IN THE HIGH COURT OF FIJI
At Suva
Civil Jurisdiction

CIVIL ACTION NO. HBC0073 OF 2004

Between:

The Proceedings Commissioner, Fiji
Human Rights Commission
Plaintiff

-and-

SUVA CITY COUNCIL
Defendant

Counsel: Dr. S. Shameem and U. Ratuvili for the Plaintiffs
N. Lajendra for the Defendant

Date of Hearing: 12th August, 2005
Date of Judgment: 3rd November, 2005

RULING ON PRELIMINARY ISSUES

Caroline Tilly Martin was born on 22nd January 1945. In 1967 she was employed by the Suva City Council and in 1974 became a member of their established staff. She was a member of their Parks and Gardens Department. In 1972 she attended the Parks and Reserves Department in New Plymouth, New Zealand for a three month attachment. She proved herself to be an enthusiastic and studious person during that visit. She continued in horticultural work with Suva City Council until her compulsory retirement.

On the 2nd of November 1999 a retirement notice was sent to her giving her six months notice of the Council’s intention to retire her. This was said to be done in accordance with Clause 19(ii) of the Master Agreement between the Council and the Suva City Council Staff Association dated 17th August 1979. 

Clause 19 reads

“Retirement – The normal age of retirement from the Council service will be 60 years, except that – 

(i)	…
(ii)	On or after attaining the age of 55 years, an officer may be compulsorily retired by the Council provided that the officer must be given six months notice of the intention so to retire him.”

By letter of the 18th of November 1999 she lodged a complaint with the Human Rights Commission over her retirement. On the 21st of December 1999 the Council said that the retirement notice was in abeyance pending an arbitration by the Arbitration Tribunal concerning the issuance of retirement notices to six unestablished employees. The Human Rights Commission acknowledged the complaint and awaited the outcome of the Arbitration.

On the 31st of July 2001 the Tribunal found that the retirement notices were valid. Caroline Martin made her own complaint to the Tribunal but was informed that as it was identical to the earlier ones her notice was also valid.

On the 13th of December 2001 a fresh retirement notice was issued to her. By letter of the 21st February 2002 the Human Rights Commission announced that they were holding a formal inquiry. By letter dated 1st March 2002 the Council replied citing and relying upon the decisions of the Arbitration Tribunal. The Human Rights Commission responded by letter dated 20th March 2002 dealing with specific points from the Tribunals decisions but also challenging the constitutional validity of the clause in the Agreement permitting the Council to compulsory retire employees at the age of 55 years.

The matter was not resolved and by letter of the 27th January 2003 the Human Rights Commission informed Suva City Council that it intended to issue formal proceedings. They stated “The Commission has completed its investigation into this matter and has formed the preliminary view that the Council, in imposing a compulsory retirement age for its employees, could be in breach of section 38(2) of the Constitution and also section 17(1) (by virtue of section 17(3)(b)) of the Human Rights Commission Act 1999.

On the 29th of September 2004 the Proceedings Commissioner of the Fiji Human Rights Commission issued proceedings against Suva City Council. They sought the following: 

“1.	A declaration that the compulsory retirement policy of the defendant based on Chapter 4 clause 19(ii) of the Collective Agreement between the defendant and Suva City Council Staff Association directly discriminates against its employees over the age of 55 contrary to section 38(2) of the Constitution;

2.	A further declaration that clause 19(ii) of the Collective Agreement unfairly discriminates against Caroline Tilly Martin on a prohibited ground contrary to section 38(2) of the Constitution, the prohibited grounds being her age, gender and disability by requiring her to compulsorily retire at 55 years;

3.	An order declaring the Collective Agreement void and enforceable in so far as it offends section 38(2) of the Constitution in imposing a compulsory retirement age;

4.	A further declaration that the defendant has unfairly discriminated against Caroline Tilly Martin on the grounds of her personal characteristics, namely her age and gender, in compelling her to retire at the age of 55 years whilst retaining another male employee who retired at the same time as Caroline Tilly Martin;

5.	A declaration pursuant to 38(2)(e) of the Human Rights Commission Act 1999 declaring Clause 19(ii) void and unenforceable in purporting to empower the defendant to unfairly discriminate against Caroline Tilly Martin;

6.	Loss of earnings from December 2001 till September 2004 – $37,092.00 (Thirty seven thousand and Ninety Two Dollars);

7.	An order for damages for humiliation, loss of dignity and injury to the feelings of Caroline Tilly Martin as a result of the defendant's actions towards her.”

In essence, the Human Rights Commission states that the Clause in the Council’s Collective Agreement which allows the Council in its discretion compulsorily to retire an employee, once the employee reaches the age of 55, offends the Constitution and the Human Rights Commission Act provisions against age discrimination in employment. It is therefore void and unenforceable.

The Commission also avers that the compulsory retirement age of 60 similarly offends the age discrimination provisions and is also void and unenforceable. The originating process also raises other issues.

Suva City Council have responded saying that there is no discrimination. First, this is a Collective Agreement between Staff and the City Council and the staff have accepted the age retirement provisions therein. Further, they point out that this matter has been taken to the Arbitration Tribunal and in each case that Tribunal has found in their favour. They further argued that the non-discrimination provisions did not apply to the Collective Agreement as it was not “law” for the purposes of the Constitution and the Human Rights Commission Act. They also raised a number of other preliminary issues.

Each party has submitted written submissions.

The constitutionality and compliance with the Act of a mandatory retirement age necessarily affects a large number of the people of Fiji. No cases in Fiji on this issue have been cited. In that regard, at the direction of the Court, papers were served upon the Attorney General, employers' organisations and trade union organisations. A general question was formulated by the Commission.

The question formulated was:

“Does the imposition of a compulsory retirement age in Fiji, either in a contract, Collective Agreement or by any other written law (excluding specific exceptions in the Constitution) offend against the Constitution?”

I will address first the preliminary issues raised by the defendants in this case.

1.	The Originating Process 

The defendants say that although headed “Originating Summons” this action was in reality commenced by Notice of Motion. As such it is improperly instituted. They rely upon Order 5 Rule 5 of the High Court Rules which states that “proceedings may be begun by Originating Motion or Petition if, but only if, by these rules or by or under any act the proceedings in question are required or authorized to be so begun”. They say an application for the declaratory relief and other relief sought in this case cannot be made by motion. This action should have been commenced by Writ of Summons or Originating Summons but not by Motion.

It was proper of counsel for the defendants to raise this issue. However, all parties were content for the matter to continue as the issues and supporting documentation are clear. Order 2 of the Rules deals with the effects of non-compliance with the Rules of Court and section 41 of the Human Rights Commission Act 1999 states at section 41 that “in any proceedings under this Act before the High Court, the Court –

“(a) must act according to equity, good conscience and the substantial merits of the case, without regard to technicalities;

(b)	(c) …”

2.	Conflict of Evidence

Counsel for the defendants have argued that there are substantial and significant conflicts on the face of the affidavits. Therefore, no judgment can be made on the issues until these conflicts have been resolved. 

It is convenient at this point to set out the affidavits that I have before me. They are as follows:

For the Plaintiffs

The Affidavits of Caroline Tilly Martin filed on 29th September 2004 and 10th of February 2005.
The Affidavits of Jale Toki filed on the 29th September 2004 and the 10th of February 2005.

For the Defendants

 	The Affidavits of Ilitomasi Perenakadavu filed on the 24th of December 2004 and – 2 affidavits.

At the heart of these proceedings are the age discrimination questions. They are found at paragraphs 1 and 3 of the reliefs sought. These can be resolved without any findings of fact having to be made where they are in contention. Once this has been done then the court and the parties can make an assessment as to whether or not there is a requirement for further questions to be ruled upon and if so whether any evidence needs to be heard to establish the pertinent facts.

3.	The Arbitration Award and Exhausting Other Remedies

Counsel for Suva City Council states that the central issues in this case were heard before the Arbitration Tribunal in relation to the six unestablished employees and later in relation to Caroline Martin. The issue of age discrimination was raised and on each occasion the Tribunal ruled in favour of the Council. They say it is a valid award and binding and conclusive between the parties. Further, that the Commission said it would “… await the ruling of the Ministry of Labour and Industrial Relations before it can assess what measures it will take further, if any”.

The defendants say this is in line with section 27(i)(d) of the Human Rights Commission Act 1999 which states “The Commission must investigate any complaint received by it, unless before commencing or during the investigation it decides not to do so because - … (d) the complainant has available another remedy or channel of complaint that the complainant could reasonably expected to use; …”

Further, counsel says that section 37(2) of the Act gives the Proceedings Commissioner of the Commission the ability to appear, with leave of the court, tribunal or arbitrator concerned and be heard in relation to any proceedings in which human rights are in issue.

The defendants say that the Commission did not avail itself of the opportunity to apply to appear and argue the issues before the Arbitration Tribunal. Further, if the Tribunal has erred on the question of age discrimination then the remedy of Judicial Review is available. 

I do not accept these arguments. The Commission had received from Caroline Martin a complaint about the allegedly discriminatory nature of its retirement clauses in its Agreement. It carried out an investigation and gave the correct notices. When the matter was not resolved it then took these proceedings in accordance with the Act. It is clear from the Human Rights Commission’s letter of 20th March 2002 and the originating process that these proceedings are brought as far as paragraphs 1 and 3 of the originating process is concerned for a declaration in relation to all employees of the defendants and not just Caroline Martin. Indeed, paragraph 3 raises a vital question affecting all employees in the country.

If Judicial Review or other appellate process of the Tribunal’s proceedings were to be brought it would have to be by Caroline Martin for some defect in the process before the Tribunal or on some other appealable ground. That was a matter for Caroline Martin. She would have had to allege some defect in the process which was susceptible to remedy by Judicial Review, or pursued an appeal on the decision on the constitutional issues, issues which give the very raison d’être to the Human Rights Commission. It might be in this kind of circumstance an unsuccessful litigant might decide not to pursue a ruling which the Human Rights Commission considered wrong. If the defendants’ argument is correct that would preclude the Human Rights Commission from taking action.

Further to follow the course the defendants suggest would preclude the Human Rights Commission taking proceedings on behalf of all those employees not involved in the Tribunal case and future employees. Section 27(2) of the Act states “No decision by the Commission to decline, defer or discontinue an investigation into a complaint affects the Commission’s power to inquire generally into a matter of its own initiative.”

The Human Right Commission has, after following procedures, raised those issues in relation to all employees as far as reliefs 1 and 3 are concerned. The fact they chose not to apply to appear at the Tribunal cannot preclude them from investigating the possible discrimination and taking proceedings if they consider them warranted.

This is not to act, as defence Counsel suggests, as a back door appeal of the Tribunal’s decision. Section 7(3) of the Human Rights Commission Act states. “The Commission must not investigate (but may comment on) any decision by a court of law.” The Human Rights Commission was not a party to the Tribunal proceedings and raises issues of a far reaching nature. There is also the question as to the ambit of “investigate any decision”.

The retirement of Caroline Martin and two others was the subject of Arbitration Tribunal Case 34 of 2001, Suva City Council v. Suva City Council Staff Association. Reference is made to Clause 19(iii), which is presumably a mistyping for Clause 19(ii). The Ruling states “the issues raised in this dispute are identical to the ones … in Award No. 22/01. Accordingly it is my view that Tribunal’s reasons and indeed its conclusions in the aforesaid Award applies with equal force to this matter … the retirement notices … are valid and effective.

Arbitration Tribunal case 22/01 concerned the validity of the compulsory retirement of the six unestablished workers “against the backgrounds of Awards 36 and 58 of 1999 and the Collective Agreement signed by the parties on 12.1.00”. Clause 28(iii) appears to be in the same terms as Clause 19(ii) of the agreement for established members. I do not have Awards 36 and 58 of 1999 before me. Reference is also made in the Ruling to Awards 7 and 10 of 1999. They are not before me. A number of issues were canvassed and argued. It is not always clear from the Ruling what the defined issues were where they relate, if they do, to the subject matter of the case before me.

At page 6 the Permanent Arbitrator says “… the issues have been unduly complicated by my predecessor in the awards aforesaid, by embarking on a discussion of the applicability of the Constitution, which in my view is irrelevant to a private contract (that is the agreement) between the association and the Council. With respect matters were further confused when the learned Judge in Judicial Review No. 14/99, posed the rhetorical question whether, the agreement was “law’ for the purposes of s.38 of the Fiji Constitution … Finally, I might mention that, perhaps the provisions of a new Human Rights Commission Act may apply but, this was not raised before me and as such, I don’t want to further complicate matters.” The retirement notices were then found to be valid.

Given these circumstances, the history of awards being made on the authority of previous awards and the lack of clarity as to which issues were canvassed and ruled upon I need not seek to define the precise meaning and working ambit of section 7(3) nor consider staying these proceedings on the basis that an appeal should have been lodged from the Tribunal’s Ruling in Case 34 of 2001.

These objections by the defendants in themselves necessarily raise the question as to whether or not the Arbitration Tribunal can entertain matters of constitutionality and make decisions thereon or whether such issues should only be addressed by higher courts. Authorities from overseas appear to differ upon whether this can be done. The Arbitration Tribunal is certainly not the best forum in which issues of such a far reaching nature should be raised, debated and ruled upon. I need not make a ruling on this issue.

4.	The Collective Agreement and The City Council

Counsel for the defendants argued that the Collective Agreement is not a law nor an administrative action taken under the law and therefore the Constitution has no application to the agreement. 

Section 38 of the Constitution is headed “equality”. It reads:

“(1) Every person has the right to equality before the law.

(1)	A person must not be discriminated against, directly or indirectly on the ground of his or her:

(a)	Actual or supposed personal characteristics or circumstances, including race, ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age or disability; or

(b) 	Opinions or beliefs, accept to the extent those opinions or beliefs involve harm to others or the diminution of the rights or freedoms of others;

Or on any other ground prohibited by this Constitution.

(2)	Accordingly, neither a law nor an administrative action taken under a law may directly or indirectly impose a disability or restriction on any person on a prohibited ground.

(4), (5), (6), (7), (8), (9) and (10).”

In support of this proposition counsel cites the case of Manu Dalituicama Korovulavula v. Public Service Commission C.A. No. ABU0006 of 1994, a decision of the Court of Appeal of Fiji.

I consider this issue of whether or not the Collective Agreement is “law” and further the issue as to whether employees can contract out of the age discrimination provisions in a Constitution are matters which should be addressed when argument is heard upon the principal issues set out in grounds 1 and 3 of the original process.

For the sake of completeness in this regard I have considered the position of Suva City Council. Chapter 4, entitled “Bill of Rights”, at section 21, which is headed “Application” states:

“(1)	This chapter binds:

(a)	the legislative, executive and judicial branches of government at all levels; central, divisional and local; and 

(b)	all persons performing the functions of any public office.”

Suva City Council falls within the provisions of sub-paragraph (a) being part of Local Government.

Section 88(2) of the Local Government Act Cap. 125 states

“The provisions of this Act relating to the powers and duties of councils are in addition to and not in derogation of the provisions of any other written law relating to such powers and duties and in the exercise of their powers and the performance of their duties in relation to any matter for which provision is made by any other law, a council shall act in conformity therewith”.

(5)	A General Question and Other Parties?

After initial argument the parties to this case were requested to formulate a general question concerning age discrimination and retirement clauses in contracts or elsewhere.

The government, through the Attorney General, representatives of the employers association and the trade union associations of Fiji were notified of the proceedings and attended court. The nature and extent of these proceedings and the primary questions in issue were relayed to them. None of those bodies has sought to be joined in these proceedings to make representations in relation to the two central issues, particularly the latter namely whether a provision in an agreement imposing a compulsory retirement age offends section 38(2) of the Constitution.

Conclusion

Therefore I will hear the Human Rights Commission and the Suva City Council in argument concerning paragraphs 1 and 3 of the originating process. It might be that the resolution of these two questions renders the remaining reliefs sought either obsolete or such as no longer requiring a judicial ruling.

If my judgments in relation to issues 1 and 3 are not in favour of the Human Rights Commission then I will hear any preliminary issues and resolution of conflicts of evidence followed by legal argument in relation to the reliefs sought at paragraphs 2, 4, 5, 6 and 7.

(R.J. Coventry)
JUDGE