State v Chief Executive Officer, Ex parte Fiji Public Service Association [2004] FJHC 284; HBJ0005J.2004S (17 November 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ0005 OF 2004

Between:

STATE

v

THE CHIEF EXECUTIVE OFFICER FOR LABOUR,
INDUSTRIAL RELATIONS & PRODUCTIVITY

THE MINISTER FOR LABOUR, INDUSTRIAL
RELATIONS AND PRODUCTIVITY
Respondents

Ex parte:

FIJI PUBLIC SERVICE ASSOCIATION (FPSA)
FIJI TEACHERS UNION (FTU)
FIJI NURSING ASSOCIATION (FNA)
Applicants

Mr. V. Kapadia for the Applicants
Mr. J. Udit for the Respondents

JUDGMENT

A. The application and parties

An application for leave to apply for judicial review was on 23 February 2004 filed by the applicants pursuant to Order 53 r.3(a) of The High Court Rules 1988.

The applicants are Fiji Public Service Association (“FPSA”), Fiji Teachers Union (“FTU”) and Fiji Nursing Association (“FNA”).

The respondents are the Chief Executive Officer (‘CEO’) for Labour, Industrial Relations & Productivity and the Minister for Labour, Industrial Relations and Productivity (the ‘Minister’).

The Notice of Opposition to the application was filed by the respondents on 26 February.

B. Order granting leave

An order granting leave to apply for judicial review of the decisions dated 2 February 2004 and 5 February 2004 of the respondents respectively to refer to an Arbitration Tribunal for compulsory arbitration the ‘Trade Disputes’ between the applicants and the Public Service Commission was made on 5 March 2004. It was also ordered that the grant of leave shall operate as a stay of the said decisions and all proceedings thereunder pursuant to Or.53 r.3(8) of the High Court Rules until the determination of these proceedings.

C. Motion, affidavits and submissions

As required under Order 53 the applicants filed a Notice of Motion on 15 March which was made returnable for 23 March. An order was made for Affidavit in Reply to be filed by the Respondents within 28 days and Reply, if any, thereto within 21 days thereafter and matter adjourned to 20 May. On application further time was allowed to the respondents to respond and then adjourned to 30 June to fix a date for hearing.

On 30 June various orders were made for the filing of affidavits in reply and I have before me the following affidavits for my consideration and the written submissions from both counsel and the Open Court hearing for the judicial review took place on 23 August 2004:

(a) Answering affidavit of the Conciliator Surendra Shiudin filed 23 June

(b) Answering affidavit of the CEO Brian Singh filed 23 June

(c) Answering affidavit of the Minister Kenneth Zinck filed 23 June

(d) Affidavit in Reply of Rajeshwar Singh for the applicants filed 7 July

(e) Applicants’ submissions filed 14 July

(f) Respondents’ submissions filed 27 July

(g) Applicants’ Reply to Respondents’ submissions filed 6 August

D. Decisions impugned

The following decisions are impugned:

(i) The decision of the conciliator dated 2 February 2004 which reads (Annexure FPSA 7):

“Following a series of conciliation meetings held on 26th and 30th January 2004, where both parties failed to reach an agreement, I therefore declare the said dispute to have reached deadlock.”

(ii) Letter dated 5 February 2004 from CEO to Permanent Arbitrator referring dispute on 2003 by way of claims for compulsory arbitration on the Minister’s authorization in the following terms (Annexure FNA I):

“WHEREAS a trade dispute exists between the Fiji Nursing Association (hereinafter referred to as the “Association”) on the one part and Public Service Commission (hereinafter referred to as the “Employer”) on the other part.

AND WHEREAS, I, Brian Singh, Chief Executive Officer, Ministry of Labour, Industrial Relations and Productivity have referred the said trade dispute to the Minister for Labour, Industrial Relations and Productivity who has authorized me to refer such trade dispute to an Arbitration Tribunal for settlement pursuant to subsection 2(b) of Section 6 of the Trade Disputes Act, Cap. 97.

NOW THEREFORE, I do hereby refer the said trade dispute to the Permanent Arbitrator for settlement over the refusal on the part of the Commission to negotiate and conclude a COLA claim of 5% for its members and the payment of increment/SSPP in its Log of Claims lodged on 04th August 2003.

DATED AT Suva this 2nd day of February 2004.”

Similar letters dated 2 February were sent to FPSA and FTU but the reference of trade dispute to an Arbitration Tribunal for settlement was made pursuant to subsection 2(b) and 2(c) of section 6 of the Trade Disputes Act respectively.

E. The reliefs sought

The relief sought are as follows:

(a) certiorari to bring before this Court and quash the decisions of the CEO dated 2nd February 2004 in respect of FPSA and FNA and the decision dated 5th February 2004 in respect of FTU to accept and refer the Trade Disputes between the Applicants and PSC to an Arbitration Tribunal.

(b) certiorari to bring before this Court and quash the decisions of the MINISTER authorising the CEO to refer to an Arbitration Tribunal the Trade Disputes between the Applicants and PSC.

(c) interim stay upon leave being granted of the decisions of the CEO and the MINISTER to refer the Trade Disputes between the Applicants and PSC to an Arbitration Tribunal and all proceedings thereunder.

F. The grounds of review

The applicants have sought judicial review on a number of grounds and they are as follows:

(a) Illegality – Ultra Vires
(b) Mistake of Fact
(c) Not taking into Account relevant Considerations
(d) Misdirection of Law
(e) Frustrating the Policy of the Act
(f) Unlawful Dictation and Direction by the Minister to CEO
(g) Irrationality (Improper Motive and /or Purpose)
(h) Bad Faith
(i) Wednesbury Unreasonableness
(j) Procedural Irregularity alleging Bias and Legitimate Expectation.

G. Background facts

The undisputed background facts are as follows (as in Mr. Udit’s submissions p5-7):

(a) The Applicants namely, FPSA, FTU and FNA are all public sector Unions and are all members of the Confederation of Public Sector Unions (“CPSU”). FPSA is the Chair of CPSU.

(b) In 2003, each of the Applicants lodged a log of claim with PSC separately.

(c) The Applicants (“parties”) then entered into negotiations on the log of claims with PSC. In most of these negotiations, the Applicants were represented collectively by CPSU.

(d) The Applicants were unanimous in demanding a 5% COLA payment. PSC was proposing a 1% COLA and 1% Merit pay increase (“PSC proposal”).

(e) The disputes were referred by the CEO to the various parties to conduct meaningful negotiations to amicably resolve the dispute.

(f) However, by December 2003, the parties had not resolved their respective disputes.

(g) The Applicants then each reported a trade dispute to the CEO on the following dates:-

FPSA FNA FTU

27.12.03 07.01.04 27.12.03

(h) On 21st January 2004, CEO accepted the Applicants’ respective reports of a trade dispute and appointed a Conciliator.

(i) A series of conciliation talks were held.

(j) On 2nd February 2004, the CEO issued a letter each to the respective Applicants FPSA as FTU and on 5 February to FNA advising that the 2003 log of claims disputes had reached a deadlock.

(k) On 2nd February 2004, the CEO (as per Surendra Shiudin’s letter – see Affidavit of Rajeshwar Singh) referred the dispute to the Permanent Arbitrator to arrange for a hearing of the dispute and submissions of Award in due course.

(l) On 2nd February 2004, the General Secretary of FPSA gave Notice of Strike action to commence from 0800 hours 15 March 2003.

H. Circumstances giving rise to judicial review

The circumstances giving rise to judicial review arose out of a referral of the trade disputes to the CEO under s.3 of the Trade Disputes Act (the Act) by the Unions on the inability of the Unions and the Public Service Commission (the ‘Commission’) to resolve their log of claims for 2003 for 5% COLA and Merit Pay increase.

The sequence of events after referral are as hereunder (as set out in Mr. Kapadia’s written submission at pp3-4):

“Upon referral to the CEO of the trade disputes by the three Unions, the CEO pursuant to Section 4(1)(d) of the Act appointed Mr. Surendra Shiudin, Acting Principal Labour Officer to conciliate. See Annexure “FPSA 14”. The Conciliator met with the parties on the 22nd January 2004, 26th January 2004 and 30th January 2004. The Conciliator then declared that the disputes had reached a deadlock. The CEO wrote to the parties on the 2nd February 2004 and 5 February advising that the disputes had reached a deadlock. See Annexure “FPSA 7”. On the same day being the 2nd of February 2004, FPSA and FNA issued a notice of strike action as required under Section 16 of the Act. See Annexure “FPSA 8” and “FNA 2”. A list of all members together with their addresses were also sent with that letter to the CEO, Commission and all Ministries as required by Section 6 of the Act. The Commission and the various employers therefore were also notified. FPSA advised that they would commence strike at 800 hours on the 15th of March 2004 and FNA advised that they would commence strike on midnight the 1st March 2004. There was therefore notice of 28 days in respect of FNA and 42 days in respect of FPSA before strike action was to be taken, if at all. FTU not having any essential services members was not required to issue any strike notice but had contemplated giving at least 28 days notice in any event.

On the 2nd February 2004 the Respondents referred FPSA and FNA to compulsory arbitration under Section 6(2)(b) of the Act. See Annexure “FPSA 6”. On the 5th of February 2004 the Respondents referred FTU under Section 6(2)(c) of the Act to compulsory arbitration. See Annexure “FTU 1”. The referral to compulsory arbitration meant that pursuant to the provisions of Section 5(A)(6)(a) the Unions could not proceed with any other conciliation talks or proceed to strike action as that section prohibited the discontinuance or impedance of normal work either totally or partially in respect of a dispute referred to a tribunal”. In the event that the Unions proceeded to strike in any event then Section 5(A)(7) provides that the employees and Union officials who breach the provision of Section 5(A)(6) would be guilty of an offence.”

I. Applicants’ submission

It is the applicants’ contention that in referring the said disputes to compulsory arbitration the respondents acted in an arbitrary and pre-emptive manner so as to prevent the parties to the dispute from following other avenues within the framework of the Act in which to settle their disputes.

Counsel submits that this was not a case where the Minister should have exercised his powers under section 6(2)(b) and 6(2)(c) of the Act as there were still other avenues such as conciliation meetings, board of inquiry and an Independent Investigator who could have been appointed under the provisions of the Act.

He further submits that by teachers going on strike it would not jeopardise the essentials of life or livelihood of the nation or endanger the public safety or the life of the community.

Counsel says that the whole thrust of the Act is to provide alternative means of settlement of disputes with arbitration as the last resort and only where all else has failed and strike action is imminent or commenced and it would endanger the public.

It is submitted that the crux of the judicial review proceedings is that the Respondents acted ultra vires section 6(2)(b) and s6(2)(c) and misdirected themselves in law thereby frustrating the Policy of the Act when there were other means of resolving the trade dispute still available.

Counsel submitted that the respondents acted ultra vires s6(2)(b) by referring to compulsory arbitration which effectively stopped the applicants from going on strike; and if they did go on strike then under s6(4) the Minister can order or prohibit the continuance of and declare unlawful such strike.

Mr. Kapadia submits that to refer the members of FPSA who are members involved in non-essential services to compulsory arbitration under s6(2)(b) a section which deals with essential services is clearly ultra vires that section. It is an error of law which renders the decision of the Respondents a nullity and for which the decisions must be quashed. In referring to compulsory arbitration the Minister has not taken into account matters which should have been or have not asked the right questions in applying s6(2)(b).

Counsel further submitted that that the Respondents took into account irrelevant considerations in referring the members of the Unions to compulsory arbitration.

On misdirection in law counsel submits that the Respondents failed to understand the various provisions of the Act which promotes conciliation and resolution of dispute which referred to compulsory arbitration as a last resort if all else fails. At the time of the referral to compulsory arbitration the strike was one month away. The parties should have been left to decide the next course of action.

Mr. Kapadia submits as a ground that the policy of the Act has been frustrated by denying the parties the right of fully negotiating and bargaining under the Act.

Counsel says that teachers do not fall under the provisions of s6(2)(c). He says that the FNA members were ordered under s6(2)(b) to compulsory arbitration whether they liked it or not when there was still room for resolution through other means within the framework of the Act.

Mr. Kapadia has raised another ground and that is that the CEO has simply unquestionably accepted the Minister’s authorization and allowed himself to be directed unlawfully by the Minister. The CEO has not exercised his authority independently even though he may be authorized by the Minister.

A very serious allegation has been made against the Minister in that he was actuated by ill-will in the decision making process. Evidence on this is comprised in numerous newspaper cuttings.

It is further submitted that referring to compulsory arbitration of FPSA members falls within the terms of “Wednesbury unreasonableness”. Similarly, in respect of members of FTU under s6(2)(c) on public danger is clearly within this ‘unreasonableness’.

The ground of bias on the part of the Minister has also been raised in the light of the statements made by the Minister as evidenced by numerous newspaper cuttings.

Finally, the question of ‘legitimate expectation’ has been raised. This the counsel says has been breached in that the legitimate expectations of the Unions that they would be allowed to continue negotiating with the Commission until such time, failing agreement, they could choose to go on strike should the negotiations fail. By making a pre-emptive decision to refer to compulsory arbitration the Minister breached the legitimate expectations of the members of the Union to negotiate within the framework of the Act and failing which such negotiation to exercise their fundamental right to strike.

For the above reasons the applicants want the decisions quashed.

J. Respondents’ submission

The respondents deny that they acted ultra vires. Counsel says that they were justified to treat the whole concerted conduct of the three applicants together in conciliation and in a referral to arbitration [Secretary of State v Aslef (No. 2) (1972) 2 All E.R. 949 at 966].

This is a case where the FPSA, FTU and FNA had filed a similar log of claims against their common employer. The claims concern COLA and merit pay increments. Whatever the resolution it would apply across the board to all members of the three Unions.

Counsel says that it would create a confusion if the applicants were treated separately as contended by applicants, because the same issues would be pursued concurrently through different forums, i.e. the FNA and part of FPSA will be subject to compulsory arbitration while FTU pursues “own” means e.g. strike.

Mr. Udit submits that the respondents’ action to refer to arbitration could not be ultra vires as all the means of resolving the dispute through private negotitations and conciliation had been exhausted. He said that it could not have been a pre-empt decision to refer to arbitration as it was on 2.2.04, curiously on the same day as the strike notice. Also 30% of members of the unions were involved in an essential service and it was impracticable to separate the “essential” members from the “non-essential”. He says that there is no merit on this ground.

Counsel submits that no irrelevant considerations were taken into account. The affidavit of CEO (Brian Singh) outlines the effect that the ‘strike’ will have on students, there will be no teacher supervision which is a threat to their safety.

On the alleged ‘misdirection of law’ counsel submits that all procedures under the Act were followed but negotiation and conciliation and arbitration had reached a deadlock and the last resort was to the Permanent Arbitrator for compulsory arbitration.

Counsel submits that there was no attempt on the part of the Minister to frustrate the policy of the Act as alleged nor where his actions contrary to the policy of the Act. He said that all meaningful negotiation between the parties to resolve the dispute had failed and conciliation had reached a deadlock.

Mr. Udit further submits that the CEO’s decision was not influenced by the Minister’s motives. Also it is denied that the Minister had any improper and unlawful motives. He only acted on the facts presented when CEO made a referral to him. It is the CEO who seeks direction from the Minister to refer to arbitration tribunal and not vice versa.

On ‘irrationality (improper motive and/or purpose’) counsel submitted that the strike notice was not a factor which the Minister considered with any authority in his decision. The applications must prove ulterior motive or purpose. There was no improper motive and/or purpose. The respondent’s decision was made after considering a wide range of factors and the potential impact on the nation of the situation.

Counsel further submits that it cannot be further from the truth that the Minister only referred the disputes to arbitration after the Applicants had filed the notice to strike which was filed on the same day that the Minister referred the disputes to arbitration.

It is further submitted that the decision of the Minister was not ‘Wednesbury unreasonable’. In the light of the deadlock reached between the parties and the risks to public interest and national economic interest the decision was not unreasonable.

Counsel submits that the Minister’s decision was reasonable, prudent and in accordance with the provisions of the Act under which he was exercising his powers and the same applies to the decision of the Chief Executive Officer.

Counsel submits that there was no ‘bias’ or ‘procedural irregularity’. The Minister acted on the recommendation from the CEO. It would have been impracticable to divide workers in essential and non-essential categories when authorizing the referral to arbitration.

On the ground of ‘legitimate expectation’ the respondents deny that they breached any legitimate expectation. Counsel submitted that even when the matter was before Arbitration or Tribunal, the parties were still at liberty to make necessary application to the Arbitrator.

K. Consideration of the grounds of review

I shall now consider the various grounds of review put forward by the applicants but not in the order submitted. I find that there is much overlapping in the grounds as if the whole book has been thrown at me so to say.

This approach has not been received with favour by the Courts, a criticism of which is found in The State v. The Permanent Arbitrator ex parte Fiji Electricity Authority (Judicial Review No. HBJ0001.1997S) where his Lordship Justice Fatiaki (now Chief Justice) at p4-5 of his judgment, inter alia, commented:

“This form of ‘pleading’ (for want of a better expression) which is fast becoming the norm in applications for ‘judicial review’ is unacceptable, unhelpful and often duplicitous”.

For the determination of the issues before me I have various affidavits from both sides and also lengthy and comprehensive submissions from both counsel. Their arguments have already been stated hereabove.

(i) Principles governing judicial review applications

As stated by Lord Templeman in Reg v Inland Revenue Commissioner 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. Judicial review should not be granted where an alternative remedy is available.”

In a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law. It is important that administrative actions take into account all relevant considerations and ignore any irrelevant considerations. The decisions must be reasonable; they must not be biased or pre-determined; they must be exercised with the rights of natural justice in mind, unless a statute, expressly or by clear implication provides a contrary intention.

The Court is required to consider whether the “process” by which the decision was reached is authorised or valid. The basic question is whether the decision-maker has acted intra vires or within the discretion conferred reasonably and fairly.

In any review of a decision the court is concerned to evaluate fairness. Lord Hailsham L.C. has in Chief Constable of North Wales Police v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1160 very succinctly put the essential function of judicial review thus:

“It is important to remember in every case that the purpose ... is to ensure that the individual is given fair treatment by the authority to which he has been subjected and that it is no part of that purpose to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matter in question.” (emphasis added)

Bearing in mind the principles governing judicial review as briefly stated hereabove I shall now deal with certain specific grounds which I think ought to be considered after amalgamating some of the grounds advanced.

(ii) Trade Unions and strike

Much has been said by the applicants as to how their strike notice has been affected by the Minister’s decision.

The unions had given strike notice on the same day as the decisions which are impugned. Whether the referral to compulsory arbitration came after the strike notices has not come out clearly in evidence except that in his submission Mr. Udit for the Respondents submitted that the strike notice was not a factor which the Minister considered with any authority in his decision.

A trade union’s right to strike has a long history. At one time as late as 1867 the judges had declared that trade unions were illegal associations as being in restraint of trade but in England in 1871 Parliament said that people are free to bind themselves in trade unions to better themselves. Similarly, employers were free to combine together to look after their own interests.

In this case the respondents are not saying that the unions cannot go on strike. The right to strike is not being taken away from them; but because of the Minister’s decision the applicants say that they are now prevented from going on strike as they run the risk of the strike being declared illegal and/or prosecutions could result under the Trade Disputes Act.

In this case, assuming that strikes did take place because of the disputes many innocent people will suffer causing hardship and inconvenience.

In this regard it is pertinent to note the remarks of Lord Denning in his book the Road to Justice (1955) at 104 where he said:

“...The whole community is struck. It is all very well to talk of the right to strike, but I know of no law which gives any man or any group of men the right to strike at the community at large. It is nothing more nor less than a claim to a right to inflict suffering on innocent persons in order to gain your own ends. That is a state of affairs which cannot be tolerated in a civilised community.

In the context of this case, the important thing to consider is whether, without thwarting the right to strike directly or indirectly whether avenues of settlement of the disputes have been exhausted or not under the provisions of the Trade Disputes Act, Cap. 97.

The following statements of Lord Denning at 104-5 ibid are apt:

“If two men should quarrel and come to fisticuffs in the street – or two gangs of men – so that the people in the neighbourhood are put in trouble and distress, we should all say at once that they should not seek to resolve their quarrels by coming to blows, but should take them before the courts of law. So also with disputes between unions or between a group of men and the union to which they belong. They should be resolved, not by force of arms or force of strikes, but by some impartial person or persons in whom the people at large have confidence. It is unthinkable that professional men such as doctors or teachers should so far forget their duty to the public as to go on strike: or even that farm workers should forget their duty to their animals. So also it should be with dockers or seamen who have an equally high duty to the community, there may be no alternative. A strike may be the only way in which they can get justice. For over a hundred years that has been the case. It is the reason why we have recognized the right to strike as we have. But, at the present day, in a civilised community these trade union disputes should be settled by an impartial tribunal as a matter of course just as other disputes are settled by the courts.”

On strike as far as we are concerned in Fiji, sections 1, 24(1), 32(1) and 33(1), (2) & (3) of the Fiji Constitution 1997 do protect the fundamental rights to withdraw labour. However, section 33(4) of the Constitution which provides as follows limits the right to strike in certain circumstances:

“A law may limit, or may authorise the limitation of, the rights set out in this section:

(a) in the interests of national security, public safety, public order, public morality or public health;

(b) for the purpose of protecting the rights and freedoms of others; or

(c) for the purpose of imposing reasonable restrictions on members of a disciplined Force:

but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”

For the purposes of a case of this nature we are governed by the Trade Unions Act – Cap. 96, the Trade Unions Regulations – Cap. 96 and Trade Disputes Act - Cap. 97.

Having stated the position regarding the right to strike in the present context, it is not for me to say or decide whether the applicants could still go on strike despite the Minister’s order for compulsory arbitration but one has to bear in mind the provisions of the Act in this regard.

However, s.6(4) does provide that:

“where a trade dispute has been referred to a Tribunal or to conciliation or to a Disputes Committee under this Act, the Minister may by order prohibit the continuance of and declare unlawful any strike or lockout in connection with such dispute which may be in existence on the date of the references.”

It is a decision which the Unions will have to make themselves.

(iii) Procedural impropriety and error of law

In a judicial review the Court’s function is to review not the merits of the decision in respect of which the application for judicial review is made, but the decision-making process. It is ‘a review of the manner in which the decision was made’ (Lord Brightman in Chief Constable of the North Wales Force v Evans [1982] UKHL 10; (1982) 1 WLR 1155 at 1174). In other words, as Sir Thomas Bingham MR said ‘we have one function only, which is to rule upon the lawfulness of decisions’ (R v Cambridge District Health Authority ex. p. B C.A. N.L.J. 24.3.95 p.415); also to ‘see that the relevant authorities use their powers in a proper manner’ (Lord Hailsham in Evans (supra at 1160).

(a) Provisions of the Act

The Trade Disputes Act (Cap. 97) (the ‘Act’) applies in this case. Under s.3 the ‘trade dispute’ was reported to the CEO by the Unions (the ‘applicants’) on the inability of the Unions and the Commission to resolve their log of claims for 2003 for 5% COLA and MERIT PAY increase.

Part II of the Act lays down the ‘Procedure for settlement of disputes’. Section 4 states the steps to be taken by the Permanent Secretary (CEO). Since a lot of arguments centred on the provisions of section 4, I set it out in full and it is as follows:

4. – (1) The Permanent Secretary shall consider any trade dispute of which he has taken cognizance and may take one or more of the following steps as seem to him expedient for promoting a settlement: -

(a) Inform the parties that he accepts or rejects the report of the trade dispute, having regard to the sufficiency or otherwise of the particulars set out in the report, to the nature of the report, or to the endeavours made by any of the parties to achieve a settlement of the dispute, or having regard to any other matter which he considers to be relevant in the circumstances:

Provided that:

(i) No trade disputes which arose more than one year from the date it is reported under Section 3 shall be accepted by the Permanent Secretary except in cases where the delay or failure to report the trade dispute within the specified period was occasioned by mistake or good cause;

(ii) A report which has been rejected by the Permanent Secretary shall be deemed not to be made under the provisions of this Act.

(b) inform the parties that any of the matters over which the trade dispute has arisen or is apprehended is not a trade dispute under this Act;

(c) refer the matter back to the parties and, if he thinks fit, make proposals to the parties or to any of them upon which settlement of the trade dispute may be negotiated;

(d) appoint any person (who may be a public officer or any other person considered by him to be suitable) to act as a mediator and conciliator where the trade dispute is a dispute of interest;

(e) endeavour to conciliate the parties by all reasonable means at his disposal;

(f) cause an investigation of the trade dispute, or any matter connected therewith, to be made by any person who appears to the Permanent Secretary to be independent and who may or may not be a public officer;

(g) report the trade dispute to the Minister, who may, if he thinks fit, authorise the Permanent Secretary to refer it to a conciliation committee appointed by the Minister for mediation and conciliation;

(h) refer the trade dispute to a Disputes Committee, where the dispute is a dispute of right.

2. The decision of the Permanent Secretary under this section shall be in writing and shall as soon as practicable be communicated in writing by hand or by registered post to the parties to the dispute or to their representatives.
   

Section 6 deals with ‘reference of trade disputes to Tribunal’ and in so far as it is relevant provides:

6. – (1) Where the Permanent Secretary or any person appointed by him or by the Minister is unable to effect a settlement, the Permanent Secretary shall report the trade dispute to the Minister who may, subject as hereinafter provided, if he thinks fit, and if both parties consent, and agree in writing to accept the award of the Tribunal, authorise the Permanent Secretary to refer such trade dispute to a Tribunal for settlement.

(2) The Minister may authorise the Permanent Secretary, whether or not the parties consent, to refer a dispute to a Tribunal where –

• (a) A strike or lockout arising out of a trade dispute, whether reported or not, has been declared by the Minister to be unlawful as provided for under section 8; or
  
• (b) A trade dispute whether reported or not, involves an essential service; or
  
• (c) The Minister is satisfied that a trade dispute, whether reported or not, has jeopardised or may jeopardise the essentials of life or livelihood of the nation as a whole or a significant section of the nation or may endanger the public safety of life of the community.
  

(3) ...........
(4) ...........

As I see it one of the arguments of the applicants is that section 4 was not fully complied with by the CEO for the section does provide alternative means of settlement of disputes with arbitration as the last resort.

On the evidence before me I find that there is force in that argument.

Although the CEO says in para 5 of his affidavit that he ‘followed every aspect of the above procedure in respect of all disputes’ he did not actually do that for all he did was, after considering the report of the conciliator, he considered that the ‘only means available to resolve through an adjudication process i.e. a decision to be handed down by an independent person’. He said that ‘the only adjudication process available was the referral of the trade disputes to the Arbitration Tribunal’. Then he referred the trade disputes to the Minister under section 6. The Minister then authorized the CEO to refer the disputes to Arbitration Tribunal.

The said section 4 lays down the steps to be taken by CEO and he applied s.4 (i) (d) by appointing a conciliator with negotiations resulting in a ‘deadlock’. He did not invoke the provisions of s4(1)(e) and (f) which authorizes him to ‘cause an investigation of the trade dispute, or any matter connected therewith, to be made by any person who appears to the Permanent Secretary to be independent and who may or may not be a public officer.’

Instead of adopting the steps in (e) and (f) the CEO goes straight to the Minister.

In these circumstances I find that there was a procedural impropriety and an error of law on the part of the CEO and the Minister in administering the provisions of section 4. When a point of law arises the reigning rule as stated by Wade, Administrative Law 5th Ed. at p817 is as follows and is apt to be applied to the facts and circumstances of this case in the light of what I have said hereabove:

“...the reigning rule today is more sophisticated and less legal. It is designed to give greater latitude to tribunals, where there is room for difference opinion. The rule is, in effect, that the application of a legal definition or principle to ascertained facts is erroneous in point of law only if the conclusion reached by the tribunal is unreasonable. If it is within the range of interpretations within which different persons might reasonably reach different conclusions, the court will hold that there is no error of law.”

This concept of ‘error of law’ as a ground for review could on the facts and circumstances of this case be properly explained and understood in so far as it is material here by the following passage from Notes 48.1.5 Judicial Review Handbook 3rd Ed. by Michael Fordham:

“48.1.5. Need for material error of law/misdirection. R v Hull University Visitor, ex p Page [1992] UKHL 12; [1993] AC 682, 702 C-D (Lord Browne-Wilkinson, referring to a “relevant error of law, ie. an error in the actual making of the decision which affected the decision itself”: there, counsel contended that “the recent decision of this House in R v Independent Television Commission, ex p TSW Broadcasting Ltd [(1982) [1996] JR 185], has thrown doubt on the proposition that all errors of law vitiate the decision. In my judgment this is a misreading of that authority. This House was asserting that the mere existence of a mistake of law made at some earlier stage does not vitiate the actual decision made: what must be shown is a relevant error of law, ie., an error in the actual making of the decision which affected the decision itself”), applied in R v Governor of Brixton Prison, ex p Levin [1997] AC 741, 749A; R v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719, 730 H-731 A (Woolf LJ: “The position here is that, in the case of any application for judicial review, the remedy is discretionary. If, albeit there has been a misdirection but the misdirection has not affected the outcome in any way, the court were to intervene, they would, in view, be misusing judicial review. Judicial review is required to put right a situation where things have gone wrong and an injustice requires to be remedied”); R v Knightsbridge Crown Court, ex p Marcrest Properties Ltd [1983] 1 WLR 300 (remedy refused where errors of law in oral judgment had not affected the decision or caused any prejudice);]”.

The CEO did not follow correctly and fully the procedure for settlement of disputes as stated in section 4. It was incumbent on him to do so otherwise 4(1)(e) and (f) will be meaningless. It is my view, that he cannot just pick and choose what he wants. That discretion is not there in the face of those specific statutory provisions although s.4(1) does say that the CEO ‘may take one or more of the following steps as seems to him expedient’.

The CEO therefore acted ultra vires in applying the provisions of section 4. He should have exhausted all other avenues open to him under that section which he failed to do. By going straight to the Minister he wrongly advised the Minister in the wrongful exercise of a discretion which he did not have at the very first stage of negotiation when there was a deadlock.

In the procedure followed by the CEO the door was shut on the applicants for further negotiation and settlement of the disputes contrary to what was envisaged in section 4. The applicants were denied a fair hearing.

As already stated hereabove in a judicial review courts ensure that administrative actions are intra vires and keep within the bounds of their authority. These actions will be ultra vires if they fail to comply with the requirements of certain statutes and by common law.

In any review of a decision the court is concerned to evaluate fairness. [Lord Hailsham L.C. in Chief Constables of North Wales Police v Evans (1982) in WLR 1155 at 1160 supra]. The parameters of this ground called the ‘procedural impropriety’ has been explained by Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service (1985) AC 374 at 408 thus:

“I ...describe the third head as “procedural impropriety” rather than failure to observe basic rules of natural justice or failure to act with procedural fairness towards the person who will be affected by the decision. This is because the susceptibility to judicial review under this head covers also the failure by an administrative tribunal to observe procedural rules that are expressly laid down in the legislative instrument by which its jurisdiction is conferred, even where such failure does not involve any denial of natural justice.” (emphasis added)

In this case the omission to follow the procedure stated in section 4 by the CEO resulted in the applicants being denied their common law right to actually go on strike if they decided to do so at the expiry of period of notice in respect of which proper notices were given by the three Unions.

Hence in this case there was procedural irregularity or impropriety or unfairness.

This is a good ground for judicial review and its success.

From the procedure adopted by the C.E.O. there clearly was an error of law and on this aspect Lord Diplock in In re Racal Communications Ltd [1980] UKHL 5; [1981] AC 374 at 382 – 383 has succinctly summarised it as follows:

“Where Parliament confers on an administrative tribunal or authority, as distinct from a court of law, power to decide particular questions defined by the Act conferring the power, Parliament intends to confine that power to answering the question as it has been so defined: and if there has been any doubt as to what that question is, this is matter for courts of law to resolve in fulfilment of their constitutional role as interpreters of the written law and expounders of the common law and rules of equity. So if the administrative tribunal or authority have asked themselves the wrong question and answered that, they have done something that the Act does not empower them to do and their decision is a nullity. Parliament can, of course, if it so desires, confer upon administrative tribunals or authorities power to decide questions of law as well as questions of fact or of administrative policy; but this requires clear words, for the presumption is that where a decision-making power is conferred on a tribunal or authority that is not a court of law, Parliament did not intend to do so. The break-through made by Anisminic [1968] UKHL 6; [1969] 2 A.C. 147 was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.” (emphasis added).

It is quite clear from the affidavit evidence of Brian Singh (CEO) that just because there was the alleged deadlock he decided that there was no other way of resolving the disputes, without even considering the rest of the provisions of section 4 after the conciliation attempt failed then to refer it straight to the Minister.

(iv) Minister’s decision and Bias

The Minister in authorizing the CEO to refer the disputes to an Arbitration Tribunal for settlement pursuant to s6 s.s 2(c) of the Act, evidently relied heavily on the advice of the CEO.

It appears that the Minister did not exercise his own independent mind to the issues after receiving the CEO’s report under section 6.

In fact he said in his affidavit that:

“Under the Trade Disputes Act the principal functions relating to a trade dispute resolution process is assigned to the Chief Executive Officer of the Ministry. I have a very limited role and function in respect of the statutory functions under the Act”.

After looking at all the facts as submitted to him by the CEO he considered that ‘there existed a trade dispute which needed a resolution through an adjudication process.’ He then referred the trade dispute to the Arbitration Tribunal for a resolution.

The Minister says in his affidavit that he considered the pros and cons in regard to the position of the Unions going on strike and said in regard to FTU that ‘if young children were left unsupervised, there was a possibility of danger or risk to the children’.

The Minister by his affidavit denies that ‘he acted in bad faith or my decision was bias’ and that his decision to ‘refer the dispute to the Arbitration was not pre-emptive’.

He said that ‘my exercise of the power’ was not ‘designed to frustrate the Unions right to go on strike’.

It is admitted by the Minister that the referral to Arbitration Tribunal ‘was contingent upon’ a ‘recommendation by the CEO for any authorisation’.

In these circumstances because of my findings on CEO’s non-compliance with the provisions of section 4, his recommendation to the Minister proceeded on a wrong footing having misdirected himself on law in the face of specific statutory provision in the Act resulting in my view in the Minister’s decision being a nullity.

In the light of the affidavit evidence before me on the aspect of ‘media to publicity’ the Minister said that his comments about deregistration of Unions is in the hands of the Registrar of Trade Unions and not him if they acted contrary to law.

Although the Minister said in his affidavit that ‘it was and has never been my intention to deprive the Unions from exercising any of their Constitutional rights, including the right to strike’ but that exactly was what he did by his decision. The trade Disputes Act under which he acted provides for that.

Had the CEO not made the errors I had already referred to, the Minister I consider would not have come to the decision to which he did. No doubt it would be much preferable for teachers and nurses as professional people to have their grievances dealt with by an Arbitration Tribunal bearing in mind the statements made by Lord Denning referred to hereabove. However, it should not be lost sight of that section 4 should have been fully complied with by the CEO.

It is quite obvious that both the CEO and the Minister were well aware of the ‘strike notice’ having been given. By acting as they did in coming to their decision they acted prematurely without exhausting all the other avenues open to them under section 4.

Why did the Minister not satisfy himself whether s4, a statutory requirement, has been fully complied with by the CEO. When he knew of the ‘strike notices’, why did he have to by his decision prevent the applicants from exercising their Constitutional right without giving any reason and when the alleged strike was a month away? There is no answer I find he could have, if the applicants were to go on strike have declared it illegal which power he had and no one will question him in that regard.

The steps set out in section 4 are there for a purpose and it was incumbent on the CEO to comply with its provisions. It is a statutory provision and failure to implement the relevant portions of it in this case is fatal and, in my view, vitiates the decisions of both the CEO and the Minister.

It was wrong on the part of the Minister to lump all the three Unions together and send them all in one decision to arbitration in complete disregard of the facts pertaining to each union. I agree with Mr. Kapadia when he said:

“The Respondents were aware that 70% of the members of FPSA were not in a essential services and that teachers were not going to jeopardise the essentials of life or livelihood of the nation as a whole or endanger the public safety or the life to the community if they were to go on strike. The Nurses had given 1 month Notice so the parties still had time to resolve the dispute in any way of their choosing with the Minister’s power to declare their strike unlawful as soon as they went on strike or even an hour before to refer them to compulsory arbitration”.

The ‘administrative convenience’ view of the respondents is of no avail to them to thwart the rights of unions to bargain collectively and freely. It is a protection which is enshrined in our Constitution and in the Conventions of the International Labour Organization (ILO) Nos. 87 and 98 which were ratified by Fiji on 19 April 1974.

Upon the whole of the evidence the decision of the Minister smacks of bias on his part coupled with the fact that the Minister is also a member of the Cabinet of the Government of the day which is the employer of the members of the Unions. I agree with counsel for the applicants in this regard.

There was a war of words between the Minister and the FPSA General Secretary. The evidence in regard to ‘bias’ is to be found in numerous newspaper cuttings (annexure e.g. affidavit of Rajeshwar Singh) which show that the Minister was actuated by ill-will in making his decision under section 6(2)(b) and (c) of the Act. For the Minister to say that the ‘strike’ was not a factor which he considered does not tie up with the facts.

The law on bias has been stated in a number of cases. In Latchman Brothers Limited v Sunbeam Transport Company Limited FCA Appeal Nos. 45, 51, 57 and 67 of 1983 where it is said: “would the circumstances cause a reasonable onlooker to think that there was a real likelihood of bias”.

Also, Lord Hope in the House of Lords in Porter v Magill [2003] 2 WLR 37 at p84 on test for bias said:

“The question is whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.”

In the context of this case the following statement of Lord Diplock on ‘bias’ in O’Reilly v Mackman [1983] UKHL 1; [1983] 2 AC 237 at 276 E is apt:

“It is another fundamental rule of natural justice or fairness, too obvious to call for express statement of it, that a tribunal exercising functions such as those exercised by the board [of Prison Visitors] ... should be constituted of persons who enter upon the inquiry without any pre-conceived personal bias against the prisoner. Failure to comply with this implied requirement would likewise render the decision of the tribunal a nullity.”

(v) Is this a case of Wednesbury unreasonableness?

It was the duty of the CEO and the Minister to have regard to all relevant matters and disregard any irrelevant ones for failure to comply could lead to their decisions being rendered invalid.

It is obvious from his affidavit that the CEO not only failed to comply with the requirements of section 4, particularly on the steps he was required to take in settling the dispute as already stated hereabove, he took into account irrelevant matters.

The matter of strike notices was an irrelevant consideration by the CEO for the applicants were well within their rights to have given strike notices. There was still plenty of time within which they could have exercised their right to strike if they wanted to when the time came. The effect of strike by union members in essential services was an irrelevant consideration by the CEO at the stage there was a deadlock.

The manner in which the decision that the CEO reached in substantial disregard of section 4 and after taking into account irrelevant matters is something which no reasonable person in the position of CEO would have reached. As Mr. Kapadia says the “decision to refer 70% of the members of the FPSA to compulsory arbitration when they are not involved in essential services again clearly smacks of Wednesbury unreasonableness” particularly where fundamental rights are involved where the express provision of the Act has been ignored or applied in an ultra vires manner.

The guiding principles on unreasonableness has been well stated in the leading case of Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680 on the question of Court’s powers in reviewing administrative decisions.

Lord Greene ibid at page 682 stated:

“When an executive discretion is entrusted by Parliament to a local authority, what purports to be an exercise of that discretion can only be challenged in the courts in a very limited class of case. It must always be remembered that the court is not a court of appeal. The law recognizes certain principles on which the discretion must be exercised, but within the four corners of those principles the discretion is an absolute one and cannot be questioned in any court of law.”

He went on to say at 682-683

“It is frequently used as general description of the things that must be done. For instance, a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matter which he is bound to consider. He must exclude from his consideration matters which are irrelevant to the matter that he has to consider. If he does not obey those rules, he may truly be said, and often is said to be ‘acting unreasonably’. Similarly, you may have something so absurd that no sensible person could ever dream that it lay within the powers of the authority.”

And at p685 he concluded by saying:

“The Court is entitled to investigate the action of the local authority with a view to seeing whether they have taken into account matters which they ought not to take into account, or, conversely, have refused to take into account, or, neglected to take into account matters which they ought to take into account. Once that question is answered in favour of the local authority, it may still be possible to say that, although the local authority have kept within the four corners of the matters which they ought to consider, they have nevertheless come to a conclusion so unreasonable that no reasonable authority could ever have come to it. In such a case, I think the Court can interfere”.

The following extract from the judgment in R v Hillingdon London Borough Council [1986] UKHL 1; [1986] AC 484 at 518, on unreasonableness in amplication of Wednesbury case (supra) is apt and have been borne in mind by me in considering unreasonableness in this case:

“The ground upon which the courts will review the exercise of an administrative discretion is abuse of power e.g. bad faith, a mistake in construing the limits of the power, a procedural irregularity (for example, breach of natural justice), or unreasonableness in the Wednesbury sense – unreasonableness verging on absurdity... Where the exercise or non-existence of a fact is left to the judgment and discretion of a public body and the fact involves a broad spectrum ranging from the obvious to the debatable to the just conceivable, it is the duty of the court to leave the decision of the fact to the public body to whom Parliament has entrusted the decision-making power save jn a case where it is obvious that the public body, consciously or unconsciously, are acting perversely.”

(vi) Conclusion

To sum up, for the reasons given I uphold the applicants on most of their grounds for judicial review.

The Chief Executive Officer has failed to comply fully with the provisions of section 4 of the Trade Disputes Act. This is a statutory requirement and it was not within the CEO’s discretion to skip the steps laid down therein. The issue in this case raised the fundamental rights of the applicants and for this reason both the Minister and the CEO should not have rushed into making the decisions which they made without first exhausting all the available avenues of settling the disputes under section 4.

The Minister also should have exercised his own independent mind to the situation and attempted another mode of resolving the disputes. It appears that he was going to give tit for tat judging by all the battle of words that went on between the General Secretary of FPSA and the Minister as revealed by the numerous press cutting filed as annexures in this case. This clearly is a case where the Minister was biased against the applicants. Hence it is not surprising that he came to the decision which he did, namely, ordering compulsory arbitration thus preventing the Unions from exercising their fundamental right to strike. The timing of the decision was wrong, he could have held on for some time yet.

Although the unions have the right to strike, it should be duty of the parties concerned to use their best endeavours to utilise all the machinery available to settle disputes. Strikes should be the last resort. Bearing in mind the drastic effect strikes have, inter alia, to the nation and inconvenience to innocent people, one ought to take note of the said words of Lord Denning: ‘But at the present day, in a civilised community these trade union disputes should be settled by an impartial tribunal as a matter of course just as other disputes are settled by the Courts’. In this case the party should exhaust all avenues open under section 4. When I am dealing on issue of this nature I cannot resist saying that in my experience as a trade unionist some forty-three years ago, there is nothing like negotiating a case in a calm atmosphere while understanding each other’s point of view and situation without killing the goose that lays the golden egg.

Having expressed my view, in the circumstances of this case I would invoke the provisions of Or. 53 r.9(4) which provides:

“where the relief sought is an order of certiorari and the Court is satisfied that there are grounds for quashing the decision to which the application relates, the Court may, in addition to quashing it, remit the matter to the court, tribunal or authority with a direction to reconsider it and reach a decision in accordance with the findings of the Court.”

In these circumstances, the decisions were ‘Wednesbury unreasonable’ with the CEO and the Minister taking into account irrelevant considerations and disregarding the relevant factors.

The applicants were justified in having the decisions reviewed and they have succeeded in doing so.

The application for judicial review therefore succeeds.

(vii) Order

I grant certiorari quashing the decision of the CEO dated 2 February 2004 in respect of FPSA and FNA and decision dated 5 February 2004 in respect of FTU AND it is further ordered that the decision of the Minister authorizing the CEO to refer to an Arbitration Tribunal the Trade disputes between the Applicants and PSC be quashed AND it is further ordered that the matter be remitted to the CEO to deal with the disputes afresh according to law in full compliance with section 4 of the Trade Disputes Act within 7 days from the date of this judgment.

The respondents are ordered to pay the costs of the application to be taxed by the Chief Registrar unless agreed.

D. Pathik
Judge

At Suva
17 November 2004