State v Arbitration Tribunal, Ex parte Transport Workers Union [2006] FJHC 156; Judicial Review 10 of 2003 (13 October 2006)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. 10 OF 2003

Between:

STATE

v.

1. ARBITRATION TRIBUNAL
2. AIR PACIFIC LIMITED
Respondents

Ex parte:

TRANSPORT WORKERS UNION
Applicant

JUDICIAL REVIEW NO. 11 OF 2003

Between:

STATE

v.

THE ARBITRATION TRIBUNAL
Respondent

AIR PACIFIC LIMITED
Applicant

TRANSPORT WORKERS UNION
Interested Party

JUDICIAL REVIEW NO. 16 OF 2003

Between:

STATE

v.

1. THE ARBITRATION TRIBUNAL
2. AIR PACIFIC LIMITED
Respondents

Ex-parte:

TRANSPORT WORKERS UNION
Applicant

Mr. H. Nagin for the Union
Mr. N. Barnes for the Company
Ms. N. Karan for the Tribunal

Date of Judgment: 13 October 2006

JUDGMENT

There are three separate judicial review applications, namely, Nos. 10, 11 and 16 of 2003 involving the same parties against two awards of the Permanent Arbitrator.

These judicial reviews have been consolidated. Two of them namely Nos. 10 & 16 have been filed by the Transport Workers Union (the 'Union') and No. 11 filed by Air Pacific Limited (the 'Company').

The decisions of the Arbitration Tribunal (the 'Tribunal') are Award No. 48 of 2002 (hereafter referred to as 'Award 1') and Award No. 2 of 2003 (hereafter referred to as 'Award 2').

The decisions that are being challenged by the Company and the Union are as follows:-

Judicial Review No. 11 of 2003 (Applicant - Air Pacific Limited)

• (a) The check off decision - Award 1
• (b) The limitation decision – Award 2
• (c) The acclimatisation decision - Award 2
• (d) Hours of work decision - Award 2

Judicial Review No. 10 of 2003 (Applicant - Transport Workers Union)

• (e) The retirement age decision - Award 1
• (f) The overweight and blemishes decision - Award 1

Judicial Review No. 16 of 2003 (Applicant - Transport Workers Union)

• (g) Crew complement decision - Award 2
• (h) Sick leave decision - Award 2

Each application challenges different aspects of the Awards, "the decisions". The Awards which are subject to review are Award of 18 December 2002 (Award No 48 of 2002) and Award of 28 January 2003 (Award No. 2 of 2003). These Awards are referred to as Award 1 and Award 2 respectively. The Company has brought one review (No. 11 of 2003) and the Union two reviews (Nos. 10 and 16 of 2003). The awards arose out of disputed log of claims submitted by the Union and the Company to the Permanent Arbitrator.

Consideration of the issues

The decisions of the Arbitration Tribunal are reviewable as stated by Court of Appeal in Fiji Aviation Workers Association and Air Pacific Limited (Civil Appeal No. ABU0033 of 2001S) where it stated at p7-8:

"The principles governing a judicial review are well settled. In Fiji, this question has been determined in respect of a judicial review of a decision of Arbitration Tribunal under the Trade Dispute Act. This Court in Re Air Pacific Limited 34 FLR 6 at page 13 stated:

• "As a reviewing Court it is not concerned with the merits of the decision of the Tribunal but with the question whether the Tribunal acted lawfully in arriving at its decision, i.e. whether it did so within the jurisdiction conferred on it by virtue of the appointment made under the Trade Dispute Act."

The circumstances under which judicial review may be available include: where the 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.

I shall now consider the issues, first in J.R. No.11 followed by No. 10 and then No. 16.

A. JUDICIAL REVIEW NO. 11 OF 2003

(a) Check off decision

The check off system is the process whereby Air Pacific (the Company) automatically deducts union dues from an employee's pay and pays it direct to the Transport Workers Union (the Union). In July 2002 the Company discontinued the check off system and the Permanent Arbitrator (Tribunal) ordered it be reinstated.

Submission by Applicant (Air Pacific — the 'Company')

The Company is challenging this decision on the basis that the Tribunal took into account irrelevant consideration and failed to take into account relevant ones. Counsel referred to the case of Tesco Stores Ltd v Secretary of State for the Environment and others [1995] UKHL 22; [1995] 2 All ER 636 which states that:

"It is for the court to decide what is a relevant consideration. If the decision maker wrongly takes the review that some consideration is not relevant, and therefore has no regard to it, the decision cannot stand and he must be required to think again. But it is entirely for the decision maker to attribute to the relevant considerations such weight as he thinks fit."

Counsel for the Company argued that the irrelevant consideration made by the Tribunal was the voluntary arrangement that had been in existence for many years. The length of time that the arrangement had been in place was irrelevant consideration.

It says that instead, the Tribunal should have taken into account relevant consideration in that the arrangement was a voluntary one, therefore the Company had the right to withdraw from the voluntary arrangement any time. Counsel made reference to an earlier Award No. 17 of 1997 which had dealt with the issue where it stated that:

"such arrangements are best left alone as there is no legal obligation to do so and formalizing the process may be open to misuse"

It argued that the arrangements between a union member and his/her union is not part of the Employer/Employee relationship and is not something that an Employer needs to be involved with.

Reply by Respondent (Transport Workers Union - the 'Union')

The Union submits that the argument raised by the Company that the Tribunal took into account irrelevant considerations in that the length of time the arrangement has been put in place is irrelevant is totally 'obtuse' as the length of time is very relevant in coming to a decision.

The check off system has been in practice for a long period of time, therefore the longer the practice the more established custom it becomes.

The company also submits that the motive for terminating the voluntary check-off was irrelevant consideration. Respondent in reply submits that Tribunal is mandated to look at the dispute relating to log of claims, therefore the Tribunal was right in looking at the motive as to why the Company terminated the voluntary check-off. Check-off is of universal application in Fiji and is a system whereby the Unions collect their dues and it is neither wrong nor new.

Judgment on check off

The Air Pacific's (the applicant's) main ground for judicial review in the matter of 'check off' is that the Tribunal took into account irrelevant considerations in arriving at its decision.

It is not the function of this Court to go into the merits of the decision in a judicial review.

Although the ground advanced is one which can be considered, I find that there is no merit in this ground.

The Tribunal has given his reason for the decision. If anything, the applicant's unilateral rescinding of this facility 'during the height of the dispute between the parties' left much to be desired in a situation where this facility was in existence for 34 years.

It clearly shows that the applicant was being unreasonable to put it mildly for some motive best known to itself.

As a quasi-judicial body the Tribunal heard both parties on the issue and as required, for the purposes of settling the dispute he made the said Award. The Tribunal was acting intra vires and exercised his discretion within the ambit of his terms of reference.

The question that could be asked on jurisdiction is:

"has the authority been acting in a matter properly committed to it, has it properly understood its function and has it directed its consideration to the matters committed to it? [Anisminic Ltd v The Foreign Compensation Commission [1968] UKHL 6; (1969) 2 A.C. 147].

For the purposes of preventing or settling the matter in dispute as here the Tribunal has ample powers to make an order or an award. The Tribunal can do this if the evidence is strong enough, which is the case here, which compels him to steer that course for "the just settlement of the matters in dispute."

The Tribunal was quite justified in reinstating the check-off system forthwith stating that "if the Company has been happily providing this benefit over a number of years, then a necessary corollary to this is that, the principles of fair labour practice, legitimate expectations and good industrial relation practice would dictate that the benefit must continue to accrue." I agree.

For these reasons the application to review the decision on 'check off' is refused.

(b) The Limitation Decision

The Tribunal rejected the Company's claim that there must be a reasonable time limit on the right to submit a log of claims.

Submission by Applicant (Air Pacific)

It is the company's submission that the Tribunal took into account irrelevant considerations in that there was an:

Inviolable right to engage the Trades Disputes machinery when a legitimate need arises; and
That the Company's claim was inconsistent with the Trade Disputes Act and the Constitution.

The Company submitted, "inviolable" is defined in the Oxford English dictionary as "never to be infringed or dishonoured". The Company does not dispute the right of the Union to utilize and engage the Trade Dispute machinery but it is overstating the position to say that the right to engage in the Trade Disputes Act is never to be infringed. It is not inconsistent with the Union's rights to find that there are time limits on the procedure to be followed.

The Company submitted that the Trade Disputes Act imposes time limits as indicated by section 23 of the Act which requires the Tribunal to make an award within 28 days or without delay. Other legislation concerning time limits was raised by the counsel for the Company such as Limitation Act whereby information must be laid within 6 months of the commission of the offence. Section 29(3) of the Constitution was highlighted where the Constitution does not allow open ended claims and places claim on the amount of time that may be taken to bring proceedings.

It submitted that the Tribunal failed to take into account relevant consideration namely;

the effect on the Applicant of long delayed logs of claim on the planning, budgeting process, and the inability of the applicant to counter claim for productivity increases and;
the law relating to time limits generally.

In relation to the effect on the Applicant of long delayed claims, the Company submits that the negotiation of a log of claims in arrears has unnecessarily adverse effect on both sides such as the fact that long dormant claims have more cruelty than justice in them; a defendant may have lost the evidence to disprove a stale claim; and persons with good causes of action should pursue them with reasonable diligence (Halsbury Vol 28 page 266 para 605). The Company needs to be able to proceed on the basis that there is no claim if it is not prosecuted with due diligence.

In concluding the Company submitted that had the Tribunal taken the correct matters into consideration then it should have concluded that the submission by the company was reasonable and did not breach an inviolable right. Further that the Tribunal misdirected itself on the law by finding that there was an inviolable right and the Company submission was inconsistent with the Trade Disputes Act and the Constitution.

Reply by Respondent (Transport Workers Union)

The Union submitted that the Company's submission in this regard is vague and unusual. Matters raised by the Company including Limitation Act are irrelevant. The Tribunal was correct in referring to the Trade Disputes Act and the 1997 Constitution because section 33 provides for the workers and employers to have the right to organize and bargain collectively.

Reference to section 29(3) of the Constitution is irrelevant because the matter at hand is not a civil nor criminal dispute but a trade dispute having its own procedures and machinery under the Trade Disputes Act. The Trade Disputes Act provides for its time limitation as provided for in section 5 whereby the Permanent Secretary not accept a Trade Dispute more than 1 year old.

Judgment on Limitation

On the issue of limitation of time on the right to submit log of claims, I find there is no merit on the ground of judicial review that the Tribunal failed to take into account relevant consideration and that the Tribunal misdirected himself on the law by finding that there was an individual right in the Union to engage the Trade Disputes Act machinery when a legitimate need arises.

I find that the Tribunal was correct in rejecting the Company's claims that there must be a reasonable time limit on the right to submit a log of claims.

The Tribunal has given his reason for the decision and it is not for this Court to question it as the process by which it arrived at the decision was proper.

There was no error of law. I agree with the Tribunal when it held that:

"If the Company's above claim is allowed then in essence this Tribunal would be circumscribing the union's inviolable rights to engage the Trade Disputes machinery where a legitimate need arises. Additionally, any 'watering down' of such rights would in my view, be counter productive and more importantly, inconsistent with the spirit of the Trade Disputes Act, and indeed the 1997 Constitution."

For these reasons the application to review the decision on 'limitation' is refused.

(c) The Acclimatisation Decision

The collective agreement clause 32.4 makes provision for acclimitisation where it states:

"when a tour of duty includes a stay of more than 48 hours in a time zone, with a time difference of more than 2 hours from the last departure airport, the rest period at home on completion of that tour of duty shall be not less than 24 hours. This shall be in addition to the days off provision under clause 35".

The Company claimed that acclimatisation rest should be part of the days off provision and not in addition to the days off provision, thereby the Company sought to delete the second sentence of that clause. The Tribunal rejected the claim by the Company, therefore the Company is challenging the decision.

Submission by Applicant (Air Pacific - the Company)

The Company submits that the Tribunal rejected the Company's claim that acclimatisation rest should be part of the days off provision by taking into account irrelevant consideration when it stated that the company's decision was fraught with incorrigible flaw as the principle underlying the right of acclimatisation and days off are predicated on separate and distinct consideration.

It argues that in relation to the incorrigible flaw, the Tribunal misdirected itself in fact because the principles underlying the need for acclimatisation and days off are not predicated on separate and distinct considerations. Reference made to the principles and Guidelines for Duty and Rest Scheduling in commercial aviation (pages 159-163 of the record) show quite clearly that the acclimatisation provisions were built into the rest periods to run concurrently and so prevent lost and unproductive time. Rest and acclimatisation are one and the same and not separate issue.

It says that the Tribunal failed to take into account comparative international airline practice and inefficient use of employee time. Acclimatisation is part of the need for rest, consequently rest periods may be required to be longer but acclimatisation is not separate from rest, therefore as a result of the error in fact, the Company respectfully submits that the Tribunal misdirected itself. Counsel cited Cheshire County Council v Secretary of State for the Environment & Anor [1995] Env LR 316:

"If there was an error in the factual background of which the Secretary of State should have been aware, then his decision would have failed to take into account the correct factual background".

It also cited the following cases:

Regina v Secretary of State for Education ex parte E [1995] QBD, ENV LR. 312, 324 B-C:
"the decision was taken by taking into account matters which should not have been taken into account and as such, the decision, I find is irrational".
Hemns v Wheeler [1948] 2 KB 61:
"it is always a question of law, whether there was evidence to support findings of fact and whether the inferences drawn are possible inferences from the facts as found".

Submission by Respondent (Transport Workers Union - the Union)

The Tribunal was well within his powers to refuse the application by the Company to amend clause 32.4 of the Collective Agreement concerning the acclimatisation period and no error of law or irrelevant consideration can be pointed out in this case. The Tribunal is empowered under the Trade Disputes Act to hear and determine disputes, unless the decision is ultra vires of the Tribunal, makes procedural errors of law or decision is irrational or unreasonable no Judicial Review can apply.

Judgment on 'acclimatisation' decision

On the arguments presented by the Company I agree with its submissions.

It is the Company's argument that the required rest be part of, and not in addition to the days off provision.

It appears that the Tribunal did take into account irrelevant considerations.

I find that in analyzing the facts there was an error of law which is a ground for judicial review apart from not taking into account relevant considerations.

In Hemns v Wheeler [1948] 2 KB 6l at 65-66 at 65 it is stated:

"...in cases where this issue arises, it is for the county court judge to find the facts, but that it is always a question of law, which will warrant the interference of this court, whether there was any evidence to support his findings of fact and whether the inferences he has shown are possible inferences from the facts as found."

The Tribunal was vested with discretionary powers. In the matter of the exercise of discretionary powers in a review of a decision I find the following passage from the judgment of Lord Greene in Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1947] 2 All ER 680 apt:

"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 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." (emphasis mine)

There is no doubt that 'a person entrusted with a discretion must direct himself properly in law. He must call his own attention to the matters which he is bound to consider' (ibid 682-683).

The court's powers in interfering with a decision has been summarized by Lord Greene ibid at 685 thus which I have borne in mind:

"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, neglect 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 that Court can interfere". (emphasis mine)

I am of the view on the facts that the Tribunal failed to give weight to comparative airline practice such as that of Air New Zealand and Quantas.

Acclimatisation should be considered as part of the need for rest and recuperation for cabin crew and not be treated as separate.

The Company's evidence recorded at pages 159-163 indicated that the acclimatisation provisions were built into the rest periods to run concurrently and so prevent lost and unproductive whilst providing adequate rest, but the Tribunal did not give due consideration to this aspect of the Company's argument.

For these reasons I quash the Tribunal decision on acclimatisation and grant the Company the declaration sought.

(d) The Hours of Work Decision

The Company proposed changes to its hours of work, reason being to ensure that the Company had the flexibility to manage its operations and that all departments would be adequately staffed and manned to meet the requirements of a 24 hour industry. The Tribunal rejected the claim.

Submission by Applicant (Air Pacific - the Company)

The Company submitted that the Tribunal took into account irrelevant considerations when he considered that there was no comparison between Air Pacific and Air New Zealand and Qantas when in fact the comparison was very real and apt which was an error of fact.

He cited Award No. 17 of 1997 by the then Tribunal, Ram Joni Madraiwiwi, where at page 12 it stated that:

"the company does not operate in a vacuum. It operates in a highly competitive environment which no one disputes, it follows that the hours of work Qantas and Air New Zealand apply are highly relevant to this issue. Both air carriers service a good number of destinations to which the Company operates. While it has far fewer aircraft, the hours of work are a consideration in terms of the operation and frequency of services. Practically the Company's long haul services have operated reasonably well since Award No. 1 of 1995 was issued."

It was submitted that the Tribunal failed to take into account relevant consideration such as the relevant industry practice, the comparison between the Company and Air New Zealand and Qantas and the relative inefficiency of the Company's use of employee time when compared with other airlines. Due to the error of fact the Tribunal did not consider Company exhibit 17 (pages 167 and 376) of the record which showed that the Company proposal was the same as the system used by Air New Zealand and Qantas.

The Company said that the Tribunal did not consider the benefits of greater flexibility to the Company operations for instance allowing it to schedule maintenance work more efficiently and so allow for more customer friendly departure times. The current practice of a 16 hour break does not match scheduled aircraft down time during which maintenance is carried out.

Submission by Respondent (Transport Workers Union)

The Union submits that there is no question of irrelevant considerations because the Tribunal's consideration was relevant. The decision of the Tribunal confirmed the existing terms and conditions of the Collective Agreement. This matter was also addressed in Award 17 of 97 and since that time the Company's complexion of operation has not altered significantly therefore there is no justification for the change and the Tribunal was quite right with its powers to confirm the existing terms and conditions in this regard. There is no error of fact and no error of law or no irrationality of the Tribunal and this Judicial Review should be dismissed as there is no merit whatsoever in it.

It cited Air Pacific Limited (1988) 34 FLR 6 in particular page 13 of the judgment of the Court of Appeal which states-.

"In the argument on appeal counsel for appellant submitted that the learned Judge went wrong because he failed to distinguish the fact that he was not sitting on appeal in the matter but as a reviewing court under Order 53. As a reviewing court it is not concerned with the merits of the decision of the Tribunal but with the question whether the Tribunal acted lawfully in arriving at its decision, that is whether it did so within the jurisdiction conferred on it by virtue of the appointment made under the Trade Disputes Act "

Judgment on hours of work

For the reasons he has given the Tribunal said that it is not 'convinced that the current mutually agreed arrangements should be tampered with.'

I do not see any merit in the grounds stated for judicial review in the Tribunal's decision on hours of work. In this regard I refer to the authorities referred to hereabove in the matter of what is relevant and what is irrelevant and the Tribunal's powers and discretion in the exercise of its powers under the Trade Disputes Act.

It is not for this Court to go into the merits of the decision. I do not find that any irrelevant matters have been taken into consideration. There is no error of law in this regard. Also, there is no procedural irregularity in arriving at the decision,

For these reasons, the review of the Tribunal's decision on 'hours of work' is refused.

B. JUDICIAL REVIEW NO. 10 OF 2003

(e) The Retirement Age Decision

The Union is seeking to remove the normal retirement age (57½ years) altogether and leave it entirely up to the worker to decide when he or she should retire after reaching the age of 45 years.

The Tribunal noted that:

"....the current retirement age of 57½ years was negotiated and agreed to between the parties as recent as May 2000. In my view, the Union has failed to demonstrate that, in the period of approximately two years, sufficient compelling grounds have surfaced to justify: another variation. In any event, to use an example, the retirement age of 57½ years compares well with the Civil Servants' retirement age of 60 years."

The Tribunal gave his reason for coming to the decision to which he came. He also pointed out that this issue was canvassed in his Award No. 24/01 and 'it applies equally here'.

The Transport Workers Union is seeking to challenge the retirement age decision whereby cabin crew are required to retire at 57½years. The Union seeks an order to quash the relevant decision and declaration that the retirement decision is in breach of section 38 of the Constitution.

Submission by Applicant (Transport Workers Union)

The Union submitted that the Tribunal committed an error or law by not following section 38 of the Constitution in relation to the retirement age. Section 38(2)(a) clearly states that "a person must not be unfairly discriminated against directly or indirectly on the ground of his or her 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"

It says that section 38(7)(b) is clear that imposition of 'retirement age on a person who is holder of a public office' shall not be regarded as discriminatory. In this case Air Pacific crew and ground staff are not holders of public office and therefore the retirement age even though in the Collective Agreement was discriminatory and the learned Arbitrator was under an obligation to ensure that the provisions of the Collective Agreement is consistent with the 1997 Constitution. He did not have proper regard to this and therefore made an error of law. The Tribunal appears to hold that the retirement age was a product of the Consensus Agreement and therefore he should not interfere with it.

Consensus Agreement reached at a time that the 1997 Constitution was not in place is a totally different matter. After the 1997 Constitution the Tribunal is duty bound to revise the Agreement and this is why the log of claims was filed. Just because parties have agreed to certain things at a certain period of time does not mean that 'it is cast in stone'.

It says that the Tribunal is duty bound under the Trades Disputes Act to exercise his jurisdiction and not merely rely on what has been stated by previous Arbitrators.

Reply by Respondent (Air Pacific - the Company)

The Company submits that most large employers in Fiji and the world operate a retirement policy. There is nothing wrong with a clause in a contract dealing with termination by retirement and again most employment contracts have them.

The Union argued that the inclusion of a retirement clause in a contract of employment was discriminatory and in breach of section 38(2) of the Constitution. This provision relates only to unfair discrimination. The Union failed to demonstrate how requiring all cabin crew to retire at 45 and all other workers to retire at 57½ unfairly discriminated against their members.

The retirement policy for cabin crew is part of the service-based image of the Company and comprehensive evidence in rebuttal and failed to show any way in which the policy could be regarded as discriminatory.

It says that it is not discriminatory to have an age limit for retirement. This age limit was not imposed, it was agreed. In Uttam Chandra & Anor v Permanent Secretary for Finance & Anor [2002] FJHC 59 the Court considered the question of discrimination in relation to the Constitution albeit in relation to the tax treatment of residents and non-resident pensioners.

It also cited House of Lords decision in Regina v Secretary of State for Work and Pensions (Respondent) ex parte Carson (Appellant) [2005] UKHL 37 (another pensioner case). In that case Lord Hoffmann at para 14 said:

"Discrimination means a failure to treat like cases alike. There is obviously no discrimination when the cases are relevantly different". He continued "There is discrimination only if the cases are not sufficiently different to justify the difference in treatment."

It submits that the comments in the above case apply to this case; the treatment of cabin crew is consistent throughout the Company. The policy is that they must retire at 45 and the grounds upon which the policy is based were found to be justified by the Tribunal. Similar considerations apply to all other ground crew. All cabin crew and all ground crew are treated alike.

Judgment on Retirement Age Decision

On Retirement Age the Union wants a review of the Tribunal's decision which is against it.

The grounds advanced, I find, have no merit whatsoever.

This is not a case where there is procedural irregularity or error of law to give rise to a judicial review. The Court does not go into the merits of a decision. In any case I do not find any fault in the Tribunal's reasoning for coming to the decision to which he came. I am of the view that s.38 cannot be invoked on the facts and circumstances of this case.

The retirement age has been agreed upon by the parties as recent as the year 2000, and as the Tribunal says the union has failed to demonstrate that sufficient compelling grounds have surfaced to justify a variation in such a short period.

On error of law, the reigning rule is as stated by Wade, in Administrative Law 5th Ed. at 81 as follows;

"...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 of 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 interpretation within which different persons might reasonably reach different conclusions, the court will hold that there is no error of law." (emphasis mine)

In the light of the above quoted 'reigning rule', I find that the Tribunal has come to a decision which is not 'unreasonable' to give rise to it being declared invalid and void on the ground of being an 'error of law'.

In R v. Independent Television Commission, ex p TSW Broadcasting Ltd [1996] JR 185 the House of Lords "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 relevant error of law, i.e. on error in actual making of the decision which affected the decision itself." (quoting from Notes 48.1.5 Judicial Review Handbook 3rd Ed. by Michael Fordham). In R. v Wolverhampton Coroner, ex p McCurbin [1990] 1 WLR 719, 730-731 Woolf LJ said:

"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 my view, be misusing judicial review. Judicial review is required to put right a situation where things have gone wrong and on in justice requires to be remedied".

For these reasons judicial review of this decision on 'retirement age' is refused.

(f) The Overweight and Blemishes Decision

The Tribunal accepted as a matter of fact that the cabin crew was in an image-based industry and needed to project "a youthful look". The Tribunal in its award of this decision made reference to Award No. 17/97 made by his predecessor Ratu Joni Madraiwiwi where the claims and bearing of the dispute preceded the enactment of the 1997 Constitution and hence arguments of grounds of discrimination, international convention and unfair labour practices carried little weight.

Therefore the Tribunal in regards to the Union's submission on the effect of the 1997 Constitution if any on this issue, stressed that the Tribunal's views encapsulated in Award 24/01 applies here too.

The Union is challenging the decision of the Tribunal in accepting the contention made by the Company in relation to the issue of overweight and blemishes.

Submission by Applicant (Transport Workers Union)

The applicant is basing its grounds for challenging the overweight and blemishes decision on the basis that the Tribunal committed an error of law by not following section 38(2)(a) of the Constitution which deals with discrimination.

Reply by the Respondent (Air Pacific - the company)

The Company submits that the Union failed to show that the provision unfairly discriminated against their members and the Tribunal was correct in accepting that cabin crew was in an image-based industry and needed to project a youthful look. The company submitted evidence concerning weight and its safety and logistical impact on cabin crew.

The Company reiterated that upon judicial review the court is only empowered to look at the decision making process and it is not to substitute its own decision simply because it feels that it would have made a different decision. It cited Reid v Secretary of State for Scotland [1998] UKHL 43; [1999] 2 AC 512 541 F-542A where Lord Clyde stated that:

"Judicial review involves a challenge to the legal validity of the decision. It does not allow the Court of review to examine the evidence with a view to forming its own view about the substantial merits of the case".

Judgment on Overweight and Blemishes Decision

On the aspect of decision on overweight and blemishes, I find that the grounds advanced for judicial review have no merit.

I do not see that there is an error of law in the Company not following section 38(2) (a) of the Constitution which deals which discrimination I do not consider that this is a case of discrimination in this context and on the facts and circumstances of this case.

The statement of Lord Clyde in Reid (supra) referred to hereabove is applicable to this case.

For these reasons, the decision on overweight and blemishes stands. The application to review is therefore refused.

C. JUDICIAL REVIEW NO. 16 OF 2003

(g) The Crew Complement Decision

The Company sought to substitute clause 29(b) of the Cabin Crew Collective Agreement with - "The minimum crew complement on all operations/configuration shall be in accordance with legal requirement".

The Tribunal was of the view that the Management must be ascribed some discretion on this issue and went on to state that:

"This Tribunal believes that the Company's arguments for the contemplated changes, does demonstrate an exceptional case. And I also believe that a clause which "mandates maximum crew even if the flight is empty" is nonsensical from a commercial perspective since it must be emphasized that the primary consideration in any employment situation is that an employee is remunerated on productivity, and not by simply 'making up the hours or the numbers'."

In the outcome the Tribunal allowed the Company's claim that now forms the basis of this challenge.

Submission by Applicant (Transport Workers Union)

The Union submitted that the Tribunal erred in law in allowing the Company's claim on crew complement where there was no evidence to justify that it was an exceptional matter and required departure from the agreed terms of the Cabin Crew Agreement. The learned Tribunal should have known the crew complement was linked to safety.

It says that the Tribunal did not take into account the following relevant matters in relation to crew complement in that;

Crew complement was a safety issue.
Safety in airline business is of paramount concern.
The Company had agreed to existing crew complement and there were no change in the circumstances requiring any change to that.

Instead the Tribunal erred in law in taking into account the following irrelevant considerations:

The commercial aspect of crew complement when it was safety issue. That the primary consideration was that it related to productivity.

Reply by Respondent (Air Pacific - Company)

The Company submission quite clearly deals with the safety requirement of crew complement numbers; the CAAFI safety requirements are tabulated on page 27, para 6.4 of the record. The Union did not and is still unable to adduce any evidence that the proposal was not compliant with safety requirements.

The Tribunal was entitled to reach the conclusion that the Company must have discretion on staffing levels based upon a commercial perspective in the absence of any evidence that the crew complements proposed were not in line with the regulatory requirements.

The Union's claim must fail unless it can point to a flaw in the decision-making process by reference to one of the established heads of judicial review.

Judgment on Crew Complement Decision

I see no merit in the Union's application for judicial review of the tribunal's decision on Crew Complement.

There is no ground for judicial review applicable here. The Court will not substitute its own decision for that of the Tribunal for the Court cannot go into the merits of the decision as it is not its province to do so.

I do not find that there is an error of law.

The application is therefore refused.

(h) The Sick Leave Decision

The Tribunal at page 8 of the Award states that:

"it is trite, the aforementioned employment entitlement has been universally abused by unscrupulous employees, and this phenomenon is also prevalent within the public sector. And given the character of the Company's business, uncontrolled abuse in this area can have disastrous implication on the Company's commercial viability. Therefore it is this Tribunal's humble view, that the Company must be given some latitude to promulgate stringent controls, here but admittedly within reasonable limits.
Further for my part I am satisfied, the Company has demonstrated sufficiently compelling reasons to warrant the amendment sought. In any event, I am confident the proposed changes will not be a matter of concern for loyal employees who don't fake sicknesses "

The above decision by the Tribunal is being challenged by the Union on the basis that 'sick leave' was an essential negotiated term in the Agreement and there was no circumstances requiring any change. Secondly that sickness is a fact of life.

Submission by Applicant (Transport Workers Union)

The Learned Arbitrator erred in law holding that sick leave was universally abused when there was no such evidence before him. Also there was no evidence of any exceptional circumstances which justified the proposed changes in the Collective Agreement in relation to sick leave. There was no evidence whatsoever to justify this. Shifting of burden without evidence is an error of law and was accepted by the Supreme Court in Air Pacific Limited v Fiji Aviation Workers Association & Anor, Supreme Court Civil Appeal No. CBV 0006 of 2003S.

Submission by Respondent (Air Pacific the Company)

On the 'sick leave' decision it is the Company's submission that the finding is one of fact and not of law.

It submits that there was evidence of Mr. Komailevuka (pages 197-198 of record) before the Tribunal for him to come to the decision to which he did.

The Tribunal made a finding that the Company must be able to impose some control within reasonable time limits on sick leave and that he did not consider the proposals unreasonable.

Judgment on Sick Leave Decision

The Union seeks judicial review of the Tribunal's decision on 'sick leave' on the ground that there is an error of law and that the Tribunal took irrelevant matters into consideration.

It says that there were no circumstances requiring any change in the Collective Agreement.

The Tribunal has given its reasons for the decision and it is not for this Court to substitute its decision for that of the Tribunal. Also it is not for the Court to go into the merits of the decision. There is no error of law on this issue. In a judicial review the Court is concerned, inter alia, with the process by which the decision was reached; I do not find any procedural irregularity here.

The application for judicial review on 'sick leave' decision is therefore refused.

Conclusion

To sum up, as already stated this is a consolidated application for judicial review of the Tribunal's decisions on a number of issues.

There is no doubt that the decisions of the Tribunal are susceptible to judicial review. As already stated in dealing with each issue, judicial review is not an appeal or akin to a appeal; the Court has a supervisory jurisdiction over the executive and other public bodies.

It is in cases where it is proved that there is procedural impropriety, an error of fact or law, unreasonableness, and denial of natural justice that the Court will intervene.

The issues in these applications have been considered by me bearing in mind the principles applicable to judicial review as stated above and have given my judgment on each of the issues.

A number of grounds for judicial review were advanced by the respective applicants namely the Company and Union respectively. These grounds required consideration of the extent of the supervisory jurisdiction in applications for judicial review.

I shall conclude with the following statements of Lord Clyde in Reid (supra) ibid at 541-542 which I consider apt as being pertinent and which I hold hits the nail on the head in any consideration of the issues in a judicial review:

"It may be that the tribunal whose decision is being challenged has done something which it had no lawful authority to do. It may have abused or misused the authority which it had. It may have departed from the procedures which either by statute or at common law as a matter of fairness it ought to have observed. As regards the decision itself it may be found to be perverse, or irrational, or grossly disproportionate to what was required. Or the decision may be found to be erroneous in respect of a legal deficiency, as for example, through the absence of evidence, or of sufficient evidence, to support it, or through account being taken of irrelevant matter, or through a failure for any reason to take account of a relevant matter, or through some misconstruction of the terms of the statutory provision which the decision- maker is required to apply. But while the evidence may have to be explored in order to see if the decision is vitiated by such legal deficiencies it is perfectly clear that in a case of review, as distinct from an ordinary appeal, the court may not set about forming its own preferred view of the evidence." (emphasis mine)

Order

Summary of judgment.

In Judicial Review No. 11 of 2003 in which Air Pacific Limited is the applicant I grant the application for judicial review in respect of 'acclimatisation' decision but refuse judicial review of decisions on 'check off', 'limitation of time' and 'hours of work'. I enter judgment accordingly.

On Judicial Review Nos. 10 and 16/2003 in which Transport Workers Union is the applicant, the application for judicial review is refused on all the Tribunal decisions on 'retirement age', 'overweight and blemishes', 'crew complement' and 'sick leave'. These applications for judicial review are dismissed and judgment is entered accordingly.

It is ordered that each party bear its own costs.

D. Pathik
Judge

At Suva
13 October 2006