State v Permanent Secretary for Labour and Industrial Relations, Ex parte Colonial Fiji Life Ltd [2002] FJHC 283; HBJ0018.2001 (1 March 2002)

IN THE HIGH COURT OF FIJI
AT SUVA
JUDICIAL REVIEW

ACTION NO. HBJ0018 OF 2001

THE STATE

V

THE PERMANENT SECRETARY FOR
LABOUR AND INDUSTRIAL RELATIONS

EX-PARTE:

COLONIAL FIJI LIFE LIMITED

G.E. Leung and J. Madraiwiwi for the Applicant
J. Udit for the Respondent

Dates of Hearing and Submissions: 15th June, 13th, 27th September 2001
Date of Judgement: 1st March 2002

JUDGMENT

On 8th October 1999 the then Permanent Secretary for Labour and Industrial Relations issued a Compulsory Recognition Order directing the Colonial Group which included the Applicant but excluded the National Bank of Fiji Ltd. to accord the Fiji Bank Employees’ Union (now the Fiji Bank and Finance Sector Employees’ Union) recognition for the purposes of collective bargaining.

On the 6th of April 2001 the Applicant wrote to the Permanent Secretary for Labour and Industrial Relations (PSLIR) seeking to formally withdraw compulsory recognition to the Union on the ground that for the 6 month period ending 2 months before the date of the letter, membership of the Union had fallen below the statutory requirement of 50% of all employees of the Colonial Group which comprise Colonial Mutual Life Assurance Limited (“CMLA”) and Blue Shield (Pacific) Insurance Limited (“Blue Shield”). Colonial Fiji Life Limited, the Applicant, is the successor to CMLA under the Colonial Fiji Life Act No. 12 of 1999, the commencement date of which was 30th November 1999.

Under Section 10 of the Trade Unions (Recognition) Act 1998 a registered Trade Union which is entitled to recognition under Section 4(3) of the Act for the purposes of collective bargaining ceases to be so entitled if the Permanent Secretary, on an application by the employer, determines that over a period of 6 months ending not more than 2 months before the date of the application , the average number of persons in the employment of the employer was less than 50% of the average number of persons who were eligible for membership in the Union.

The Permanent Secretary rejected the application on the 30th of May 2001 on the ground that the Compulsory Recognition Order of the 8th of October 1999 did not apply to the Applicant.

The Applicant now seeks Judicial Review of that decision which I am satisfied was wrong, first on the ground that there was clear evidence that membership of the Union with the Applicant had fallen below the 50% level stipulated in the Trade Unions (Recognition) Act and secondly because Section 5(2) of the Colonial Fiji Life Act makes the Applicant the lawful successor of CMLA.

The title of the Colonial Fiji Life Act states that it is an Act:

“To provide for the vesting of life insurance and incidental business carried on by the Colonial Mutual Life Assurance Society Limited in the Fiji Islands in Colonial Fiji Life Limited and for related purposes.”

Section 5(2) reads:

“At the appointed time, all contracts, agreements, conveyances, deeds, leases, licences and other instruments or undertakings entered into by or made with or addressed to CMLA (whether alone or with any other person) relating to the business in force immediately prior to the appointed time, to the extent that they were before that time binding upon or enforceable by or against CMLA, become binding and of full force and effect in every respect in favour of or against CFL as fully and effectually as if, instead of CMLA, CFL had been a party to them or bound by them or entitled to the benefit of them.”

Put simply this means that as from the date on which the Act came into operation namely 30th November 1999 the Applicant stood in the shoes of CMLA in relation to the Compulsory Recognition Order No. 11 of 1999. In my judgment therefore the Respondent committed an error of law. Had he properly considered the above statutory provisions the only reasonable conclusion he could have reached was that Colonial Fiji Life Limited was the legal successor of CMLA.

After these proceedings were launched but before I granted leave to the Applicant to apply for Judicial Review on the 15th of June 2001 the parties resolved their differences. On the 8th of June 2001 the Applicant and the Fiji Bank and Finance Sector Employees’ Union agreed to conclude a Collective Agreement, one of the effects of which was that the Applicant and its various subsidiary companies agreed to recognise the Union as the representative of the employees of the Applicant for the purposes of collective bargaining relating to salaries and conditions of employment. In a press release on the 8th of June 2001 the parties stated that they were committed to improve future industrial relations through discussion and dialogue.

That one might have thought would have put an end to this litigation but regrettably it did not. In a written submission of the 13th of August 2001 the Applicant requested the Court to quash the decision of the Respondent and to declare that it was unlawful in that he failed to take into account Sections 4, 5 and 7 of the Act and the reduction to less than 50% of the staff of the Colonial Group as members of the Union.

Not unnaturally the Respondent opposed this submission on the ground that matters formerly in dispute between the parties had by then been amicably resolved by the Memorandum of Agreement previously mentioned. The Respondent therefore submitted that there was no longer any live issue between the parties; I agree.

Nevertheless in a further submission of the 27th of September 2001 the Applicant’s solicitors stated that they had received no instructions to withdraw the application for Judicial Review. In effect they wished the Court to declare that the Respondent from the beginning was wrong in refusing to de-recognise the Union as the employees’ representative for the purposes of collective bargaining.

Counsel for the Applicant submitted that the Respondent had at all times been obtuse. I grant, as indeed the Respondent himself now accepts, that he was wrong in refusing the request of the Applicant for de-recognition. I also accept that a person in the position of the Respondent has a responsibility to be familiar with all legislation affecting the area of industrial relations including, for example, the Act making the
Applicant the legal successor of the Colonial Mutual Life Assurance Society Limited in the Fiji Islands with the consequences following from that set out in the Act, in particular Section 5(2).

In my judgment therefore the proper course for the Applicant to have followed once it had entered into the Agreement of the 8th of June 2001 was to attempt to negotiate settlement of the litigation with the object of obtaining an order by consent granting Judicial Review and quashing the decision of the 30th of May 2001. It reflects no credit on the Applicant that this course was apparently not even attempted. Reading the Respondent’s submission I would be most surprised if the Respondent would not have agreed to such a proposal.

The result is in my view that the time of the Court has been unnecessarily taken up by having to consider the submissions made by the parties.

As I said at the beginning of this Judgment the Applicant must succeed and is entitled to an order for certiorari quashing the decision of the 30th of May 2001 but it seems to me it has won a Pyrrhic victory. In the circumstances I decline to make any order for costs.

JOHN E. BYRNE
JUDGE