegal', 'irrational' or 'unreasonable'? and how can the adoption of '3 months' which is the length of the 'probationary period' provided for in Clause 6(c) of the Collective Agreement, be considered either 'arbitrary', 'irrelevant', or 'ultra vires'?

Furthermore the Permanent Arbitrator has himself provided reasons in his decision for filling the 'lacuna' and for his choice of '3 months', where he writes at p.4:

"The Tribunal has some doubts about the Authority's approach. It confers all the advantages on the Authority and makes little attempt to harmonise both the provisions of the apprenticeship contract with the collective agreement and provisions within the collective agreement itself."

later at p.5 he states:

"Furthermore the Authority omitted to explain the relationship between Clause 6(c) and Clause 12. The latter makes reference to the Authority giving consideration to upgrading and absorbing them (i.e. qualified apprentice's) as permanent employees. If one were to give effect to Clause 6(c) on the basis that the apprentices were now fully-qualified, the three months probationary period provided the time in which the Authority had to decide on their future. This would be sufficient response to the Authority's assertion that the time it had under Clause 12 was open-ended."

Then finally and again at p.5 the Permanent Arbitrator states:

"The apprenticeship contract and the terms of the collective agreement co-exist quite happily, if the probationary period under the latter (i.e. the 3 months) is treated as the time the Authority has in which to make up its mind over the apprentice's fate. Otherwise it becomes an open-ended arrangement which favours the Authority and allows it to dispense with the apprentices at its own convenience. An unacceptable situation because the Authority would have had the benefit of the apprentice's expertise at a fraction of the cost ... The advantage of this interpretation is that it allows effect to be given to that part of Clause 12 which confers discretion (and by implication time) upon the Authority to make a decision."

For his part counsel for the applicant could only state in reply, that the Permanent Arbitrator's award had the effect of imposing remuneration rates payable to permanent employees in circumstances where the Authority had under Clause 12 of the Collective Agreement, no obligation to provide permanent employment to the employees concerned.

But as the learned Permanent Arbitrator said at p.7 of his decision:

"The simple answer to that is that some sense has to be made of the situation where the apprenticeship contract persists by implication, a probationary period (of 3 months) now applies and the Authority has some time in which to determine if the apprentices are to be given permanent employment. This last aspect adequately explains why it is appropriate the apprentices were to be paid at that level for those three months."

For the foregoing reasons the application for leave to issue an application for 'judicial review' against the Permanent Arbitrator's Award No. 12 of 1996 is refused with costs to be taxed if not agreed.

D.V. Fatiaki
JUDGE

At Suva,
12th June, 1997.

Hbj0001d.97s