State v Permanent Secretary for Labour, Industrial Relations and Productivity [2004] FJHC 166; HBJ0032J.2003S (17 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 32 OF 2003

Between:

STATE

v.

1. PERMANENT SECRETARY FOR LABOUR
INDUSTRIAL RELATIONS AND PRODUCTIVITY

2. MINISTER FOR LABOUR, INDUSTRIAL
RELATIONS AND PRODUCTIVITY
Respondents

Ex-parte: BUILDING CONSTRUCTION & TIMBER WORKERS
AND ALLIED UNIONS
Applicant

COVEC (FIJI) LIMITED
Interested Party

Mr. Vijay Naidu for the Applicant
Ms. T. Vuibau for 1st and 2nd Respondent
Mr. K. Muaror for Interested Party

JUDGMENT

This is an application for judicial review pursuant to Order 53 r.3(2) of the High Court Rules, 1988 by Building Construction & Timber Workers and Allied Union (the ‘applicant’) in respect of the decision of the Permanent Secretary for Labour and Industrial Relations (the ‘1st Respondent’ – ‘RI’) in accepting the Trade Disputes report filed by Covec (Fiji) Limited (the – ‘interested party’ - IP) and referred it to the Disputes Committee for settlement AND decision of Minister for Labour, Industrial Relations and Productivity (the ‘2nd Respondent’- the ‘Minister’) to declare balloted industrial action of members of Applicant employed by Interested Party unlawful.

The reliefs sought

The reliefs sought by the applicant are as follows:

(a) AN ORDER OF CERITIORARI to quash the decision of the 1st Respondent in accepting a trade dispute report of 15th August 2003 lodged by the Interested Party and referring it to a Disputes Committee.

(b) AN ORDER OF CERITIORARI to quash the decision of the 2nd Respondent in ordering that the continuance of the balloted strike of members of Applicant employed by Interested Party unlawful and declaring the strike unlawful on the 20th day of August 2003.

(c) A DECLARATION that Interested Party did not comply with Section 3(3) of the Trade Disputes Act.

(d) A DECLARATION that the 1st Respondent should have required of the Interested Party to comply with Section 3(3) of the Trade Disputes Act before accepting the dispute put forward by the Interested Party as a dispute.

(e) A DECLARATION that the 1st Respondent should have informed the Applicant of the dispute reported to it by the Interested Party and inviting comments thereon before adjudicating whether the dispute reported by the Interested Party was a dispute of rights under the Collective Agreement or not.

(f) A DECLARATION that the 1st Respondent did not grant rights of natural justice to the Applicant by requiring it to comment on the dispute reported to 1st Respondent by the Interested party.

(g) A DECLARATION that the dispute reported by the Interested Party was not a trade dispute under the provisions of the Trade Disputes Act and its acceptance by the 1st Respondent was unlawful, in excess of jurisdiction, unreasonable and in breach of natural justice.

(h) A DECLARATION that the order prohibiting the continuance of the strike and declaring it unlawful by the 2nd Respondent of 20th August 2003 was unlawful, in excess of jurisdiction and irrational as the dispute reported to the 2nd Respondent by the 1st Respondent was not a trade a dispute as defined under the provisions of the Trade Dispute Act and the procedures of fair hearing was not followed.

(i) An injunction ordering the 1st Respondent to require the interested party to comply with Section 3(3) of the Trade Disputes Act.

(j) Stay of decision of 1st Respondent of 19th August 2003 referring report of dispute by Interested Party to a Disputes Committee.

(k) Stay of decision of 2nd Respondent of 20th day of August 2003 ordering continuance of the balloted strike of members of Applicant employee by Interested Party unlawful and declaring said strike unlawful.

(l) General, Aggravated and Penal damages.

(m) Costs on solicitor – client indemnity basis.

(n) Any other orders and or Declarations the Honourable Court deems just.

Grounds for review

Grounds on which review is sought are stated by the applicant as follows:

(a) The Applicant was denied his rights to a fair hearing on the issue as to whether or not the dispute reported to 1st Respondent was a dispute of rights to be accepted as a trade dispute by 1st Respondent.

This was done by

(i) Interested Party not complying with Section 3(3) of the Trade Dispute Act to provide a copy of its report of dispute to Applicant.

(ii) Before 1st Respondent accepted such dispute as a trade dispute the Applicant had a legitimate expectation that 1st Respondent would require compliance with section 3(3) of Trade Dispute Act before he decided whether dispute reported by Interested Party was a trade dispute or not.

(b) The 1st Respondent did not take into account the relevant considerations of

• (i) had the Interested Party complied with section 3(3) of the Trade Disputes Act by supplying copy of its report of dispute to Applicant
  
• (ii) had Applicant, if received such report, had adequate time to consider the report and make submission to 1st Respondent as to whether or not the report was a trade dispute or not thereby denying Applicant’s right to fair hearing on the issue.
  

(c) The 1st Respondent did not take into account the relevant consideration that the dispute reported to it by Interested Party was not a dispute of rights so as not to be a trade dispute.

(d) The 2nd Respondent did not take into account the relevant consideration that the dispute accepted by the 1st Respondent was not a dispute of rights and not in compliance with section 3(3) of Trade Disputes act. He therefore acted in excess of jurisdiction to declaring the balloted industrial action by members of Applicant employed by Interested Party to be unlawful.

Decisions impugned

The decisions which are impugned are as follows:

(a) The decision of the Permanent Secretary for Labour, Industrial Relations and Productivity (the “PS”) dated 19th day of August, 2003 accepting a letter dated 15th day of August, 2003 from the Interested Party, Covec (Fiji) Limited, as a trade dispute.

(b) The decision of 20th day of August, 2003 of Minister for Labour, Industrial Relations and Productivity (hereinafter the “Minister”) in ordering that the continuance of the balloted strike of members of Applicant employed by Interested Party unlawful and declaring the strike unlawful on the 20th day of August, 2003.

Background to the case

The background facts leading to the two decisions have been clearly put by the applicant in its written submissions which are as follows:

The Interested Party unilaterally laid off sixty-one (61) of its employees being members of Applicant Union without following procedures in Collective Agreement between itself and the Applicant.

The Union reported a dispute of rights based on the Interested Party’s breach of the said Collective Agreement and the 1st Respondent accepted such as a trade dispute but sent the matter back to be discussed between the Applicant and Interested Party.

The Interested Party refused to discuss and on such deadlock the Union members resolved by ballot under supervision of Ministry of Labour to take industrial action, which was overwhelmingly passed.

The Interested Party thereupon reported a dispute to 1st Respondent without furnishing copy of the Report to the Applicant as required under Section 3(3) of the Trade Disputes Act.

The 1st Respondent without inquiring whether Interested Party has complied with such requirement of requiring compliance or informing Applicant of same accepted the dispute reported as dispute of rights without referring to what rights in the Collective Agreement have been breached or being disputed about.

The 2nd Respondent declared the balloted Industrial Action unlawful.

The dispute between the Applicant and the Interested Party is contained in paragraph 3 to 12 and paragraphs 15 to 19 of the Affidavit of John Alexander sworn on the 27th day of August, 2003 and the relevant paragraphs are reiterated.

In Summary therefore the Interested Party reported a trade dispute which was accepted by the 1st Respondent Contrary to the procedural requirement contained in Section 3(3) of the Trade Disputes Act.

Applicant’s submission

In its submission, in short the applicant alleges that the R1 accepted a ‘trade dispute’ from the IP without first ascertaining whether s3(3) of the Trade Disputes Act has been complied with or not resulting in the applicant being denied the opportunity of a fair hearing as to the acceptance of the existence of a trade dispute by the Ministry and ‘as to whether or not the dispute was just a dispute or a dispute of rights footed in the said Collective Agreement between the Unions and the Company'’(affidavit of John Alexander). Secondly, it alleges that the Minister’s decision declining the Union’s strike unlawful was ‘unlawful, in excess of jurisdiction and irrational’.

In the Chronology of Events it is stated as follows:

15th August 2003 - Letter from Company to Ministry reporting the existence of a trade dispute with Union.

18th August 2003 - Ministry wrote to Union accepting report of a trade dispute and that it would be referred to a Disputes Committee.

19th August 2003 - Ministry wrote to Company accepting the trade dispute between it and the Union referring the said dispute to a disputes committee.

Ministry Directed the Union to advise its member to resume duties.

20th August 2003 - Ministry wrote to Union annexing Order of Minister proclaiming unlawful the Union members’ strike

The applicant submits that the acceptance by R1 of ‘a purported dispute was illegal under the Trade Disputes Act as the dispute referred by the Company to R1 was not a dispute of rights and in breach of Union members rights to benefit from their Constitutional rights to Collectively bargain or after a deadlock and ballot taken for industrial action’. (Affidavit of John Alexander).

The applicant submits that the decision of the Minister of 20 August 2003 is in excess of jurisdiction. He should have ascertained whether it was a ‘dispute of right’ and whether the said dispute complied with s3(3) of the Act. The Minister acted ultra vires in declaring the strike unlawful.

Interested Party’s (company’s) submission

The IP refers the Court in its submission to sections 3 and 4 of the Act which in s3 sets out the requirement of reporting of trade disputes and in s4 ‘steps to be taken by the Permanent Secretary.’

The IP submits that all that s3 does is to require the party reporting to furnish a copy urgently to the other side. It is not intended to be the commencement of the steps to be adopted by the Ministry in determining the dispute between the parties, this is done under section 4 because section 3(3) is only directory in nature and procedural in content, it does not go to the heart of the decision-making process. It therefore submits that its breach is not relevant to and therefore not detrimental to the Union’s interest until the Ministry has gone through the steps envisaged under section 4.’

On the second ground impugning the decision of the Minister the IP submits that non-compliance with s3(3) does not seek to pre-empt the procedures under s4. It submits that the predicament of the Union has been caused by its uncooperative attitude emanating from the alleged breach of section 3(3) in particular its reference to nominate a person to the disputes committee.

At the time of its submissions, on 6 July 2004, the learned counsel for the IP, Mr. Muaror stated that:

“... during the currency of its involvement with the Company leading up to the strike action, the overwhelming majority of the striking workers had not only returned to work but also resigned from the Union and to date the Company has neither reported further disputes or similar disruption to its operation which is now progressing extremely well.”

Respondents’ submission

The respondents in their submission deny that the R1 was procedurally unfair or that he did not take into account relevant consideration. That the applicant does not have a legitimate expectation that R1 would require compliance with s3(3) before he decided whether the dispute reported by the IP was a trade dispute or not. She said that R2 did not act ultra vires.

It is submitted that it is not the duty of the R1 to furnish a copy of the report to each party to the dispute. The R1 upon receiving the report is only obliged to inform the parties that he accepts or rejects the report.

Counsel submitted that the R2 did not act ultra vires in declaring the strike of the applicant’s members unlawful. She said that there was an existing trade dispute for resolution before the Disputes Committee whilst the workers were still on strike. This it is submitted is a clear breach of the Act for under s5A(6) and (7) neither an employer nor an employee can take away any such action which results in disruption to the work or employment. Any such action amounts to an offence.

Counsel submits that in this case, statutory provision disallows disruption to work or employment where a trade dispute is before a settlement machinery under the Act. She says that dispute was before the Disputes Committee, the applicant refused to participate, thus resulting in the Ministerial Order declaring the strike unlawful as the matter in dispute was already before the Disputes Committee.

For the above reasons counsel submits that the application for judicial review be dismissed as the R1 in arriving at his decision to accept the report of the trade dispute of the Interested Party was procedurally fair and that R2 in arriving at his decision to issue the Ministerial Order declaring the strike unlawful acted in accordance with the provisions of the Trade Disputes Act.

Consideration of the application

I have given careful consideration to the application and have considered the counsels’ written submissions.

The main contention of the applicant is that under section 3(3) of the Trade Disputes Act (the ‘Act’) the RI should have furnished the applicant with a copy of their reporting a trade dispute as this is a procedural requirement. It also complains that before deciding whether or not to accept the trade dispute from the applicant in compliance with the said section 3(3) he should have ascertained if a copy of the dispute was furnished to the applicant or not.

The applicant says that this was not done and says failure to comply has resulted in procedural irregularity with the applicant being denied a fair hearing.

The applicant says that had it been given its right of hearing it would have pointed out that it had the right to go on strike and that in the deadlock itself which was declared by IP the latter had not followed all the grievance procedures under the Collective Agreement.

The respondents deny all the allegations.

Principles pertaining to judicial review

In considering this ‘application’ for judicial review there are certain principles pertaining to judicial review which ought to be borne in mind.

Judicial review is a review of the manner in which the decision was made. It is concerned “not with the decision but with decision-making process”. Unless that restriction on the power of the Court is observed, the Court will, in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power” (Lord Brightman in Chief Constable of North Wales Police v. Evans [1982] UKHL 10; [1982] 1 W.L.R. 1155 at 1173]. Further in that case Lord Hailsham at 1160 commented on the purpose of the remedy under Order 53 as follows, which is apt:

“This remedy, vastly increased in extent, and rendered, over a long period in recent years, of infinitely more convenient access than that provided by the old prerogative writs and actions for a declaration, is intended to protect the individual, judicial, quasi-judicial, and, as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making the decisions. It is intended to see that the relevant authorities use their powers in a proper manner.”

Furthermore, it should be noted that in a judicial review the Court is “not as much concerned with the merits of the decision as with the way in which it was reached” (Evans, supra at 1174). Also, as put by Lord Templeman in Reg. v. Inland Revenue Commissioners, Ex-parte Preston [1984] UKHL 5; (1985) A.C. 835 at 862:

“Judicial review is available where a decision-making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached, or abuses its powers.”

As was said by the Fiji Court of Appeal in The Permanent Secretary for Public Service Commission and The Permanent Secretary for Education, Women & Culture exp. Lepani Matea - Civil Appeal No. ABU0018 of 1998S at 12 that the Court:

“must not do is to determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits.”

One of the purposes of judicial review is to ensure that that an applicant is given a fair treatment by the decision-making body in question. The judicial review jurisdiction is supervisory in nature. The Court confines itself to the question of legality when reviewing a decision.

Illegality

Under this head of review the relevant section of Trade Disputes Act (the Act) is section 3(3) which provides:

“The party reporting a trade dispute shall without delay furnish by hand or by registered post a copy of the Report of the dispute to each party to the dispute.”

The applicant union says that s3(3) of the Act was not complied with as no report of the alleged trade dispute was given to it although it was sent to R1.

It says that before proceeding under s4 to hear the parties to settle the dispute it was the R1’s duty to ascertain whether the report was given to it or not.

However, R1 denies this allegation and states in his affidavit (para 18) that

“the Ministry have complied with the legal requirements in connection with the need to inform the parties to the dispute”. He goes on to state further (para 20) that “the report was sent to the Union, it was given the opportunity to be heard and that the dispute was a dispute of right as it involved a breach of Collective Agreement”.

In fact R1 attached a copy letter dated 19 August 2003 to his affidavit informing the applicant union of the trade dispute and informed it that:

“the dispute has been referred to a Disputes Committee for a decision and in that connection you are to direct your striking member workers to resume duties in accordance with the provisions of the Trade Disputes Act, Cap. 97.”

He further stated that the:

“Ministry formally requested the Union to nominate an independent person to be their representative at the Disputes Committee level but they totally disregarded the formal request and refusal to nominate an independent person to represent them. Accordingly, the Disputes Committee could not be pursued and the matter had to be referred to Arbitration”.

Even R2 supported the R1 in the above respect.

Regarding notifying the report of dispute I have the Respondents’ assertion that it was the IP who should have complied with s3(3).

Granted that IP should have notified, on the facts and circumstances of this case as outlined above, it would have made no difference and it did not affect the applicant due to the alleged non-compliance. The applicant was notified by R1 for it was under s4 that R1 has to take the procedural steps and which he did. A disputes Committee was appointed but the applicant failed to cooperate.

In these circumstances the applicant’s submission that it was not heard or did not have a fair hearing holds no water and is without any merit. One has to look at all the facts and circumstances to decide whether the non-compliance under s3(3) was fatal to the case on hand. I find it was not such as to vitiate the decisions herein.

On this aspect it is important to bear the following extract from the judgment in Permanent Secretary for Public Service Commission & Another v. Lepani Matea - (Civil Appeal No.: ABU0018 of 1998) which is apt:

“There are numerous authorities establishing at Common Law, that where someone’s livelihood is at stake that person is entitled to a fair opportunity of a hearing unless the relevant legislation has clearly excluded it. There is a presumption that natural justice applies; or as Lord Reid put in Wiseman v. Borneman (1971) AC 297, the Courts supplement procedure laid down in legislation if the statutory procedure is insufficient to achieve justice and additional steps would not frustrate the apparent purpose of the legislation.”

Similarly in Salomi v. Mackellar (1997) 137 C.L.R. at 419 Gibbs J. made the following statements on the situation in which natural justice applies:

“The presumption that the principles of natural justice condition the exercise of a statutory power may apply to any statutory power which is apt to affect any interest possessed by an individual whether or not the interest amounts to a legal right or a proprietary or financial interest or relates to reputation. It is not the kind of individual interest but the manner in which it is apt to be affected that is important in determining whether the presumption is attracted.”

On the duty to act fairly, it has been succinctly stated by Lord Mustell in Doddy v. Secretary of State for the Home Department – (1998) 3 ALL E.R. 92 at 126 to which I referred in my judgment in State v. Permanent Secretary for Education, Women, Culture, Science and Technology Ex-parte Ram Autar (JR 21/95).

On ‘duty to act fairly’, it is important that I quote fully from Doddy (supra). It is as follows:

“What does fairness require in the present case? My Lords, I think it unnecessary to refer by name or to quote from, any of the often-cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive the following:

(1) Where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances.

(2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type.

(3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects.

(4) As essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken.

(5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result, or after it is taken, with a view to procuring its modification, or both.

(6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer.” (emphasis added)

On this aspect Mason J. in Kioa v. West 159 C.L.R. at 582 said that:

“It is fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it : Twist v. Randwick Municipal Council (82); Salemi [No. 2] (83); Ratu (84); Heatley v. Tasmanian Racing and Gaming Commission (85); F.A.I. Insurances Ltd v. Winneke (86); Annamunthodo v. Oilfields Workers’ Trade Union (87). The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.” (emphasis mine)

Mason J. goes on to say at 584 :

“The law has now developed to a point where it may be accepted that there is a common law duty to act fairly, in the sense of according procedural fairness, in the making of administrative decisions which affect rights, interests and legitimate expectations, subject only to the clear manifestation of a contrary statutory intention.” (emphasis added)

I have no reason to doubt the affidavit evidence of both R1 and R2. The applicant did have a fair hearing and in conformity with the principles in decided cases I do not find any procedural impropriety in this case.

That concludes my treatment of the first respondent’s decision. The case against him is dismissed as devoid of any merit.

As for the second respondent’s decision I find that s4 has been complied with and in the exercise of the powers vested in him under s6 of the Act, the Minister properly exercised his powers on the facts and circumstances of this case referring the case to Arbitration Tribunal and declaring the strike unlawful.

Conclusion:

To conclude, for the reason given hereabove the application for judicial review is dismissed with costs to the Interested Party and the Respondents to be taxed unless agreed.

D. Pathik
Judge

At Suva
17 November 2004