IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 39 OF 2001S

THE STATE

v.

ARBITRATION TRIBUNAL
First Respondent

and

AIRPORTS FIJI LIMITED
Second Respondent

ex parte

FIJI PUBLIC SERVICE ASSOCIATION
Applicant

H. Nagin for the Applicant
J.J. Udit for the First Respondent
S. Sharma for the Second Respondent

JUDGMENT

The Applicant (the Union) pursuant to leave granted on 18 April 2002 moves for judicial review of an award of the Permanent Arbitrator (J. Semisi Esq – the PA) dated 30 August 2001.

The proceedings are not correctly intituled. The so-named Second Respondent (AFL) is not a party against which any order of this court could be made in these proceedings. It is an interested party. Nothing, however, turns on this misdescription which is only noted for the purposes of accuracy.

The principal papers filed are as follows:

(i)	Affidavit of Rajeshwar Singh, the Union’s General Secretary, in support, 14 November 2001;
(ii)	Ashok Nath, of AFL, in answer, 22 December 2001;
(iii)	Record of the proceedings of the Arbitration Tribunal, 24 July 2002;
(iv)	Written submissions filed by Counsel for the Union, 22 August 2002;
(v)	Written submissions filed by Counsel for AFL, 29 September 2002; and
(vi)	Supplementary written submissions filed by counsel for AFL, 8 November 2002.

On 7 June 2001 the Union reported a trade dispute to the Permanent Secretary for Labour and Industrial Relations, in accordance with Section 3 of the Trade Disputes Act (Cap. 97) (see Exhibit 1 in the record, the pages of which unfortunately, but not untypically, are unnumbered).

On 20 July 2001 the Permanent Secretary referred the dispute to the PA under the provisions of Section 6 of the Act (document B in the record).

On 21 July the PA convened a preliminary hearing and it was then agreed only to proceed with the first paragraph of the terms of reference which, after an agreed amendment by the parties reads as follows:

“(1)	AFL’s action to suspend and terminate without pay for six employees named K.S. Chetty, Satish Chand, Livai Rokoleka, Sevanaia Tale, Sakiusa Naisavoi and Luke Navuda in the Projects Section with effect from 9 May 2001. The Association (the Union) claims that action by AFL is unfair, harsh and unjustified and therefore seeks that the suspension be uplifted and salaries restored from the date of suspension.”

On 21 July it was agreed that the hearing proper would commence on 25 July. It was also agreed that both the Union and AFL would file preliminary written submissions with the tribunal. The hearing (including a site inspection) lasted from 25 July to 29 July. The Award is the final document in the record.

The PA came to the conclusion that AFL had:

“… failed to establish procedural fairness and [had] also failed to prove that the grievors’ conduct amounted to serious misconduct or was a serious breach of the terms and conditions of employment.”

The PA did not proceed to order AFL to reinstate the grievors. Instead, he concluded that reinstatement would be “wholly inappropriate” and he ordered AFL to pay the grievors six months salary by way of compensation for the loss of their jobs.

As appears from the Union’s supporting affidavit and the Order 53 statement the first ground of complaint by the Union (and the only ground advanced by Mr. Nagin) was that the PA:

“… erred in law in holding the CAAF/FPSA Collective Agreement of 7th August 1999 was not binding on AFL despite the fact that there was overwhelming evidence to the contrary …”

It will immediately be noticed that neither paragraph (1) of the terms of reference set out above nor the PA’s conclusion include any reference to a CAAF/FPSA Collective Agreement (the CA) and therefore a brief explanation of the background to the present proceedings is necessary.

The supplementary submission filed by AFL annexes a copy of judgment of the High Court at Lautoka (JR 015 of 1998L – Madraiwiwi J) dated 30 November 1998. As may been seen from this judgment the year 1996 saw the enactment of the Public Enterprises Act (35/96). In January 1998 the Minister for Public Enterprises published a re-organisation charter which had the effect of transferring most of the assets and responsibilities of the Civil Aviation Authority of Fiji (CAAF) to AFL which was a new entity created pursuant to this Act.

On 3 June 1998 AFL was incorporated as a government commercial company. Although I have not been able to discover the precise date on which it began operating it appears from a letter of the Minister of Commerce, Industry, Cooperatives and Public Enterprises dated 2 December 1998 that the formal separation of CAAF and AFL took place in about January 1999.

In order that the new company be able to operate it was necessary to transfer a number of staff and other employees from CAAF to AFL. CAAF was a government department and its employees were civil servants. Many belonged to the Union. Naturally, the Union wished to continue representing these employees when they transferred to AFL. The Union wished AFL to step into CAAF’s shoes as the other party to the CA which the Union had negotiated with CAAF as late as 7 August 1998. A copy of the CA is exhibit 6 in the record. It is interesting to note that the preamble to the CA reads:

“this agreement is made and entered into the seventh day of August 1998 by and between the Civil Aviation Authority of Fiji (hereinafter referred to as “the Authority” or any successors or assigns thereto and the Fiji Public Service Association (hereinafter referred to as “the Association”) a Trade Union registered under the Trade Unions Act, or any successor or assigns thereto, similarly registered. Whereby both parties hereby agree as follows:” (emphasis added).

Whether because of Article B of the CA which required CAAF to recognise the Union as the:

“sole representative of and the agent for the purposes of collective bargaining in all matters pertaining to the rates of pay, hours of work, discipline and all other terms and conditions of employment of salaried staff (hereinafter also called “the employees”) of the Authority…”

or for some other reason or reasons AFL declined to accept that its incorporation and succession to CAAF had the consequence that AFL was substituted for CAAF as the other contracting party with the Union to the CA.

The Union commenced proceedings in the High Court at Lautoka which resulted in the judgment of Madraiwiwi J already referred to. The Union sought a number of declarations, principally that the CA between the Union and CAAF was binding on AFL.

Madraiwiwi J concluded his judgment with the following words:

“the Court is of the opinion that given the general intention of the Act as has been stated elsewhere surely the [AFL] must be at liberty to enter into such arrangements as would best ensure its viability as a commercial enterprise. In such circumstances the collective agreement between [the Union] and [CAAF] is not binding on [AFL].”

I now return to the proceedings before the PA.

In its preliminary submission (Document C in the record) pages 9, 12, 13, 14, 15, 17, 18 and 19 the Union referred to various aspects and incidents of its dispute with AFL over the question of its recognition of the CA with CAAF. In paragraph 6.15 it concluded:

“… the FPSA therefore submits that the CAAF/FPSA Collective Agreement of 7 August 1998 is binding on AFL.”

In its final submission dated 15 August 2001 (exhibit 28 in the record) the Union again submitted:

“3.1.3 – the six employees listed above were employed by AFL on the terms and conditions of service they had with the CAAF prior to the restructuring of 12 April 1999. Those terms and conditions were the CAAF/FPSA Collective agreement of 7 August 1998.”

and:

“3.1.7 – the employees were therefore covered by disciplinary procedures under the CAAF Collective Agreement.”

In paragraph 10.8 the Union requested the PA:

“to reaffirm the recognition of [the Union] in order to bring about harmonious relationship so that further acrimonious disputes do not occur and disagreements be resolved within the ambit of the existing collective agreement.”

Document H in the record is the final written submission by AFL. Although much of the submission addressed the merits of AFL’s decision to dismiss the 6 grievors the question of AFL’s recognition of the CA was also dealt with and described as a “basic issue”.

In paragraphs 4.1 (k), 4.1 (l) and 2.1.12 (a) and (b) of the schedule AFL denied that the Union represented the grievors. It relied on the judgment of Madraiwiwi J and asserted that there was no CA between itself and the union upon which the six grievors could rely.

On pages 3, 4 and 5 of his Award the PA referred to the Union’s claim that AFL was bound by the CA reached with CAAF and AFL’s rejection of that position. On page 7 he considered the matter further. In the penultimate paragraph of page 7 accepted that whether or not AFL was bound by the CA fell outside his jurisdiction. He then however went on to express the view that it would “be useful to briefly address this issue since the [Union] has made submissions on this”. In the final paragraph on page 8 of his Award the PA concluded:

“I do not accept that the CAAF agreement which was negotiated by the [Union] with CAAF through implication can bind AFL, which is a separate legal entity to that of CAAF.”

He then went on to rule that:

“In the absence of an operative Collective Agreement and there being no contracts of service the six grievors purported terminations will have to be decided on the principles of common law pertaining to employment and our relevant statutes.”

As has been seen, the PA decided that the grievors had not in fact been fairly dismissed and he awarded then six months salary by way of compensation. Although paragraph 10 (c) of the Order 53 statement sought reinstatement of the grievors that claim was not pursued.

At this stage a brief recapitulation may be helpful.

The Union represented six grievors before the AT. It complained that their dismissals were unfair. The PA’s task was to determine whether this was the case. He decided in their favour. In the present proceedings the Union seeks a declaration, not that the conclusion reached by the PA was wrong but that he erred in the method by which he reached it.

As I understood Mr. Nagin’s premise it was that the PA erred in law in deciding that the grievors were not covered by the CA. The conclusion is less easy to state.

Paragraphs 10 (a) and 10 (b) of the Order 53 Statement seek:

(i)	An order of certiorari “to remove the relevant part of the award” for it to be quashed; and
(ii)	A declaration that the CA between CAAF and the Union is binding on AFL.

The reliefs sought are somewhat unusual. This Court is not, as is usually the case, being asked to quash the Award in its entirety. It is not being asked to quash the Award in its entirety for the obvious reason that the AT actually found in favour of the grievors, at least to the extent that he found their dismissals to be unfair. The grievors are not pursuing an order of reinstatement and in fact are not seeking anything from this Court at all. What instead is being sought is being sought by the Union which is seeking a finding that part of the Award, presumably “the relevant part of the award”, involved an error of law.

The civil courts exist to uphold rights and to right wrongs. Where a party considers that it has suffered a wrong it may come to the court to have that wrong righted. Where appeal is available the court looks at the merits of the decision appealed against. In judicial review it looks at the method by which the decision was reached. While it is true that the court will quash a challenged decision on the ground of error of law I do not think that an alleged error of law on the way to reaching what is not disputed to be a correct decision provides a ground or reason for quashing that decision or for commencing proceedings merely for a declaration that an error of law has occurred.

In my opinion the Union here attempted to use the arbitration proceedings, which were primarily concerned with a case of alleged unfair dismissal, to avoid the earlier findings of the High Court at Lautoka which had gone against it. I believe that this was an improper use of the Trade Disputes Act. In my opinion the PA was right to take the status of the CA to be that as found by the Lautoka High Court. If he erred in law at all then it was in allowing argument to be led before him to the effect that he was not bound by the High Court’s ruling.

If the Union’s position was that the PA could not properly enquire into the circumstances of the dismissals without the legal status of the CA first being put beyond doubt then in my view that status should first have been conclusively determined by the commencement of fresh proceedings in the High Court where the legal consequences of the matters advanced as constituting de facto recognition could have been fully examined and argued. It should however be noted that the Union has not suggested that a finding by the PA or the High Court that the CA was binding on AFL would in any way have affected the conclusion that the six grievors were unfairly dismissed.

In my opinion the PA did not err in law in refusing to accept that the CA was binding on AFL. The question whether or not the CA is in fact binding on AFL was not before me and I therefore decline to make any declaration in relation to it.

The motion for Judicial Review fails and is dismissed.

M.D. Scott
Judge

5 March 2003