BETWEEN:
FIJI SUGAR AND GENERAL WORKERS UNION
Appellant
AND:
THE FIJI SUGAR CORPORATION LIMITED
Respondent
/p>
Mr. H. Nagin for the Appellant
Mr. B. Sweetman for the Respondent
DECISION
The undisputed background to this appeal is conveniently summarised in the written submissions presented before the Sugar Industry Tribunal by the Fiji Sugar and General Workers Union and which, subject to a slight adaptation and renumbering, is set out below:
"1. The Fiji Sugar Tradesmen Union and the FSC concluded a Memorandum of Agreement dated 23rd June 1995 on the Unions Log of
Claims for the period 1st August 1994 - 30th September 1995. The parties agreed to a 2% wage increase for the period.
2. The Fiji Sugar Clerks and Supervisors Association and FSC concluded a Memorandum of Agreement dated 18th July 1995 on the Unions
Log of Claims for the period 1st August 1994 to 30th September 1995. The wage increase agreed to by the parties was 2%.
3. The Sugar Milling Staff Officers Association and FSC concluded a Memorandum of Agreement dated 21st July 1995 on the Unions Log
of Claims for the period 1st August 1994 - 30th September 1996. The parties agreed to a wage increase of 2% for a two year period.
4. Fiji Sugar and General Workers Union disagreed with the offer made as it considered the offer of a same percentage to all employees
would be grossly unfair and disadvantages to General Employees.
5. The matter was referred to the Sugar Industry Tribunal and a 3.5% increase was awarded to General Employees apart from other benefits.
6. FSC than decided to give additional increase of 1.5% to the Tradesman, Clerks and Staff effective 1st August 1994 and a general
increase to Staff for the period commencing 1st August 1995 consistent with what other employees were to be granted. This was decided
upon after the Tribunals award to grant a 3.5% increase to General Employees.
7. The Corporation further granted a 1.5% FNPF supplementation and 2.5% supplementation in line with the General Employees to Tradesmen
and Clerks. The Staff continue to enjoy FNPF supplementation of 3% and 5% for 15 and 20 years of service respectively.
8. The Union sought the additional increase of 1.5% wage increase consistent with what was granted to other category of employees.9. The Corporation responded stating its actions were fair and reasonable and that all categories were now to receive 3.5% wage increase."
By a Certificate of Dispute dated the 8th day of February, 1996 the Industrial Commissioner acting pursuant to Section 104 of the Sugar Industry Act (Cap. 206) ('the Act') referred an industrial dispute between the Fiji Sugar Corporation ('the Corporation') and the Fiji Sugar and General Workers Union ('the Union') to the Sugar Industry Tribunal ('the Tribunal') for determination.
The dispute is certified in the following terms:
"It is claimed by the Union that - By granting all other categories of employees (except general employees) 1.5% wage increase
across the board in addition to the wage settlement (agreement) for 1994 the Corporation has discriminated and nullified the adjustment
in wage increase granted to general employees in Award No. 2 of 1994."
and 'the Union' claims a similar adjustment for its members with effect from 1st August 1994.
After the referral the Tribunal ordered written submissions from the parties and these were finally concluded in January 1997. Thereafter in a 3-page Decision delivered on the 21st of March 1997, the Tribunal declined 'the Unions' application and found in favour of 'the Corporation'.
By a Notice of Appeal filed on the 7th April, 1997 the Union seeks to appeal against the Tribunal's decision on the following six (6) grounds:
"1. THAT the Learned Sugar Industry Tribunal erred in law in holding that the 3.5 per cent award in Award No. 2 of 1995 was out of kilter
with the trends established between 1986 - 1995.
2. THAT the Learned Sugar Industry Tribunal erred in law in holding that there was an informal understanding that increases in salary granted
to one union would apply across the board to the other unions in the sugar industry.
3. THAT the Learned Sugar Industry erred in law in holding that if the Appellant's claim was allowed there would be a further cycle of consequential
increases.
4. THAT the Learned Sugar Industry Tribunal erred in law in considering that the Respondent is disadvantaged by its inability to pass on
costs to the consumer because the price of sugar is determined elsewhere.
5. THAT the Learned Sugar Industry Tribunal erred in law in conceding that the basis for the re-adjustment in Award No. 2 of 1995 ought to
have been given more careful consideration.
6. THAT the Learned Sugar Industry Tribunal erred in law in holding that the 1.5% increase awarded to the other unions was not discriminatory."
It will be seen at once that each of the 'grounds' asserts that the Tribunal 'erred in law' and thereafter, each ground sets out the particular manner in which it is said such error arose. On a cursory reading of the 'grounds' however I considered it prudent to seek counsel's assistance on whether the appeal was competent given the Court's jurisdiction on
appeal.
In this regard Section 123 of the Sugar Industry Act (Cap. 206) provides:
"(1)Subject to subsection (2) any person or organisation bound by an award may appeal to the Supreme Court (now High Court) against the award or any of the terms of the award on any of the following grounds -
(a) that the tribunal had no jurisdiction or exceeded its jurisdiction in the matter to which the appeal relates;
(b) that the award has been obtained by fraud; or
(c) that the decision of the tribunal is erroneous in point of law,
or by leave of the Supreme Court, if the Supreme Court is of the opinion that the matter is of such importance that, in the public
interest, an appeal should lie."
The Court is also empowered under the Section to stay the operation of the Award during the pendency of the appeal [subsection (4)]; (to) admit further evidence and request a report from the Tribunal on any specified matter [subsection (5)]. Subsection 6 sets out the comprehensive nature of the orders that this Court may make on an appeal and Subsection 7 quite unusually, allows the Court to 'dismiss an appeal if it considers that no substantial miscarriage of justice has occurred notwithstanding that ... the appeal might
have been decided in favour of the applicant'. Quite plainly the Court has very extensive powers to deal with an appeal against an Award of the Tribunal once it is accepted.
It is immediately obvious that in its appeal the Union is relying only on Section 123(1)(c) of 'the Act'. The threshold question that arises thereunder is: "Does each of the 'grounds' advanced, satisfactorily raise or identify an appealable error of law"?
In O'Kelly v. Trusthouse Forte P.L.C. (1984) 1 Q.B.90 Sir John Donaldson M.R. in considering a provision which permitted an appeal against a decision of an industrial tribunal only 'on a question of law', said at p.123:
"... the fact is that the appeal tribunal has no jurisdiction to consider any question of mixed fact and law until it has purified
or distilled the mixture and extracted a question of pure law.
The purification methods are well known. In the last analysis all courts have to direct themselves as to the law and then apply those
directions in finding the facts (in relation to admissibility and relevance) and to the facts as so found. When reviewing such a
decision, the only problem is to divine the direction on law which the lower court gave to itself. Sometimes it will have been expressed
in its reasons, but more often it has to be inferred. This is the point of temptation for the appellate court. It may well have a
shrewd suspicion, or gut reaction, that it would have reached a different decision, but it must never forget that this may be because
it thinks that it would have found or weighed the facts differently. Unpalatable though it may be on occasion, it must loyally accept
the conclusions of fact with which it is presented and, accepting those conclusions, it must be satisfied that there must have been
a misdirection on a question of law before it can intervene. Unless the direction on law has been expressed it can only be so satisfied
if, in its opinion, no reasonable tribunal, properly directing itself on the relevant questions of law, could have reached the conclusion
under appeal. This is a heavy burden on an appellant. I would have thought that all this was trite law."
The Supreme Court of the Northern Territory (Australia) said in Wilson v. Lowery [1993] NTCA 127; (1993) 110 F.L.R. 142 in regard to a similarly limited right of appeal at p.146:
"The authorities have been conveniently summarised ... We venture to repeat them:
1. In the process of arriving at an ultimate conclusion a trial judge goes though a number of stages. The first stage is to find the
preliminary facts. This may involve the evaluation of witnesses who gave conflicting accounts as to those facts. If the trial judge
prefers one account to another, that decision is a question of fact to be determined by him and is not reviewable on appeal. It may
be that the reason given for preferring one witness to another is patently wrong. Nevertheless, no appeal lies.
2. Regardless of the trial judge's reasons, if there is evidence which, if believed, would support the finding, there is no error
of law.
3. If, on the other hand, there is no evidence to support a finding of fact which is crucial to an ultimate finding that the case
fell within the words of the statute ... there is an error of law.
4. But, a finding of fact cannot be disturbed on the basis that it is 'perverse', or 'against the evidence or the weight of the evidence
or contrary to the overwhelming weight of evidence'. Nor may this Court review a finding of fact merely because it is alleged to
ignore the probative force of evidence which is all one way, even if no reasonable person could have arrived at the decision made,
and even if the reasoning was demonstrably unsound: Haines v. Leves (1987) 8 N.S.W.L.R. 442 at 469-470.
5. The second stage is the drawing of inferences by the trial judge from the primary facts to arrive at secondary facts. This is subject
to the same limitations that apply to primary facts.
6. If there are no primary facts upon which a secondary fact could be inferred, and the secondary fact is crucial to the ultimate
finding as to whether or not the case fell within the words of the statute, there is an error of law. If there are primary facts
upon which a secondary fact might be inferred, there is no error of law.
7. It is not sufficient that an appellate court would have drawn a different inference from those facts. The question is, whether
there were facts upon which the inference might be drawn. If a tribunal draws an inference which cannot reasonably be draw, it errs
in point of law and its decision can be reviewed by the courts: Instrumatic Ltd. v. Supabrase Ltd. [1969] 1 W.L.R. 519 at 521; [1969] 2 ALL E.R. 131 at 132, Lord Denning MR, with whom Edmund Davies LJ and Phillimore LJ agreed; Edwards (Inspector of Taxes) v. Bairstow [1956] A.C.14."
Finally in this regard, reference may be made to the judgment of Rooney J. in 'the first (appeal) to be presented (after) the establishment of the Tribunal under the Sugar Industry Act Section 18' where his lordship in rejecting three (3) of the 'grounds of appeal' presented in that appeal in the following terms:
"2. THAT the Tribunal erred in law in deciding that it had no jurisdiction to reinstate the dismissed officer because the Corporation
has not agreed to any terms of reference involving any issue of unfair dismissal;
3. THAT the Tribunal erred in holding that it could not consider the issue of unfair dismissal under the Sugar Industry Act or the Collective Agreement between the Appellant and the Respondent; and
5. THE Tribunal erred in law in holding that the only issue for it was whether tsmissal of the officer Nity Nitya Reddy was lawful
or unlawful."
said at (1986) 32 F.L.R. 82 at p.85:
"Grounds 2, 3 and 5 refer to matters of opinion expressed by the Tribunal in its ruling. These opinions may or may not be valid,
but they form no part the decision which is the subject of the appeal. Whether or not I accepted as correct the views of the Tribunal
of these matters could not affect the decision which I am obliged to make in this appeal ... I do not propose, therefore, to deal
with them."
In seeking to answer the 'threshold question' counsel for the Union orally submitted that ground (1) was based upon an observation of the Tribunal (at p.1 para.3) that:
"In reviewing the precedents in wages and salary settlements in the period 1986-1995, the Tribunal notes that the 3.5 per cent
award in Award No. 2 of 1995 was (out) of Kilter with the trends established over that period. All four unions received identical
wage and salary rises in that time."
Such an 'observation' counsel argues amounts to an interpretation of Award No. 2 of 1995 and accordingly raises a 'question of law'. I cannot agree.
The Tribunal's 'out-of-kilter' remark was clearly based on its assessment of wage settlement statistics over a defined period where the uniform trend or established
practice was: 'that all four Unions in the Sugar Industry consistently received identical wage and salary rises'. That assessment is entirely a 'matter of fact' for the Tribunal to determine on the materials provided and, as I understand counsel's submission, remains unchallenged i.e. the established trend.
In ew the Tribunal's remark was more in the nature of a comparison than an interpretatietation of an existing Award, and offends no legal principle. At most it was a statement of opinion. 
