State v Registrar of Trade Unions, Ex parte Fiji Bank & Finance Sector Employees Union Pramod Rae [2007] FJHC 101; HBJ09.2006 (2 February 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ 09 OF 2006

THE STATE

v

THE REGISTRAR OF TRADE UNIONS
Respondent

EX-PARTE:
FIJI BANK & FINANCE SECTOR
EMPLOYEES UNION PRAMOD RAE
Applicants

Mr. V. Kapadia for the Applicants
Ms V. Qionibaravi for the Respondent

Date of Hearing: 9^th January 2007
Date of Judgment: 2^nd February 2007

JUDGMENT

[1] In 2003, the National Secretary of Fiji Bank and Finance Sector Employees Union retired before the expiry of his term. The Union decided to call for nominations for the post of the Union Secretary. On 23^rd February 2004, the Union informed the Registrar of Trade Unions that it intended to conduct a postal ballot for the elections of the post of the National Secretary. It informed the Registrar that ballot papers will be sent to all Union members on 1^st March 2004 and counting will take place on 20^th March.2004.

[2] There were two candidates for the post; namely, Ganesh Chand and Pramod Rae. Ganesh Chand received 484 votes while Pramod Rae received 1145 votes.

[3] It appears that the results of the election did not go down well with some people. A number of civil actions followed. The first was HBC 88 of 2004 filed by a union member Faiyaz Ali against the Union, Pramod Rae and one Davendra Dass. The action was part heard, but not carried to a conclusion by the plaintiff probably because of the manner in which the evidence went. It was discontinued.

[4] Ganesh Chand then filed an action HBC 106 of 2005. That was struck out by my brother Judge Justice Jitoko on 11^th November 2005 on the grounds that the allegations made and prayers sought involved public law matters and the plaintiff should have invoked judicial review procedure.

[5] However, on 9^th February 2006 the Registrar of Trade Unions informed the Union that the elections for the post of the National Secretary were null and void on the grounds that the Union breached "the process of postal ballots provided under the Trade Union Act".

[6] Further clarification provided by the Registrar through his letter dated 20^th February 2006 was that balloting commenced before the expiry of 21 days notice of intention under Section 10(A) of the Trade Union (Amendment) Regulations 1991.

Regulation 10A provides:

"where a Union intends to conduct a ballot in relation to clause 13 of the Schedule to the Trade Union Act the committee or the management of the unions shall -

(a) at least 21 days before the nominated date to hold the ballot give or post to the Registrar with the notice of intention and the notice shall state, amongst other things, the date, time and place where and when the ballot is to take place."

[7] One of the key issues in this case is the meaning of the word "ballot" in the above regulation. Ms Qionibaravi submitted that it meant casting of the vote and not the counting. According to her the 21 days notice was given on 23^rd February so the 21 days ran from 23^rd February. Hence only those votes cast between 16^th March and 20^th March were valid. In the present case votes had been cast before 16^th March so the results of elections were invalid. Her further submission was that Ganesh Chand was prejudiced because he did not have enough time to campaign. Pramod Rae in comparison had the advantage because he was the acting Secretary. The last issue was not raised in the affidavits.

[8] Mr. Kapadia stated that ballot in the Regulation meant actual counting because the elections were conducted by postal ballot. The respondent's assertions he submitted led to absurdly because the Registrar could not physically supervise actual casting of votes in such circumstances of postal ballot.

[9] It is not in dispute that the elections were conducted by postal ballot. It is not disputed that the union members are scattered in various parts of Fiji and work at different financial institutions. Annexure U to the affidavit of Pramod Rae sworn on 6^th March 2006 shows the various locations where members were stationed. It also shows that as of 3^rd March 2004, assistant returning officer had begun receiving ballot papers back from various centres.

[10] The ballot papers were sent out on the 1^st March 2004. The posting of ballot papers was supervised by the respondent's officers and paragraph 18 of the affidavit of Taito Waqa sworn on 2^nd June 2006 confirms this.

[11] As the ballot papers were sent by post, they are unlikely to reach the recipients at the same time. Some members would get them before others. The members would actually cast their votes by ticking or crossing once they receive the ballot papers. Some might do this at work; others may take ballot papers home and perform the necessary act at home. Hence because the members are scattered all over Fiji, it would be an impossible task for the Union to specify "the date, time and place where and when ballot is to take place" that is, if ballot means casting of votes.

[12] The whole objective of postal ballot is convenience of the members so they can cast their vote in their own good time. The Registrar can hardly supervise the actual voting by the members. In fact it may be impossible to do so, given the scattered locations of the members.

[13] The view is even shared by the Assistant Registrar of Trade Unions. On 3^rd March 2004 he wrote to Ganesh Chand - annexure F in Pramod Rae's affidavit. In it he stated that all preparations and packaging of ballot papers were found to be satisfactory with us. Later on he stated "since the mode of balloting applied for was postal balloting, the Ministry is not obligated to supervise balloting except for the counting of ballots".

[14] The word ballot is not defined in the Regulations or the principal Act. Assistance for its meaning may be derived from its dictionary meaning. The word 'ballot' is used as a noun. The noun meanings of the word ballot given in the Oxford Advanced Learner's dictionary 4^th edition are:

(a) piece of paper used in secret voting;

(b) system of secret voting;

(c) number of votes recorded in a ballot.

[15] Given that the elections were held by postal ballot and the fact that the members of the Union are scattered in various parts of Fiji, the only logical and practical meaning the word "ballot" can refer to is the actual counting of the votes to find out the number of votes cast. Accordingly the Registrar misinterpreted the Regulation 10A.

[16] It took the Registrar two years before he made the decision. Granted there were two actions filed but there was nothing stopping him from deciding on the matter. Justice Jitoko in his decision dated 11^th November 2000 stated that the action was premature because the Registrar had not made a decision.

[17] In the other civil action HBC 88 of 2004 the Assistant Registrar for Trade Union confirmed that an appropriate 21 days notice was given and that the postal balloting system was normal procedure and quite fair - see pages 4 and 5 of annexure V. Now two years latter the Registrar has taken the opposite view.

[18] Accordingly I order a certiorari to remove the decision of the Registrar of Trade Unions made on 9^th February 2006 in this court and quash the same. I also order costs summarily fixed in the sum of $700.00 to be paid in twenty-one (21) days.

[Jiten Singh]
JUDGE

At Suva
2^nd February 2007