Fiji Sugar Corporation Ltd v Fiji Sugar & General Workers Union [2000] FJHC 84; Hba0029J.1998s (19 July 2000)

Fiji Islands - The Fiji Sugar Corporation Ltd v Fiji Sugar & General Workers Union - Pacific Law Materials

IN THE HIGH COURT OF FIJI 1"> At Suva

Appellate Jurisdiction

CIVIL APPEAL NO. 0029 OF 1998

Between :

THE FIJI SUGAR CORPORATION LIMITED

Appellant

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FIJI SUGAR AND GENERAL WORKERS’ UNION

Respondent

Mr. R. Naidu for the Appellant

Mr. H. Nagin for the Respondent

JUDGMENT

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This is an appeal under Section 123 of the Sugar Industry Act (Cap.206) againsaward of the Sugar IndusIndustry Tribunal (`the Tribunal’) delivered on 16<sup>th</sup> October 1998 in respect of two (2) unresolved disputes between the Fiji Sugar Corporation (`the Corporation’) and the Fiji Sugar and General Workers Union (`the Union’) referred to it and concerning `seasonal workers’ and `loco-drivers’.

The particular nature of the disputes are conveniently summarised in the relevant Certificates of Dispute as follows:

re : the seasonal workers (Dispute No. 7 of 1998)

`By denying regular seasonal workers work when they reported for work at the start of (crushing) season atoka and Labd Labasa Mills ... the Corporation has breached. ClCI(d) of the Collective tive Agreement ...’ ; &nbsd

re : the loco-drivers (Dispute No.8 of 1998)

`By changing the work practices at Lautoka and other districts oo crews the Corporation breached the `Change of Conditions’ provision of the Collective Agreement and Custom and Practice ...’

The general background to the disputes upon which there is little disagreement may be summarised as follows : Owing to a prolonged severe drought experienced in the sugar cane growing areas resulting in a significantly reduced supply of cane tonnage to the sugar mills the 1998 crushing season was predictably a shortened one. It io common ground that dhat during the crushing season the work fat the vahe various sugar mills usually increases to cope with the supply of cane and runnie mills on a continuous basis.

The more particular background, I gratefully adopt from the Tribunal’s decision where it states (at p.203 of the record ) :

re : the seasonal workeran>

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`It has been the practice for seasonal workers to offer themselves for work on the first day of each crushing season and for the Corporation to engage them from that day. Up until the season, it wait was common ground that it was also the practice for the Corporation to re-engage every person who had previously satisfactorily served as a seasonal worker and who offered himsor work.

>

In 1998 however the Corporation departed from the long-established practice. It declined to re-engage a number of seasonal workers who offered themselves for work at the start of the crush at its Lautoka and Labasa mills ... allegedlause no e no work was avail’

and as regards `the loco-rs’ (at p.207 of the record) :

`One of the main results of the reduced amount of available cane this season, is that the need for locomotive transportation of cane has also been reduced.

/b>

Instead of reducing the number of loco drivers in response to the reduced demand, the Corporation decided to retain the existing number of loco drivers in employment, but to allocate pointsmen’s duties to some of them. The result of this was, of course, that the seasonal workers who generally work as pointsmen were among those not re-engaged in the beginning of the season.’

Finally as regards both disputes the Tribunal writes (at p.205 of the record):

`... it was common ground that the Corporation’s decision was taken without consultations betweenCorporation and the Union, ion, at least at the national level.’

Having thus set out the background to the disputes I turn next to the Tribun/b> actual decision pertainrtaining to each dispute. Without reng to any particarticular passages in the very comprehensive and lucid decision, suffice it to say that the Tribunal ruled in favour of the Union’s submissions in respect of disputes and orde ordered : `that all seasonal workers who were denied work at the beginning of the 1998 crushing season should be compensated by the Corporation with a total of one month’s pay.’ and `be treated as if they were on the Corporation’s service in 1998'.

From that award the Corporation appeals on the following grounds:

2. ;&nbssp&nbbsp; That that that the Tribunal erred in law in holding that the Appellant was bound to consult the Respondent under the “e in tionsuse o Collective Agreement before taking a decision breaching Clau Clause C1se C1(d) o(d) of thef the Collective Agreement.

/b> an stfont:7.0pt "Times New Roman"">  p;&nssp &nbs; & &nbs; &nbp; &nnbp;&&nbp;; That that the Tribunal erred in law :

(a) &nbssp;&nnbsp;&nsp; &nsp; &nbssp;&nbs;&nnbp; &nbp; in all ircumstancesances in awarding extra “compensation” (one month’s pay) to seasonal workers over and above their contractual entitlement (one w pay)ay oferrence or encouragement’ to encourage compliance by t by the pahe partiesrties with their obligations;

(b)&nnbsp; &nnsp;&&nsp;;&nspp;nbsp;&nbp; in hg tint tha Trib Tribunal had jurisdiction under ss.105(1) (d) and 117 of the Sugar Industry Act (”Act”) to make the award in (a) above.

4. & &nbp;&&nbp;;&nbpp; & Tpan>That that the Tribunal erred in law in holding that :: 1"> <&-GB> nbspa

(a) &nsp; & &nbbsp; &nbp; &nbp; &nb/p; the Corporation’s `practice’ (so called) in regard to the allocation of different work to pointsmen and locomotive drivers was a “practicveredhe “Cs in Conditions” ons” clausclause of e of the Collective Agreement ;

(b) &nnbsp; the allocation of poif pointsmen’s work to general workers who were previously locomotive drivers was a change in practices assed wieir tand cions ployment subject to the “Changes in Conditions” cla” clause ruse requirequiring ning notifiotification and negotiation.’

I am grateful to both counsels for thprehensive written submissions provided to assist the Court in this appeal which counsel foel for the Corporation describes as concerning `fundamental matters for the Appellant’. I also note counsel’s ssioession that this appeal `can be conducted entirely by reference to the Tribunals Award ... and (in particular) its conclusions on those s. (The Appellant Corporation) is only only in disagreement with its conclusions.’

In dealing with this appeal which I am satisfied raises appee questions of law, I propose under each ground to set out out the applicable Clause(s) of the Collective Agreement and/or statutory provisions ; the decision as i as it relates to the particular ground ; the competing submissions of counsels on appeal ; and thereafter, the Court’s conclusions on the matter.

ass=MsoNormal stal styl style="text-align: justify; margin-top: 1; margin-bottom: 1"> Ground 1 :

`1.&nnbsp; That tib Trl enaederred ined in law in holding that the Appellant was bound under the terms of Clause C1(d) of the Collective Agreement between the Appellant and the Respondent (“Collective Agreement”) to re-employ “seasonal workers” (so-called) at the beginning of the 1998 crushing season.

This ground which is said to raise `the main issue in the appeal’ plainly concerns the meaning anect of Clause CI(d) of the Collective Agreement which governs the relationship between the Corporation and the Union and which `... shall be implied in every contract of employment between an employer and employee to whom the agreement is expressed to apply, in so far as those terms are applicable to them’ [See : Section 92 of the Sugar Industry Act (Cap.206)].

Clause CI(d) occurs in the following relevant context :

`SCHEDULE C - TERMS OF ENGAGEMENT ASCHARGE

1. GENERAL>

1"> (e) &nbbsp;  &nbbsp; &nbsspan>The Core Corporatioration must remain free to employ whom they require and to he sknd/orices emplin wher cay theoratinsidess best.&nbt. (sp; (The CThe Corporationationation cons considersiders that that, ord, ordinarily, it is in the Corporation’s interest to use the skill and/or services of an employee in the capacity in which he is experienced and/or in a job that pleased him).

(f) &nnsp;&&nsp;;&nspp;nbsp;&nbp; ;&nspp; In ordinary nary circumstances, where more men are offering than the Corporation has work to offer it will employ the mech thporatonsiders best suited for its pe.

(gn style="font:7.0pt "Times New Roman""> &nnbsp;;&nspp;nbsp;nbsp;&nbp; &nnbsp;;&nspp;&nsp; The Corporadoen does not expect any man whose employment has been terminated by reason of there being no worklableold hf ready to be called for work at a later date.&nbe. Tsp; The Cohe Corporation does not agree that it shou should ration employment amongst employees and ex-employees for the reason that the latter may wish to re-enter the Corporation’s employment.

(h) &nnsp;&&nsp;;&bsp;&nbpp;&nbp; an>spe Cohporation will conl continue to re-engage “old hands” at the start of each crushing season provided that they apply for work at the appointed time and that they, in the Corporation’s ent, givenseem likely to coto continuntinue to e to give satisfactory service.

(i) &nbbsp;  &nbbsp; &nbssp; Wpan>While it is recognised that the selection of workers is uncti manat, itgreed the ratiol havard t foll wing princprinciplesiples : span>

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Except when there are special circumstances and in particular those affecting skill itability for the job the pthe principle to be followed for slacking off workers will be that employees with shorter terms of service will be slacked off before those with longer service.

In the matter of promotion to a higher post in the Corporation’s service, length of ce will be an important fact factor to be taken into account and when other things are equal will be the determining factor.

(j) &nbbsp; &nsp; &nbbp;&nnbp; &nbssp; &nbp; Concessiod othd other benefits that accrue to Corporation’s employees shall not be available to any former employee whose servicee beeminat reason of work no longer being availavailable for him or otherwise. Howe However, ver, if a n rson is stood down for a period not exceeding one week then the concession and other benefits will continue but in accordance with the rules otherwise governing them.

2. & p;&nbbsp;&bsp; bsp; ENGAGEMENT>

(a)  p; &nsp; &nbbsp;

(b) &nbssp;&nnbsp;&nsp; &nsp; &nbssp; &&nsp;; span>A semi-skilled or skilled hand may be engaged for a particular job but he shall continuee emp in tapacity only folong as the Corporation may hmay have save such auch a part particular job available for him. Wuch a particular job ceas ceases to become available for him, he shall accept other work (if available) at rates applicable for such work or have his serviceminated

...

3.03

3.03.02.01

In ordinary circumstances and where there is no agnt to the contrary, regular employees should be given and sand should give one week’s notice of termination of service. This pron may not be used used as a disciplinary measure without compliance with the relevant clauses.

3.05 &nbssp; P of Ronationship ohip of Employer and Employee

3.05.01

For as long as a relationship of employer and employee exists betthe Corporation and a workmworkman that workman is entitled to receive such benefits as are herein provided. The relationship wbegins wins with the start of actual work, is considered to end :

3.05.01.01

When the employee’s services have been terminated by notn either side or by summarymmary dismissal or when stood down indefinitely due to no work being available.’

As to the meaning and effect of the Clause C(1)(d) above, the Tri in its decision said (at p.215 of the record) :rd) :

p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> “In the Tribunal’s view, sub-clause 1(d) must have been intended to have some effect and that effect must have been to make a specific exception to the general principles contained in the preceding clauses.

ass=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> On balance, the Tribunal therefore favohe Union’s interpretation that sub-clause 1(d) imposes an obligation on the Corporation to n to re-engage seasonal workers at the start of every crushing season provided only that they fulfil the 2 conditions set out in that sub-clause.

The Tribunal notes that sub-clause 1(d) is bpecific and categorical. It apponly to `old hands’ nds’ (i.e. experienced seasonal woal worker) and only at the beginning of the crushing season. In respect ose workers ands and only at that time, the Corporation will continue to re-engage.

In other words, the specific and emphaature of sub-clause 1(d) overrides the 3 general sub-clauses that precede it in respect of t of qualified seasonal workers at the start of the crush.

p class=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> The 3 preceding sub-clauses are therefore to be understood as applying at generally to casuals, and as far as seasonal workers are concerned, only at other times of the year.

Sub-clause (a) is to be regarded as the usual statement of general principle, the exact effect of which is cled or honed by later provisrovisions.

In respect of sub-clause (b), the Tribunal interprets the opening words `in ordinary circumstances’ to mean at times other than the start of the crush, and the whole clause as meaning that at those other times, it is the Corporation’s function to decide who should be employed.

As to sub-clause 1(c), it is the second of the 2 sentences that is relevant to the issue. It is to tfect that the Cohe Corporation is under no obligation `to ration employment amongst employees and ex-employees’ because the latter may wish to re-enter employmebsp; As with sub-clause 1(c), the Tribunal considers that that this sentence applies generally to casuals and as far as seasonal workers are concerned, at times other than the start of the crush.’

and later at p.217 the Tribunal said :

`In the circumstances, the Tribunal considers that the proper coursection for the Corporation to have followed was to re-engagengage all of the seasonal workers at the start of the crush, but to give those for whom it considered there to be no work, 7 days notice or pay in lieu of notice under the termination clause of the Collective Agreement.

/b>

In effect, the minimum that an `old hand’ is therefore entitled to, under the Agreement, should there be no work available is, 7 days work (sic) or 7 days pay.’

(My underlining for emphasis)

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Appellant’s counsel in his written submissions conveniently summarthe Corporation’s complaint as being `... (that) the Tribunal has mis-interpreted a term in the Collective Agreement to produce a commercially outlandish result and one which cannot reflect the true contractual intent of the parties’.

In particular, counsel writes, that :

`Sub-clause (1)(d) exists to give priority to old hands against new entrants in the `labour pool’ at the start of the crush. Absent, Sub-Clause 1(d) `old hands’ would have no priority. This Sub-clause is simplydan adaptation of unionisedur’s allowed. `Last in First out’ poto a to apply to seasonal workers - i.e. senioritiority last season will entitle you to seny this season.’

Counsel for the Union in reply supports the Tribunal’s decision and states:

`This interpretation (of the Corporation’s counsel)does noe any sense because the clae clause is very clear that the Corporation is to continue to re-engage (seasonal workers) provided that they meet two conditions :

firstly - they apply for work at the appointed time ; and /p>

p class=MsoN=MsoNormal style="text-align: justify; margin: 1 36.0pt"> secondly - they, in the Corporationdgment have given and seem likely to continue to give satisfactory service. I-GB>If there was to be implied a condition that the re-engagement was subjo work being available (thB>(then) that proviso should have also been added in because 1(d) is the only (clause) dealing with seasonal workers.’

Quite plainly this ground of appeal raises for determination the meaning and effect of of Scheduleedule C upon which interpretations have undoubtedly differed.

In dealing with this ground it is convenient to recall that the constructf a written document is a question of law solely for the dehe determination of the court : per Cozens - Hardy M.R. in Lovell & Christmas Ltd. v. Wall (1911) 27 T.L.R.236. Whatsmhe governing principinciple for the construction of contracts is to give effect to the intention of the parties expressed in the words of their contract : pe Erle C.J. in Aubert v. Gray (1862(1862) [1862] EngR 983; 3 B & S 169 at 182.

It is also well to bear in mind the following relevant caveats - >that in the construction of all instruments it is t is the duty of the court not to confine itself to the force of a particular expression, but to collect the intention from the whole instrument taken together : per Leach V.C. in Hume v. Rundell [1824] EngR 961; (1824) 57 E.R. 311 and that the grammatical and ordinary sense of the words is to be adhered to, unless that would lead to some absurdity, or some repugnance or inconsistency with the rest of the instrument per Lord Wensleydale in Grey v. Pearson (1957) 6H.L. Cases 61 and also per Lord Reid in Shuler v. Wickman (1973) 2 Lloyds Rep.53 at p.57.

In the present appeal counsel for the Corporation sought to demonstratsomewhat dramatically, the absurdity of the Tribunal’s interpretation of Clause C(1)(d) when he wrote :

`It (the Tribunal’erpretation) is effectively this. If one is an `old hand’ one. one who has work worked for F.S.C. in previous seasons, ... one has the right in perpetuity to turn up at a mill at the beginning of the crush, declare oneself ready to work and demand a’s termination pay in the .the ... event that there is no work available ... One can envision a of ghos ghosts of crushing seasons past descending on F.S.C. once a year with the expectation that they will at least collect a cheque ; if they actually get wthat is a bonus.’

Counsel for the Union for his part agrees with the Tribunal’s view :

`... that if one adopts the position advocated by orporation, then sub-clause 1(d) is effectively rendered superfluous : the rights of seasoneasonal workers and the obligations of the Corporation are no more than those found in other sub-clauses.’

and, in rejecting appellant counsel’s `vision’ as incorrect, counsel highl the second pre-condition tion to the re-engagement of `old hands’

in Clause C(1)(d) which reserves to `the Corporation’s judgment’ the question of `satisfactory service’ (past and future) by such `old hands’ t regardless of whof whether or not such services are presently required.

Finally, in so far as it might be said to arise from the Tribunal’s decision or el’s submissions, I includeclude the following citations. The f is taken from b>Whitworth Street Estates Ltd. v. James Miller & Partners Ltd. (1970) A.C.583 where Lord Reid said at p.603 :

ass=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `I must say that I thought that it is now well settled that it is not lmate to use as an aid in the construction of the contract aact anything which the parties said or did after it was made’ ;

[applied by the Privy Council in Ashton v. C.I.R. (1975) 2 N.Z.L.R. 717 at 722] and, the second, from udgmjudgment of Bowen L.J. in the leading case of The Moorcock (1889) 14 P.D.64 when he said :

`In business transactions such as this, what the law desires to effect by the implication (of a term) is to give such business efficacy to the transaction as must have been intended in all events by both parties who are businessmen.’

[applied by Scn L.J. in Reigate v . Union Manufacturing Co<. (1918) 1 K.B. 592 at 605]

These relevant principles are conveniently collected in the following passage in the judgment of when he said inid in a case concerning the interpretation of a written building contract, H.P. Kasabia Bros. Ltd. v. Reddy Construction Co. Ltd. (1977) 23 F.L.R. 235 at p.255 :

`... it is my respectful view that the express words of the contract must firstonstrued in the surrounding circumstances but not on the bahe basis of what the parties may have said was their intention at the time. Nor can any prior or subntquent conduct determine the meaning of their written contract. The paramount task of a court is to consider the express words used, considering them, of course, in the context of the whole of the provisions in writing andrelevant background. It is besie point that thet the parties may consider their obligobligations to be different from the express terms of the recording instrument ... If the written words apablapable of being given a meaning then that is the intention and obligation in accordance with the writing.’

Having carefully considered the relevant provisions of the Collective Agreement, counsel’s competing subons and the Tribunal’s decision, I am satisfied that the Tribunal misconstrued the meaning and effect of Clause C(1)(d) which is but one of six (6) sub-clauses under the umbrella heading : `GENERAL’.

If I may say so the fundamental that the Tribunal and counsel for the Union makes, is in construing the proe provisions of Clause C(1) as if they were the substantive engagement or recruitment clauses of the Collective Agreement which they are not, either individually or coilectively. The relevant Clauser whichwhich employees are engaged or recruited into the Corporation’s service is Clause C(2) entitled : ENGAGEMENT and not Clause C(1) , in ew view, merely providrovides some agreed common guidelines andral pral principles for the engagement or termination of va types of employees whether skilled, semi-skilled, or unskilled.

In this latter regard I accept Counsel for the Corporation’s submission that the guideline prle established by ClausClause C(1)(d) is `... to give specific priority to `old hands’ as against new entrants in the labour pool at the start of each crushing season’. dition it benefits the e Corporation by ensuring that there is a pool of ready, willing and experienced workers available at the mills at the beginning of each crushing season.

Viewed in that manner and in that context, Clause C(1)(d) does not strictly refer to the availability of work as a pre-conditondition for the re-engagement of `old hands’, there can be no doubting that the same fundamental requiremeirement of any engagement under Clause C(2) which envisages an engagement `for any work’.

<1">

Needless to say in my considered opinion, the engagement of a worker when there is no work availab a contradiction in terms mrms made all the more ridiculous when the only legal entitlement of such an engaged worker is, in the Tribunal’s words, `... to 7 days notice (of termination) or pay in lieu (thereof)’. In other words Clause(d(1)(d) as construed, requires the Corporation, where there is no work available, nevertheless to hire `old-hands’ in order to fire them ! That cannot be right.

I aB>I am fortified in the above construction when one considers the clear tef Clause 3.05.01 of the Collective Agreement which recognises that the relationship of employer and employee `... begins with the start of actual work ...’ (and not before then). Accordinglyexistence and pand performance of work must be considered normal legal incidents of the employer/employee relationship under the Collective Agreement.

If I am incorrect however in so construie relevant provisions of the Collective Agreement then I would be prepared to imply mply into Clause C(1)(d) a further requirement to the re-engagement of `old hands’, namely, that suitable work be available.

ass=MsoNormal smal style="text-align: justify; margin-top: 1; margin-bottom: 1">

Such an impn implication would not only bring sub-e (d) in line with sub-clauses (b) ; (c) & (f) and Clause C(2)(b) insb>insofar as each of them refers, in varying ways and for different purposes, to the availability of work, but also, because such a term is necessary to give `business efficacy’ to the Collective Agreement and avoid the potential inefficiencies and additional costs that can ensue from the indiscrimina-engagemengement of `old-hands’ when there is in fact no work available.

Furthermohermore in a Collective Agreement w inter alia prescribes the terms and conditions of employment, the implication of a of a term requiring work to be available as a pre-condition for employment is, in my view, something `so obvious that it goes without saying’ : per Mackinnon L.J. in Shirlaw v. Southern Foundries Ltd. (1939) 2 K.B. 206 at 227.

Needless to say the mere fact that the Corpor has, since the Collective Agreement came into effect, always engaged alld all seasonal workers that have offered themselves for work at the beginning of each crushing season does not, in my considered view, give rise to an immemorial custom or relevant usal practice which is so s so notorious, legal and reasonable as to give rise to a presumed intention of the parties to engage `old- hands’ irrespective of the availability of work. If I my so o-called `past practice’ is equally explicable on the basis that what work has always been available.p class=MsoNormal style="text-align: justify; margin-top: 1; margin-bottom: 1">

For the foregoing reasons I am satisfied tha decision of the Tribunal as to the meaning and effect of Clause C(1)(d) of t of the Collective Agreement is erroneous in point of law and must be and is hereby set aside. This is sufficient to dispose of the entire appeal but if I should be wrong in my interpretation of Clause C(1)(d), then it is appropriate that I shounsiconsider the Corporas appeal against the monetary compensation awarded by t by the Tribunal.

&nbs>

Ground 3 :

3.

<1"> (a)  p; &&bsp;;&bspp; &nnsp; in all tre circumstances in awarding extra “compensation” (one ms payseasoorkerr ande thentracentitlement (one week’s pay) byy) by way way of `dof `deterreterrence ence or enor encouracouragement’ to encourage compliance by the parties with their obligations;

(c) &nnsp;&&nsp;p;&bssp;&bbsp;&bsp; in holdint thet the Tribunal had jurisdiction under ss.105(1) (d) and 117 of the Sugar Industry AAct”)ake tard i abovpan>

Quite plainly this ground of appeallenges the Tribunal’s award of `one month’s compensation’ to all seas seasonal workers who were denied work at the beginning of the 1998 crushing season (whoever they might be), both as an error of law and for want of jurisdiction.

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> The Tribunal’s reas for its compensation award are set out as follows in its decision (at p.223 of the the record) :

`Having found breaches of both clause 1(d) of the Collective Agreemen of the change in conditions clause, the Tribunal must now now consider the appropriate remedy.

It has already stated that the minimum that a seasonal w is entitled to, under clause 1(d), is one week’s work or o or one week’s pay in lieu. Accordinordinary contract ract law principles, this would be all the workers would be entitled to.

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It has also stated its view that the failure to comply with the change in conditions clause is likely to haveudiced the affected workersrkers by denying them the opportunity to seek whatever alternative work might have been available.

/b>

In assessing the remedy forbreach of its obligation to notify and negotiate, the Tribunal believes that it is entitleditled, in accordance with general principles, to include an element of `deterrence’ or, put positively, something which encourages the Corporation and, by example, the Union to comply with their obligations particularly as to notification and negotiation. It also does so in reliance on section 117 of the Act which empowers the Tribunal to include in its award anything for the purpose of preventing further disputes and section 105(1)(d) which permits it to award compensatio bror breach of an award.

In all of the circumstances, thbunal considers that all seasonal workers who were dedenied work at the beginning of the 1998 crushing season should be compensated by the Corporation with a total of one month’s pay.

In order to prevent any future argument as to continuityervice, the Tribunal must also state that they are to be trbe treated as if they were in the Corporation’s service in 1998.’

It is clear from the above that t>Tribunal understood that the minimum entitlement provided under the Collective Agre Agreement for strict compliance with Clause C(1)(d) (and presumably for a breach thereof) is `... one week’s pay’. No such cleh clear monetary amount is discernible however, for a breach of the `Chann Conditonditions’ clause and it is in respecthis b that the Tribunal has seen fit `...>`... in accordance with general principleciples to include an element of deterrence.. something which encouragourages the Corporation and, by example, the Union ... to comply with (their) obligations particularly as to notification and negotiation’.

At the outset the use of the term `deterrence’ is unfortunate in the context of resolving trial disputes. It isIt is a tere familiariliarly used in the imposition of penal or criminal sanctions where offending is pre-meditated : per Lawton L.J. in R. v. Sargeant (1974) 60 Cr. App. R.64 at 77 and R. v. Radich (1954) N.Z.L.R. 86 at 87. Inpinion such a penal conc concept or principle has no part in an award of compensation under Section 105(1)(d) of the Sugar Industry act (Cap.206).

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Whatsmore `compensation’ as the term is commonly, may be defined as the pecuniary recompense which a personerson is entitled to receive in respect of damage or loss which he has suffered other than as a result of an actionable wrong for which a separate civil action is maintainable. In assessing an appate amoe amount of compensation, it must generally be borne in mind that compensation is just that, compensation for the affecteloyee as opposed to a penalty imposed upon the employer.

In Norton Tool Co. Ltd. v. Tewson [1972] EW Misc 1; (1973) 1 W.L.R. 45, the Court of Appeal (U.K.) in rejecting the applicatiication of the common law rules relating to damages, to an award of compensation under Section 11 of thef the Industrial Relations Act 1971 (U.K.), for loss occasioned by unfair dismissal said (at p.48) :

`In our judgment, the common law rules and authoriti wrongful dismissal are irrelevant. That cause of action is quite unaffected by the Ithe Industrial Relations Act 1971 which has created an entirely new cause of action, namely, the `unfair industrial practice’ of unfair dismissal. The measure of coationnbsp that statutoatutory wrong is itself the creature of statute and is to be found in the 1971 Act and nowhere else.’

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and ,in discussing the nature of the diion to award compensation, the Court said (also at p.48):

`... we do not consider that Parliament intended ... the tribunal to dispense compensation arbitrarily ..pensation is not to be asse assessed by adopting the approach of a conscientious and skilled cost accountant or actuary. Neverts that discretion ison is to be exercised judicially and upon the basis of principle ...’

/p>

and later, in discussing the nature of the `loss for which compensation may be ordered under the Act, tct, the Court said (at p.48) :

`the object (of the award) is to compe, and compensate fully, but not to award a bonus, ... seconsecondly, loss in the context of Section 116 does not include injury to pride or feelings. In its na meaning the word word is not to be so construed, ...’

Similarly, in the present case, I do not accept that the common law pries relating to an award of exemplary or punitive damages haes has any application to the statutory regime created under the Sugar Industry Act for an award of compensation, but equally the regime does not support `a bonus’ or `a penalty’.

Furthermore if, by referring to `... general principles ...’, the Tribunal meant that it had some inherent power to fine or penalise a party in breach of a Collective Agreement then, quite plainly, that would constitute an error of law insofar as `... the Tribunal is the creation of the Sugar Industry Act ... (whose) ... powers ... are those expressly or by implication conferred upon it by the statute’ and no more : per Rooney J. in Sugar Milling Staff Officers Association v. F.S.C. (1986) 32 F.L.R. 82 at 86.

It is also a little difficult to understand how an award against the Corpon could or would deter the Union from future brre breaches of the Collective Agreement generally or, in particular, Clause C(1)(d) and the `Changes in Conditions’ clause when neither clause imposes any clear duty or obligation on the part of the Union to do anything, nor, would there be any likelihood of re-offending on the Corporation’s part given the authoritative interpretation of Clause C(1)(d) by the Tribunal.

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Be that as it may, learned counsel for the Corporation e assumption that there had been breaches of Clause C(1) C(1)(d) and the `Changes in Conditions’ clause of the Collective Agreement submits, that the Tribunal had no power to impose a deterrent penalty `in the nature of exemplary damages’ nor did the particular circumstances of the breaches warrant the exercise of such power assuming that it existed.

As to the former counsel submits that the effect of the award was `to punish F.S.C.’ by increasing its `financial exposure ... more than fourfold’ which is `unreasonable, unnecessary and unduly harsh (and an error of law accordingly)’.

As for the particular circumstances of the case that militate against any penalty being imposed, cousubmits, that the C Corporation interpreted the relevant clauses of the Collective Agreement `in good faith’ and it `was not a sion where F.S.C., in full knowledge of its legal obligationstions elected blatantly to flout them’. In short, counsel folly suly submits that `F.S.C. is entitled, in respect of a complex legal issue, to be wrong without suffering a sledge hamttack’.

In reply Counsel for the Union writes :

It must be remembered that the Sugar Industry stry Act gives very wide powers to the Tribunal and this has been clearly stated in the case of Fiji Sugar Corporation v. Sugar Milling Staff Officer’s Association - Fiji Court of Appeal Civil Appeal No. 74 of 1986.

and later at para. 3.05 (in dealing with the submissions on compensation) counsel writes :

`The Appellant’s submissions in this regard are quite off the mark because the Appe is dealing with the issue of damages and exemplary damagesmages. In this case Section 117 of the act has further power to grant relief not claimed and make an Award which is aimed at preventing further disputes. In this chis is exactly whly what thbunal has done and has clearly stated that it is applying sing section 117 to deter further disputes in relation to breaches of the Aor the Collective Agreement.’

In order to resolve this issue it is necessary to briefly consider the nature, purpose and powers of the Tribunal conferred under the Sugar Industry Act (Cap.206). In this regard Rooney J. said in Sugar Milling Staff Officers Association v. Fiji Sugar Corporation (1986) 32 F.L.R. 82 at p.87:

`The powers referred to in Section 26 and the duties prescrib Sections 28 and 30 make it abundantly clear that the TribuTribunal is more than a Court of Law.’

and more specifically at p.89 his lordship said :

p class=MsoNormal stal style="text-align: justify; margin: 1 36.0pt"> `The legislative purpose of the Tri is to enable employers and emps to obtain redressdress without resort> to industrial action which would be damaging to an industry which is vital to the economy of Fiji. The Tribis there as a subs substitute to resolve industrial disputes without the risk of such disruption. If it is to serve its purpose the Tribunal must have and exercise all the powers necessary to achieve the same resu results as might otherwise be attained bykesrikes and lock-outs.&nbs hold otherwise would be to assume that the legislature inte intended, not only to suppress the rights of the parties to take industrctions, but to curtail their right to achieve their legitimgitimate objectives by other means.’

ass=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> Finally, in ruling that the Tribunal had power to orderreinstatement of a worker in the absence of any express pros provision in the Collective Agreement or the Sugar Industry Act, his lordship said at p.90 :

`If at the end of its investigation of the merits of the case the tribunal is convinced that reinstatement ... is required as a `just settlement’ of the matter, it should not shrink from giving effect to its conclusion merely because such an award might have the effect of ordering specific performance of a contract of service.’

A similar view was expressed of the Tribun/b> powers by the Fiji Court of Appeal in upholding the above decision on appeal, inl, in Civil Appeal No. 74 of 1986 (unreported) where it said at p.3 :

span lang=EN-GB>`We find onnd on a reading of the provisions of the entire Act and considering the scheme of the Act as a whole that ct vests in the Tribunal amal amplitude of power which must be deemed to include the power of reinstatement.’

and later at p.6 the Court of Appeal

`There is no limitation imposed by tt on the Tribunal as to its powers of settling disputes in the interests of the Sugar IndusIndustry.’

More recently, Pathik J. in upholding the Tri's 'return-to-work' order, in the absencesence of an express power to do so and in the face of a 'lawful strike', in Fiji Sugar and General Workers Union v. F.S.C. Misc. Appeal No. 12 of 1997 (unreported) said, at p.12:

`My interpretation of the Act is, and I have no doubt about it, that to avoid this very type of situation which has arisen in this case that this far-reaching piece of legislation came into being to govern all aspects of the industry and giving, inter alia, the Tribunal the widest possible powers ...’

The particular powers referred to in the Tribunal’s decision are those conferred under Sections 105(1)(d) and 117 of the Sugar Industry Act (Cap.206). So far as relevantpresent sent purposes Section 105(1)(d) empowers the Tribunal `... in relation to any proceedings with respect to an industrial dispute ...’ (to) `award compeon in respect of any contraontravention ... of any term of a Collective Agreement’.

Section 117 on the other hand, generally ems the Tribunal `in making an award ...’ (to) `... include in the award any matter or thing which the Tribunal thinks necessary or expedient, in particular in the case of proceedings relating to an industrial dispute, for the purpose of preventing or settling the matter in dispute or of preventing further disputes.’

p class=MsoNormal stal style="text-align: justify; margin-top: 1; margin-bottom: 1"> It is quite unnecessary for me to add to the above dicta wI respectfully agree with in general. Having said thad that how ver, if the particular powers of the Tribunal under Section 105(1)(b) ; (c) & (d) in dealing with an industrial dispute referred to it, are not to be subsumed by the generalr conferred under Sectioection 117, then there is in my view, a need to construe the provisions as complementing each other and/or intended to cover different things.

As was said by the Fiji Court of Appeal in Dharam Lingam Reddy v. Pon Samy (1982) 28 F.L9 at p.78 :

`It is clear ... that where there is a particular enactment and a general enactment in the same statute and the latter taken at its most comprehensive sense would over-ride the former, the particular enactment must be operative and the general enactment must be taken to affect only the other parts of the statute to which it may properly apply. This is one applin of the the maxim generalia specialibus non derogant.’

In the present context I am satisfied that the Tribunal’s powers under Secti7 are only exercisable able where the Tribunal `make(s) an award’ under Section 105(1)(b) and not when it `award(s) compensation’ under Section 105(1)(d). I sas because the power uner under Section 117 is not `(to) an award `(to) include in the award [made under Section 105(1)(b)1)(b)] any matter or thing ...’. In other words, applying the above `maxim’, I am firmly of the view that Section 117 has no application to an award of compensation which is specifically dealt with under Section 105(1)(d).

In the present case it is sufficiently clear from the Tribunal> decision that monetary compenn was awardawarded undd under Section 105(1)(d) pursuant to its earlier finding that the Corporation had breached the terms of the Collective Agreement, and further, that the inclusion of `an element of deterrence ...’ `... in reliance on Section 117 of the Act’. This the Tribunal was not empowered to do on the above construction of the Sections.

In the present case the Tribunal has not made entirely clhe amount which it considers would fairly compensate the `old-hands’ for the loss (if any) that they might have sustained as a result of the Corporation’s breaches of the Collective Agreement although it is probablt by no means certain, that `... one week’s pay’ of the total compensation aion awarded to each `old- hand’ is referable to that particular breach. As to the bali.e. t/b> three weeks pay, that must be attributable to the breach of the `Changes in Conditions’ clause and `... the element of deterrence’.

In all the circumstances bearing in mind that the oration’s so-called breaches of the Collective AgreeAgreement might be characterised as being based upon a reasonable albeit flawed interpretation of the particular terms, I am satisfied that the Tribunal in including an `... element of deterrence’ in its award, committed >`error in law’ and exceeded its jurisdiction.

Accordingly assuming that the Tribun/b> construction of Clause C(1)(d) and the `Changes in Conditions’ cla> clause of the Collective Agreement are correct, the monetary compensation awarded must be and is hereby reduced to one and a half (1 ½) weeks pay.

The Corporation having substantiaucceeded in its appeal is awarded costs summarily assessed at $500.00.

D.V. Fatiaki

JUDGE

At Suva,

19^th July, 2000

HBA0029J.98S