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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION
Civil Action No.: 595 of 2007
BETWEEN:
FIJIAN TEACHERS ASSOCIATION
PUBLIC EMPLOYEES UNION
FIJI POST AND TELECOMMUNICATIONS ASSOCIATION
Plaintiffs
AND:
HIS EXCELLENCY THE PRESIDENT
OF THE REPUBLIC OF THE FIJI ISLANDS
RATU JOSEFA ILIOLOVATA ULUIVUDA
First Defendant
AND:
INTERIM MINISTER FOR LABOUR AND
INDUSTRIAL RELATIONS, TOURISM AND ENVIRONMENT
Second Defendant
INTERIM ATTORNEY-GENERAL AND
MINISTER OF JUSTICE OF THE REPUBLIC OF THE FIJI ISLANDS
Third Defendant
Appearances:
Mr S. Banuve for the Plaintiffs
Mr AK Narayan for Defendants
Date of Hearing: 25 March 2008
Date of Judgment: 31 March 2008
JUDGMENT
1. Introduction
The original proceeding was commenced by Originating Summons supported by an Affidavit of Attar Singh (F/n Jagessar Singh), General Secretary of the Fiji Posts and Telecommunications Employees Association (FPTEA) and General Secretary of the Fiji Islands Council of Trade Unions (FICTU)(1st FICTU Affidavit)
1.1 The proceeding centres upon the Employment Relations Promulgation 2007 (Promulgation No 36 of 2007) (the Employment Relations Promulgation).
1.2 According to a ‘Chronology of Events on the Employment Relations Bill’ being Annexure CTP-1 to an Affidavit of the Solicitor General filed in the proceeding on 20 March 2008 (Solicitor General’s Affidavit), the Employment Relations Promulgation began as the Industrial Relations Bill in the second half of 2002. From the material before the Court it is not clear precisely when the title of the Industrial Relations Bill was changed to the Employment Relations Bill, however that title appears to have attached to the proposed legislation by the latter half of September 2004 when in its third draft: Solicitor General’s Affidavit, Annexure CTP-1
1.3 By the end of September 2005, that is a year later, the Employment Relations Bill No. 16 of 2005 was presented in the Lower House of the Fiji Parliament for the Bill’s Second Reading. This Bill lapsed in March 2006 due to Parliament’s being prorogued and the calling of the 2006 General Elections. It was reintroduced into Parliament in June 2006: Solicitor General’s Affidavit, Annexure CTP-1; also 1st FICTU Affidavit, paras 5, 6
1.4 On 5 December 2006 the Bill was ‘nullified’ due to political events occurring on that day. In the subsequent absence of Parliament, the First Defendant (the President) ‘with the approval of the Interim Cabinet ... purported to enact the Employment Relations Promulgation 2007 in place of the [Employment Relations] Bill’: 1st FICTU Affidavit, para 18; also Solicitor General’s Affidavit Annexure CTP-1
1.5 The Plaintiffs challenge the legality of the Employment Relations Promulgation by reference to the Constitution and, in particular, sections 45, 46, 85, 96(2), and Chapter 6, Part 1.
2. Substantive Proceeding
The Originating Summons procedure was challenged by the Defendants. On 18 February 2008 amongst other matters the Court refused the Defendants’ strike out application and ordered the parties to file and serve pleadings.
2.1 The Plaintiff’s Statement of Claim filed on 28 February 2008 seeks relief consistent with that sought in the Originating Summons, namely:
2.2 The Defence filed by the Defendants on 7 March 2008 contests various matters set out in the Statement of Claim and says the action should be dismissed with costs. The Plaintiffs in their Reply filed on 12 March 2008 say that the Defendants’ Statement of Defence should be dismissed with costs. The Amended Defence filed on 20 March 2008 reiterates that the Plaintiffs’ action should be dismissed with costs.
3. Case Management of Proceedings
The substantive proceeding would have proceeded to hearing in the ordinary way, except for two matters of principal importance, the one dictating that the Plaintiffs should seek a stay of the Employment Relations Promulgation, the other dictating that the Defendants should seek a stay of the hearing of the substantive proceeding pending the outcome of two independent proceedings also before the High Court.
3.1 The Plaintiffs have been concerned to have the substantive proceeding heard and determined before the Employment Relations Promulgation comes wholly into effect on 2 April 2008. Should that not be possible, then the Plaintiffs have sought a stay of the coming into effect of the Employment Relations Promulgation, pending the hearing and determination of the substantive proceeding.
3.2 The Defendants have been concerned that matters raised in the current proceeding are the same as, or overlap with, matters raised in Laisenia Qarase, Ratu Naiqama Lalabalavu, Ro Teimumu Kepa, Ratu Suliana Matanitobua, Aid Sivia Qoro and Josefa Vosanibola; and Ratu Apenisa Kalokalo Loki and Peceli Kinivuwai v. Josaia Voreque Bainimarama, The Republic of Fiji Military Forces, The State of the Republic of the Fiji Islands and the Attorney General of the Interim Regime (HC Action No. 60 of 2007S) (Qarase case) and Republic of the Fiji Islands and Attorney-General v. Laisenia Qarase, presently of Mavana Village, Vanuabalavu, Lau, former Prime Minister and Josefa Vosanibola, former Minister for Home Affairs HCCA No. 398 of 2007S)(Republic and A-G v. Qarase and Vosanibola). The Solicitor General’s Affidavit identifies them as including ‘the power of the President to make promulgations after 5 December 2006, and the justiciability of such action’: para 5 Hence, the Defendants have sought a stay of the hearing of the substantive proceeding pending the outcome of the Qarase case and Republic and A-G v. Qarase and Vosanibola.
3.3 In addition to the orders for pleadings made on 18 February 2008, this Court refused the Defendants’ application for a stay of the substantive proceeding, leaving open the possibility that the Defendants might make another application should circumstances change. At that time, no determination was made as to the Plaintiff’s application for a stay of the coming into effect of the Employment Relations Promulgation. This course was taken because as at 18 February 2008, the Qarase case and Republic and A-G v. Qarase and Vosanibola were scheduled for hearing in the week commencing 11 March 2008. In my view, proper case management required that the Court be able to take into account the progress of those proceedings because:
3.4 Timetabling was set accordingly.
3.5 In the event, the Qarase case and Republic and A-G v. Qarase and Vosanibola were heard as scheduled and a decision reserved.
3.6 As at 25 March 2006 when this proceeding came back before me, it appeared clear and as I believe the parties accepted that although the Qarase case and Republic and A-G v. Qarase and Vosanibola had been finalised insofar as the hearing having been concluded, no decision would be handed down prior to or by 2 April 2008. Hence, the stay applications of the respective parties need be addressed.
4. Present Matters Before the Court
By Summons filed 18 March 2008 together with an Affidavit of Attar Singh f/n Jagessar Singh filed (2nd FICTU Affidavit), the Plaintiffs sought the following Orders:
(i) A stay restraining the Second Defendant (Interim Minister for Labour, Industrial Relations, Tourism and Environment) from implementing the Employment Relations Promulgation 2007 (Promulgation No 36 of 2007) pursuant to Legal Notice No 93 of 2007 pending the hearing and determination of High Court Civil Action No 595 of 2007.
(ii) Such further or other relief as this Court shall deem just.
(iii) Costs.
4.1 In turn, by Summons filed 20 March 2008 together with the Solicitor General’s Affidavit, the Defendants sought Orders as follows:
(i) Further and/or in the alternative that the present action be stayed pending the hearing and determination of the High Court Civil Action Numbers HBC 60 of 2007S and HBC 398 of 2007S pursuant to liberty reserved.
(ii) Alternatively that there be a trial of a preliminary point that the requirements of the Constitution were substantially complied with in passage and promulgation of the Employment Relations Promulgation 2008 and thus the said promulgation is valid and legal legislation.
5. Application for Stay – Matters to be Considered
An issue is raised whether what is sought by the Plaintiffs is a stay or an interim injunction in respect of the Employment Relations Promulgation at this stage. The Defendants say that what the Plaintiffs seek in the present application is injunctive relief rather than a stay. Whatever the case, the principles to be considered generally are the same, and this is the basis upon which the applications by the Defendants – for a temporary stay of proceedings, and the Plaintiffs – for a temporary stay (in their terms) or interim injunction (in the Defendants’ terms), are considered here.
5.1 (a) General: In Mataqali Namatua v. NLFC and 3 Ors (No. ABU0020 of 2004S, 4 March 2005), the Court of Appeal reiterated the factors to be considered in the grant of interlocutory injunctions, which I adopt for the purpose of the applications for a stay made by each of the parties in this proceeding. The Court of Appeal said:
The principles for granting interlocutory injunctions as set out in American Cyanamid Co. v. Ethicon Ltd [1975] UKHL 1; [1975] AC 396 which have been applied in Fiji are:
(a) The Plaintiff must establish that there is a serious question to be tried.
(b) The inadequacy of damages to compensate the Plaintiff by the Defendant.
(c) If the Plaintiff satisfies the tests, the grant or refusal of an injunction is a matter for the exercise of the Court’s discretion on the balance of convenience: para [27]
5.2 In Manitoba (AG) v Metropolitan Stores Ltd 1987 CanLII 79 (S.C.C.); [1987] 1 SCR 110; (1987) 38 DLR (4th) 321; [1987] 3 WWE 1; [1987] 25 AdminLR 20; http://www.canlii.org/en/ca/scc/doc/1987/1987canlii79/1987canlii79.html the Supreme Court of Canada elaborated upon the damages test:
The second test consists in deciding whether the litigant who seeks the interlocutory injunction would, unless the injunction is granted, suffer irreparable harm, that is harm not susceptible or difficult to be compensated in damages. Some judges consider at the same time the situation of the other party to the litigation and ask themselves whether the granting of the interlocutory injunction would cause irreparable harm to this other party if the main action fails. Other judges take the view that this last aspect rather forms part of the balance of convenience: para [35], at 14
5.3 As to the exercise of the Court’s discretion per the final aspect of the matters to be considered, the Supreme Court of Canada said:
The third test, called the balance of convenience and which ought perhaps to be called more appropriately the balance of inconvenience, is a determination of which of the two parties will suffer the greater harm from the granting or refusal of an interlocutory injunction, pending a decision on the merits: para [36], at 14
5.4 (b) Public Interest: Manitoba (AG) v. Metropolitan Stores Ltd is particularly helpful in the present case, for the Supreme Court of Canada there had to consider what effectively arises in here – the part ‘public interest’ plays in a case where the constitutional validity of a legislative provision (as in that case) or legislation as a whole (as in the present case) is challenged. Referring to Lord Diplock’s observation in American Cyanamid that there ‘may be many other special factors to be taken into consideration in the particular circumstances of individual cases’, the Supreme Court of Canada went on to say that the ‘consequences for the public as well as for the parties, of granting a stay in a constitutional case, do constitute "special factors" to be taken into consideration’, and went on:
The Balance of Convenience and the Public Interest
A review of the case law indicates that, when the constitutional validity of a legislative provision is challenged, the courts consider that they ought not to be restricted to the application of traditional criteria which govern the granting or refusal of interlocutory injunctive relief in ordinary private or civil law cases. Unless the public interest is also taken into consideration in evaluating the balance of convenience, they very often express their disinclination to grant injunctive relief before constitutional invalidity has been finally decided on the merits.
The reasons for this disinclination become readily understandable when one contrasts the uncertainty in which a court finds itself with respect to the merits at the interlocutory stage, with the sometimes far-reaching albeit temporary practical consequences of a stay of proceedings, not only for the parties to the litigation but also for the public at large: paras [39][40]
5.5 It bears referring further to what the Supreme Court of Canada had to say as to the impact on decision-making of the public interest in applications for injunctions involving the Constitutionality of legislation:
Although constitutional cases are often the result of a lis between private litigants, they sometimes involve some public authority interposed between the litigants, such as the [Labour] Board in the case at bar. In other constitutional cases, the controversy or the lis, if it can be called a lis, will arise directly between a private litigant and the State represented by some public authority: Morgentaler v. Ackroyd (1983) 42 OR 659.
In both sorts of cases, the granting of a stay requested by the private litigants or by one of them is usually aimed at the public authority, law enforcement agency, administrative board, public official or minister responsible for the implementation or administration of the impugned legislation and generally works in one of two ways. Either the law enforcement agency is enjoined from enforcing the impugned proviso in all respects until the question of their validity has been finally determined, or the law enforcement agency is enjoined from enforcing the impugned provisions with respect to the specific litigant or litigants who request the granting of a stay. In the first branch of the alternative, the operation of the impugned provisions is temporarily suspended for all practical purposes. Instances of this type can perhaps be referred to as suspension cases. In the second branch of the alternative, the litigant who is granted a stay is in fact exempted from the impugned legislation which, in the meanwhile, continues to operate with respect to others. Instances of this other type, I will call exemption cases: paras [54][55], at 17-18
5.6 In the present proceeding, the Plaintiffs seek suspension of the Employment Relations Promulgation at least insofar as those provisions scheduled to come into effect on 2 April 2008: they do not seek exemption of themselves and their members alone, but a stay in respect of the whole of the employers and workforce within Fiji who and which would otherwise be covered by the Employment Relations Promulgation.
5.7 Albeit, as will become clear in the following extract, there is a fundamental difference in the Constitutional challenge in Manitoba (AG) v. Metropolitan Stores and in the present proceedings (just as there is when looking at the situation involving the Australian Work Choices Act 2006 (Cth) and the High Court challenge there, to which I later refer), that difference does not, in my opinion, interfere with the applicability of the Canadian Supreme Court’s view as to the importance of the public interest in ‘answering’ the third (and perhaps the second and third) test under American Cyanamid:
Whether or not they are ultimately held to be constitutional, the laws which litigants seek to suspend or from which they seek to be exempted by way of interlocutory injunctive relief have been enacted by democratically-elected legislatures and are generally passed for the common good, for instance: the providing and financing of public services such as educational services, or of public utilities such as electricity, the protection of public health, natural resources and the environment, the repression of what is considered to be criminal activity, the controlling of economic activity such as the containing of inflation, the regulation of labour relations, etc. It seems axiomatic that the granting of interlocutory injunctive relief in most suspension cases and, up to a point, as will be seen later, in quite a few exemption cases, is susceptible temporarily to frustrate the pursuit of the common good.
While respect for the Constitution must remain paramount, the question then arises whether it is equitable and just to deprive the public, or important sectors thereof, from the protection and advantages of impugned legislation, the invalidity of which is merely uncertain, unless the public interest is taken into consideration in the balance of convenience and is given the weight it deserves. As could be expected, the courts have generally answered this question in the negative. In looking at the balance of convenience, they have found it necessary to rise above the interests of private litigants up to the level of the public interest, and, in cases involving interlocutory injunctions directed at statutory authorities, they have correctly held it is erroneous to deal with these authorities as if they have any interest distinct from that of the public to which they owe the duties imposed upon them by statute: paras [56][57], at 18
5.8 The Constitutional challenge here goes to the heart of the legislative process. That is, the very challenge is that the legislation was not passed by a democratically elected Parliament. Nonetheless, as I have said, the public interest remains essential in the balancing or weighing of (in)convenience and irreparable harm. In their reliance upon Manitoba (AG) v. Metropolitan Stores Ltd I understand the Plaintiffs to see this as a matter to be considered, also.
5.9 (c) Temporary/Interim Stay or Interim Injunction: In addition to the public interest aspect, other matters that have arisen in the proceeding include the Defendants’ proposition that the application by the Plaintiffs for a stay of the Employment Relations Promulgation is in effect an application for an interim injunction. This Court, say the Defendants, has no power to issue an interim injunction against the Second Defendant, the Interim Minister for Labour and Industrial Relations, Tourism and Environment because section 15 of the Crown Proceedings Act (Cap 24) precludes this.
5.10 Section 15 says:
(1) In any civil proceedings by or against the Crown the Court shall, subject to he provisions of this Act, have power to make all such orders as it has power to make in proceedings between subjects, and otherwise to give such appropriate relief as the case may require.
Provided that –
(a) where in any proceedings against the Crown any such relief is sought as might in proceedings between subjects by granted by way of injunction or specific performance, the Court shall not grant an injunction or make an order for specific performance, but may in lieu thereof make an order declaratory of the rights of the parties; and
(b) in any proceedings against the Crown for the recovery of land or other property the Court shall not make an order for the recovery of the land or the delivery of the property, but may in lieu thereof make an order declaring that the plaintiff is entitled as against the Crown to the land or property or to the possession thereof.
(2) The Court shall not in any civil proceedings grant any injunction or make any order against an officer of the Crown if the effect of granting the injunction nor making the order would be to give any relief against the Crown which could not have been obtained in the proceedings against the Crown.
5.11 In support of their position, the Defendants cite Vodaphone Fiji Ltd v. Minister for Information, Communications and Media Relations (HBC0576.2005, 20 January 2006) wherein His Lordship Justice Singh said that the section 15 limitation ‘did not apply to applications for judicial review as these were proceedings which formerly fell on the Crown side of the King’s Bench Division ...’: citing Davidson v. Scottish Ministers (2005) UKHL 74 His Lordship went on to say that what was said in Davidson and in M. v. Home Office relates to ‘judicial proceedings and ... ought to be confined to judicial review proceedings’. He said that these cases do not suggest that courts ‘have general power to make coercive orders against the Ministers of the State in all proceedings’: Defendants’ Written Submissions, 27 March 2008
5.12 There are conflicting authorities on this issue, as also acknowledged by the Plaintiffs: Written Submissions, 25 March 2008
5.13 (d) Power to Stay an Executive Decision Already Made: The Plaintiffs address the question raised in this Court’s earlier judgment of 18 February 2008, namely whether the Court has the power to stay an executive decision already made. The Plaintiffs refer to R. v. Secretary of State for Education and Science; Ex parte Avon County Council [1991] 1 QB 558 and Minister of Foreign Affairs, Trade and Industry v. Vehicles and Supplies Ltd [1991] 1 WLR 550, the first of which put the view that ‘proceedings’ had a broad meaning which enables decisions to be included within the scope of the courts’ inherent power to stay proceedings; the latter of which said that there can be no stay of an executive decision already made. The Plaintiffs observe that academic texts have taken the broader view and rely upon the Avon County Council case. However, the Defendants response is, as earlier noted, that these are judicial review cases and that there can be no ‘stay’ or ‘injunction’ against a Minister of the Crown in other proceedings – such as here, a proceeding instituted originally by Originating Summons and now by way of pleadings.
5.14 This raises the question whether under inherent jurisdiction the Court has power to grant a temporary or permanent stay of the Employment Relations Promulgation, by reference to the Court’s inherent jurisdiction to stay proceedings, including ‘where such order is demanded by the circumstances of the case in order to prevent injustice’.[1] [2]
5.15 It is against this backdrop that the applications now before the Court must be dealt with.
6. Employment Relations Promulgation – Content and History
On Friday 5 October 2007, the Fiji Islands Government Gazette Supplement no. 47 of 2007 published Legal Notice No. 93 dealing with the Employment Relations Promulgation. The ‘Commencement Notice’ provided that the BR Ganilau, then listed as the Minister for Labour, Industrial Relations, Tourism and Environment, ‘in exercise of the powers conferred upon me by section 2 of the Employment Relations Promulgation’, appointed:
(a) the 1st day of October 2007 as the commencement date for the following provisions of the Employment Relations Promulgation 2007 –
- (i) the Preamble and the Long title;
- (ii) Part 1;
- (iii) Part 3;
- (iv) Part 4;
- (v) Part 14;
- (vi) Part 15;
- (vii) Section 264;
- (viii) Schedule 1;
(b) The 2nd day of April 2008 as the commencement date for the following provisions of the Employment Relations Promulgation 2007 –
- (i) Part 2;
- (ii) Parts 5 to 13;
- (iii) Parts 16 to 22;
- (iv) Schedules 2 to 8.
Dated this 1st day of October 2007: 1st FICTU Affidavit, Annexure A6
6.1 This means that on 1 October 2007 the following provisions of the Employment Relations Promulgation came into force and when the Plaintiffs commenced the substantive proceeding by way of Originating Summons filed on 21 December 2007 had been in force for some two and a half months:
Part 1 – Preliminary
Part 3 -Employment Relations Advisory Board
Part 4 – Appointments, Powers and Duties of Officers
Part 14 –
115. Objects of this Part
116. Registrar and other officers
117. Protection of officers
118. Register of trade unions
119. Application for registration
120. Registration
121. Power of Registrar to call for further particulars
122. Alteration or change of name of trade unions
123. Amalgamation of trade unions
124. Affiliation to federation of trade union
125. Refusal of registration
126. Certificate of registration
127. Officers of a trade union
128. Inspections of accounts
129. Annual Returns
130. Constitution and rules
131. Right of members to access constitution and rules
132. Registered office and postal address
133. Cancellation or suspension of registration
134. Consequence of suspension of registration
135. Effect of cancellation of registration
136. Powers of Liquidator and Registrar in winding up
137. Closure of original liquidation on appointment of liquidator
138. Notification in Gazette
139. Appeal against decisions of Registrar
140. Certain Acts do not apply
Part 15 – Rights and Liabilities of Trade Unions
141. Object of this Part
142. Trade unions not unlawful
143. Immunity from civil suit
144. Registered trade union as corporate body
145. Access to workplaces
146. Liability in contract
147. Proceedings by and against trade unions
Section 264 – Regulations
Schedule 1 – Guidelines for Labour-Management Consultation and Cooperation: 1st FICTU Affidavit, Annexure A4
6.2 In accordance with the 1 October gazettal, the following provisions of the Employment Relations Promulgation 2007 are scheduled to come into effect on 2 April 2008:
Part 2 – Fundamental Principles and Rights at Work
Part 5 – Contracts of Service
Division 1 – General
Division 2 – Written Contracts
Part 6 – Protection of Wages
Division 1 – General
Division 2 – Wages Council
Part 7 – Holidays and Leave
Part 8 – Hours of Work
Part 9 – Equal Employment Opportunities
Part 10 - Children
Part 11 – Maternity Leave
Part 12 – Redundancy for Economic, Technological or Structural Reasons
Part 13 – Employment Grievances
Part 16 – Collective Bargaining
Division 1 – Good Faith
Division 2 – Bargaining
Division 3 – Collective Bargaining
Part 17 – Employment Disputes
Part 18 – Strikes and Lockouts
Part 19 – Protection of Essential Services, Life and Property
Part 20 - Institutions
Division 1 – Mediation Services
Division 2 – Employment Relations Tribunal
Division 3 – Employment Relations Court
Division 4 – Other General Provisions
Division 5 – Appeals
Part 21 – Offences
Part 22 – Miscellaneous
Schedule 2 – Particulars of Written Contract of Service for Individual Employment Contract
Schedule 3 – Constitution and Procedures of Wages Councils
Schedule 4 – Standard Clauses on Procedures for Settlement of Employment Grievances
Schedule 5 – Provisions which must be made in the Rules of a Registered Trade Union
Schedule 6 - Standard Clauses on Procedures for Settlement of Disputes
Schedule 7 - List of Essential Services
Schedule 8 - Fixed Penalty Offences: 1st FICTU Affidavit, Annexure 4
6.4 All these provisions show the breadth and depth of the Employment Relations Promulgation and go to the question of whether a stay or interim junction should be granted to the Plaintiffs to prevent the provisions coming into effect which are scheduled for 2 April 2008. So too does the history of the Employment Relations Promulgation as set out in the 1st FICTU Affidavit and also in the Solicitor General’s Affidavit, Annexure CTP-1, ‘Chronology of Events on the Employment Relations Bill’ (the Chronology).
6.5 I emphasise that the setting out of the provisions and of the history does not address and should not be taken to address or even to touch upon the ultimate question before the Court in the substantive proceeding, namely the Constitutionality or otherwise of the Employment Relations Promulgation. It serves a purpose going, as I have said, to the question immediately before this Court in the current applications.
6.6 I have earlier referred briefly to the Chronology. Greater detail is in my opinion necessary. Just as the breadth and depth of the scope of the Employment Relations Promulgation goes to the question of public interest, so too those matters set out in the Chronology and in the 1st FICTU Affidavit go directly to the question of whether or not a stay or interim injunction should be granted in accordance with the Plaintiffs’ application and also to the Defendants’ temporary or interim stay application (along with the matters of duplication and cost of proceedings raised by the Defendants). Again, these matters are relevant to the public interest and, in my opinion, assist in the practical question that has to be asked in addressing ‘irreparable damage’ and ‘balance of convenience’ or, as it has been put in the Manitoba (AG) v. Metropolitan Stores Ltd case, the ‘balance of inconvenience’.
6.7 The Chronology commences as at 30 July 2002 when it is said that Cabinet decided:
6.8 On 18 September 2002, the Chronology provides that the First Draft of the Industrial Relations Bill ‘was circulated to all the Govt. Ministries, social partners, NGOs and other interest groups for comments’. Some three months later, on 5 December 2002, ‘in pursuance to above, LAB Sub-committee [comprising representatives of workers and employers and Government] was formed to scrutinize the Bill’.
6.9 Early the following year, on 12 February 2003, the preliminary meeting of the Committee ‘was held with an objective to formulate a procedure or methodology for adoption by the committee in finalising the Bill’ and adopted the following:
6.10 On 15 March 2004, according to the Chronology the Bill was forwarded to the International Labour Organisation (ILO) Office for comments and advice as to whether the provisions of the Bill aligned with the ILO Conventions.
6.11 In February and March 2002, the ‘first round of meetings’ began with the LAB subcommittee scrutinizing the Bill ‘clause by clause’. Various other consultations took place with employers and workers representatives, the workers representatives having in their employ a consultant Mr OP Singh whose consultations apparently included communications in Aotearoa/New Zealand. In March 2003 the Chronology indicates that the ILO provided comments, then on 4 April 2003 the ‘second round of meetings commences’ with the Committee ‘re-examining the Bill clause by clause in an attempt to reach a common ground’. This ‘second round’ concluded on 9 April 2003. All these consultations or discussions resulted in a ‘consolidated document clearly setting the position of each party’ on 15 April 2003, copy of which was provided to members and a revised draft of the Bill was to be commenced by the Solicitor General.
6.12 A study visit is listed as taking place to the Aotearoa/New Zealand Employment Authority from 17 to 19 June 2003. In July 2003 internal consultations were organised in which Managers and officers of the National Planning Office and Public Service Commission participated. In that month a joint meeting is shown as having been held with Workers Representatives for comments on the draft Bill and later a consolidated report was produced.
6.13 The following month, August 2003, the Chronology lists a joint meeting held with Employers Representatives, and a consolidated report submitted to Ratu Joni Madraiwiwi, engaged as a consultant through ILO funding and with the concurrence of the Office of the Solicitor General to assist in drafting of the Bill.
6.14 In September a one-day workshop is shown as being held for Permanent Secretaries. In that month the Chronology indicates that ILO Consultant Ratu Joni Madraiwiwi presented the revised Bill to the Ministry, with further scrutiny being undertaken.
6.15 Again according to the Chronology, in March 2004 the revised Bill was circulated to all key stakeholders, then a joint meeting was held between the Solicitor General’s Office and the Labour Ministry, again examining the Bill ‘Clause by Clause’ and the Solicitor General agreeing to form its own task force to review various parts of the Bill particularly relating to ‘Trade Disputes and the establishment of institutional mechanisms that were new concept in the Bill’. A serious of papers were being worked on ‘covering the entire spectrum of the Bill for presentation to the Development Sub-Committee...’, with papers on Contracts and Leave, Rights and Responsibilities, Trade Unions and Trade Disputes, and Institutional Mechanisms. The Chronology says:
The purpose of this exercise was to alert the Government, being the largest employer, the likely implications of the Bill and simultaneously obtain the views of the DSC on important policy decisions that need to be taken into account before finalizing the Bill’: Chronology
6.16 The Chronology provides that throughout March 2004 these papers were presented and ‘comments noted’. Throughout April 2004 further steps were taken including ‘an ongoing awareness exercise’ involving presentation of the Bill to Fiji Employers Federation at Suva with some 70 participants and in May 2004 there were presentations to the Fiji Hotel Association, Divisional and District Officers of the Labour Ministry, and a panel discussion on the Bill at the Bi-Annual Conference of Fiji Trade Union Congress at Nadi.
6.17 In June a Task Force held a series of meetings redrafting the Bill and engaging in a three day retreat which produced a rough copy of the updated draft Bill on 18 June 2004, says the Chronology, with comments from the Chief Justice requested in relation to that part of the Bill relating to the jurisdiction of the Court.
6.18 Through July and August, according to the Chronology a ‘series of meetings were held by the Task Force to re-draft the Bill based on the comments received from stakeholder while accommodating Government’s policy decision’. It was around this time that it appears the Bill gained the new title of Employment Relations Bill (as a ‘working title’), being circulated on 1 September 2004 ‘to all the stakeholders, LAB members for comments on the text of the Bill by 14th September 2004’. This was the third draft Bill by the Task Force Team.
6.19 It appears from the Chronology that from September through October 2004 there were various deliberations and consultations, and a series of meetings of the Cabinet Sub Committee on Legislation, going through 149 clauses out of 267 clauses, spread over 15 Parts of the Bill. This was, says the Chronology, ‘over 50% of the entire Bill’.
6.20 Commencing on 13 January 2005, according to the Chronology there were meetings and deliberations of the CSL (Cabinet Subcommittee Legislation), then in February a LAB Workshop at the Holiday Inn. At the end of February 2005, according to the Chronology a ‘road show’ commenced from Rakiraki with a presentation at the Community Hall with some 20 people having the ‘entire Bill ... explained’. Next was an audience of some 25 comprising mainly management from Emperor Gold Mine and Union Executives at the Police Bure, then the ‘roadshow’ moved to Ba, thence to Lautoka and to Nadi, through from February into March, then to Sigatoka and Vanualevu and on 17 March 2005 as listed in the Chronology a presentation was held in Savusavu. Listed in the Chronology, March 2005 also included presentations by the ‘travelling road show’ in Taveuni and culminated in Suva with participation of ‘all sectors including NGOs and Women groups’.
6.21 The Chronology records a presentation to ‘300 level Students in IR at USP’ for 2 hours on 8 April and on 28 April 2005 the Bill was tabled. A final draft was passed by the Cabinet Sub Committee on Legislation (CSL) and submitted to Cabinet on 9 May 2005. At the end of that month the Bill was presented to a Judges Seminar organised by the National Judicial Education Committee coordinated by Madam Judge Mere Pulea.
6.22 As noted earlier, it appears from the Chronology that the Employment Relations Bill No. 16 of 2005 was presented for the Bill’s Second Reading in the Lower House of the Fiji Parliament on Monday 26 September 2005. it was then referred to the Sector Standing Committee on Economic Services and subsequently various Awareness Workshops on the Bill where held at various venues from the end of October 2005 and into November 2005, the Chronology listing 67 participants in total at three of these, 63 at two session in another, and 28 in a further session, concluding on 11 November 2005 with a session of 12 people, then on 16 November 2005 the Chronology indicates a presentation was made of the Bill to the National Seminar of the Fiji Women’s Rights Movement.
6.23 The Chronology records further presentations and briefings through November and December of 2005. From January 2006, the Chronology lists presentations and submissions, as well as various clarifications, meetings and public hearings. There were submissions by the Fiji Disabled Peoples Association, Clarifications on the Sugar Industry, submissions by Fiji Employers Federation, meetings with union representatives and Sugar Cane Growers Council as well as the Emperor Gold Mining Co Limited. Lautoka City Council Meeting Chambers hosted a public hearing and informal meeting. Amongst others the Chronology says there were submissions by Air Terminal Services & Airports Fiji Limited, Federated Airline Staff Association, and a public hearing at Nadi Civil Centre. Fiji Trade Union Congress made submissions, as did Fiji Law Society and Fiji Retailers Associations, the Ministry of Works and Energy, and commencing on 1 February submissions by the National Council of Women, Mark One Apparel Pty Limited and an explanation on issues raised by Fiji Council of Women.
6.24 Submissions continued throughout February and into March 2006. The Chronology lists that in March 2006 the 'Standing Committee undertook extensive public consultations and with stakeholders. It was on the verge of presenting its report to Parliament in March 2006 and the Bill lapsed due to the calling of the 2006 General Elections’.
6.25 As both the Plaintiffs and the Defendant agree, the Employment Relations Bill was reintroduced into Parliament in June 2006 when the new Parliament commenced its sittings. In June, September and December of 2006 the Bill went through its various stages, being in the Upper House in early December 2006.
6.26 The Chronology says that the ‘most contentious issues which emerged from the consultations with the public and stakeholders were the maternity leave provision, removal of trade union recognition, management of strikes and the list of essential services. These were resolved by amendment to the Bill before it was passed in the Lower House’. The Chronology goes on to say that on 30 September 2006:
The amended Bill (incorporating the changes recommended by the Sector Committee) was re-tabled in Parliament for third and final reading on 30 November 2006, when it had overwhelming support from both sides of the lower house allowing the Bill to be passed unanimously.
6.27 The Plaintiffs do not present an identical picture as the Defendants on this aspect, insofar as the Chronology refers to ‘overwhelming
support from both sides’ of the Lower House so that the Bill was ‘passed unanimously’, albeit the Plaintiffs acknowledge
the passage of the Bill from the Lower to the Upper House.
6.28 For the Plaintiffs, the following is stated amongst other matters in the 1st FICTU Affidavit:
A key objective of FICTU is to combat any measure, legislative or otherwise that would restrict, inhibit or subjugate the rights of workers and in this regard it has kept a close watch on the formulation and passage of the Employment Relations Bill through Parliament.
The Employment Relations Bill (hereinafter the Bill) was first introduced in Parliament on 26 September 2005 and referred to the Parliamentary Sector Committee for Economic Services for scrutiny. However due to Parliament being prorogued for he May 2006 General Elections, FICTU could not present its submissions on the Bill to the Committee at this session.
The said Bill was re-introduced into Parliament on 22 June 2006 and the matter referred to the Parliamentary Sector Committee again.
On 14 August 2006, FICTU presented its submissions on the Bill to the Committee, with the expectation that some of the issues raised in them would be included in the findings and recommendations of the Committee to be forwarded to the House of Representatives and the Senate when the Bill was placed before them for their consideration, as required by the Constitution ....: paras 4-7
6.29 The 1st FICTU Affidavit goes on to observe that the Bill:
... was passed by the House of Representatives at the end of November 2006 and was then sent to the Senate for its deliberations.
On 5 December 2006 Commodore Bainimarama the Commander of the Republic of Fiji Military Forces announced that he had taken over Government.
On 54 December 2006 the President signed a legal order purporting to dissolve the House of Representatives, citing the doctrine of necessity, and soldiers of the Republic of Fiji Military Forces entered Parliament and Terminated the Senate session on the same day. At that point the Senate had not had the opportunity to deliberate on the Employment Relations Bill ...: paras 11-13
6.30 It was this Bill which, having reached this stage of the parliamentary process, became the Employment Relations Promulgation and is now in issue in these proceedings.
7. Serious Matter to be Tried?
Taking the first test under American Cyanamid and Mataqali Namatua v. NLFC and 3 Others (No. ABU0020 of 2004S, 4 March 2005), the parties in this proceeding agree there is a serious matter to be tried. As observed in the earlier ruling on 18 February 2008, there is no dispute about this. It is clear to this Court that there is a serious issue to be tried. Having already determined upon this issue, the answer to the test on this aspect must be and is in the affirmative.
8. Damages, Irreparable Harm and Balance of (In)Convenience
The far more difficult question is that going to the test of irreparable harm and the question of convenience. Here, in my opinion, the public interest is of particular importance. It also seems to me that the public interest has a number of ‘faces’ in this proceeding or competing demands and perspectives.
8.1 (a) Plaintiffs and Public Interest: The Plaintiffs represent a particular part of the public – their membership, constituted by persons in paid employment, as well as the union officials; it is not simply a case of a ‘private’ individual with a ‘private’ concern alone. There is more at stake here, in my view, as regards the Plaintiffs and in my opinion it is proper for the Court to see the Plaintiffs as more than a private litigator or private individual commencing litigation with a private interest only. The Plaintiffs, as I understand it, would say that their public interest perspective goes beyond this, too: their membership and the paidworkforce is a part only of the whole community and nation of Fiji. Insofar as the Plaintiffs are concerned, as I understand it, the interest of the Plaintiffs goes to the welfare and wellbeing of Fiji as a nation, for it is the Constitution of Fiji which the Plaintiffs seek to uphold through their action. This is the nub of the claim in the substantive proceeding. Therefore, from their perspective, public interest is embodied solidly in their position and their claim – membership, officials, paidworkers generally, and the public of the nation of Fiji. In this matter, they would, I believe, say they effectively embody the public interest.
8.2 (b) Defendants and Public Interest: The Defendants may also be seen to represent ‘a’ or ‘the’ public interest. They say that as Government they represent the people of Fiji as a whole. This is the nature of government. This is why they claim for example that section 15 of the Crown Proceedings Act (Cap 24) applies. The duties and obligations of the President go to the wellbeing and welfare of the nation of Fiji and all those who dwell within it. The President in a sense embodies ‘public interest’. The Ministers of the Government – the Minister for Labour and the Attorney-General – would say that their mandate is to represent the interests of Fiji as a nation and to engage in good governance in the public interest. Certainly the essence of the Plaintiffs’ claim is that this perspective on the Defendants’ position is in contest: that is again the very nub of their action in the substantive proceedings. However, in my opinion at this stage to say that the Defendants do not in their roles represent the public interest would be to answer the very question before the Court which cannot be answered at this stage. Hence, in my view public interest is an issue on the side of the Defendants also.
8.3 As both the Plaintiffs and the Defendants say their positions are such as to represent what is in the public interest and they have competing claims, it is necessary to go beyond this to determine upon the public interest, which I do by reference to the Employment Relations Promulgation itself, its content and history of its making.
9. Employment Relations Promulgation – Content
The Plaintiffs say that the Employment Relations Promulgation will by its implementation ‘bring about major reforms to the existing industrial relations framework of this country with sweeping organizational, financial and legal implications’:
Some of the major reforms ... noted include:
(i) A review of the trade union recognition and collective bargaining processes.
(ii) Restrictions on the right to strike/take industrial action.
9.1 The Plaintiffs refer to the Canadian case Manitoba (AG) v Metropolitan Stores Ltd (1987), observing that albeit a stay was originally refused in that case, then granted on appeal, then ultimately the original refusal was reinstated upon further appeal, ‘a critical issue taken into account by the Court against stay were the consequence of granting the stay in relation to the public interest’. The Plaintiffs’ Written Submissions go on to point out:
These include:
1. The impugned law has been passed by a democratically elected Government for the common good.
2. What would the Defendants do pending the outcome of constitutional legislation?
The Plaintiffs submit that the assumption manifest in (1) does not apply in Fiji and with regard to (2) they submit that pending the determination of constitutionality the old laws may continue as it currently does.
The interest represented by the Plaintiffs and for the people of Fiji as to the validity of laws that are enacted to govern them in the absence of a lawfully elected Parliament, with respect, requires that a stay be granted on principle in this instance.
9.2 As noted, some of the legislation is in force already and has been so since 1 October 2007. This includes a major part dealing with unions, one of the stated concerns of the Plaintiffs. As earlier set out, Part 14 – Registration of Trade Unions is one of the Parts which came into effect on 1 October 2007. The objects of this Part are stated as:
(a) to provide for the registration of trade unions; and
(b) to stipulate minimum requirements to be observed by trade unions in their operations.
9.3 This Part makes provision for the Minister to ‘appoint a public officer as the Registrar of Trade Unions who will be responsible for the performance of the duties and functions assigned to the Registrar by or under this Promulgation’: s. 116(1) It provides also for the appointment of one or more Assistant Registrars of Trade Unions ‘for the purposes of this Promulgation’: s. 116(2)
9.4 A Register of trade unions must be kept by the Registrar containing prescribed particulars relating to every registered trade union; any alteration of change in name, constitution, officers, location or postal address of a registered trade union; and any other matters ‘required to be contained in the register by this Promulgation or the regulations’: s. 118(1)
9.5 Under section 119, all trade unions are obligated to be registered and an application for registration as a trade union must be made to the Registrar, signed by more than six (6) members, whilst no member is allowed to belong to more than one trade union. Various other mattes are mandated here, including the formalities of applications and the information obliged to be provided by trade unions.
9.6 Under section 120, the Registrar has the power to register a trade union for the Promulgation’s purposes and by section 121 the Registrar has power to call for further information to confirm that a trade union application complies with the Promulgation or that the trade union or proposed trade union is entitled to registration under the Promulgation. Section 122 provides for trade union names, so that if a name ‘is identical with the name of an existing registered trade union or any other registered body’ or in the opinion of the Registrar ‘so nearly resembles the registered name of a trade union or any other registered body as to be likely to deceive or mislead the public or the members of other trade unions or registered body; or in the opinion of the Registrar is undesirable, the Registrar ‘must request the applicant to alter the name of the trade union stated in the application and must not register the trade union until the alteration has been made’. A secret ballot by more than 50% of the members entitled to vote is necessary for a change of name of a registered trade union if applied for by a registered trade union: s. 122 (2)
9.7 Section 123 says that if two or more registered trade unions wish to amalgamate, then application must be made to the Registrar, supported in a secret ballot by more than 50% of all members of each of the applicant trade unions. Applications for amalgamation may be refused by the Registrar on various bases and other matters are covered by this section relating to dissolution of the original trade unions upon amalgamation, and the ‘take over’ of proceedings, actions, etc by the new amalgamated trade union from the trade unions thereby dissolved.
9.8 Section 124 covers the wish of a registered trade union to affiliate with any other trade union or trade union federation, and provides that this must be supported in secret ballot by more than 50% of all members of the trade union. Section 125 provides that the Registrar may refuse to register a trade union if the Registrar is satisfied that:
(a) the principal objects of the persons seeking registration are not in accordance with those set out in the definition of trade union;
(b) the trade union is used for unlawful purposes;
(c) the trade union has not complied with requirements for the registration of trade unions;
(d) any of the objects in the constitution or rules of the trade union are unlawful or conflict with this Promulgation;
(e) the proposed rules of the trade union will not make adequate provision for the matters to be specified in Schedule 5;[3] or
(f) the trade union is under the domination of the employer, whether by financial or other means, with the purpose of placing the trade union under the control of the employer.
9.9 Various other provisions cover the matters earlier listed in the recitation of the contents of the Promulgation and do, as the Plaintiffs say, appear to be far reaching. They include offences, for example, the secretary of a registered trade union who fails to comply with the provisions of section 129 relating to annual returns is liable on conviction to a fine not exceeding $1,000 or a term of imprisonment not exceeding three months or both: s. 129(4) A person ‘who knowingly makes or orders or causes or procures to be made a false entry in or omission from a statement, copy or list provided to the Registrar’ under subsections of section 129 (relating to accounts) ‘commits an offence and is liable on conviction to a fine not exceeding $2,000 or to a term of imprisonment not exceeding 6 months or both’: s. 129(5)
9.10 Amongst other matters, the Registrar has power to cancel or suspend the registration of a trade union and must do so if:
(a) the registration was obtained by fraud or misrepresentation;
(b) any of the objects of the trade union have become unlawful and the union fails to rectify any such unlawfulness within the period specified by the Registrar;
(c) the trade union has wilfully (after prior notice of contravention from the Registrar) contravened this Promulgation, or allowed a rule to continue in force which is inconsistent with this Promulgation, or has rescinded a rule providing for a matter for which provision must be made under section 130; or
(d) the trade union has ceased to exist: s. 133(2)
9.11 The Registrar may suspend or cancel registration if:
(a) the accounts of the trade union are not being kept in accordance with this Promulgation;
(b) registration was obtained by mistake;
(c) the trade union has been or is being used for an unlawful purpose or for a purpose inconsistent with its constitution or rules; or
(d) officers of the trade union have persistently and willfully failed to comply with the provisions of this Promulgation: s. 133(3)
9.12 If the registration of a trade union is suspended under section 133, then during the period of suspension the trade union does not enjoy rights, immunities or privileges of a registered trade union; its officers and members do not enjoy the rights or privileged accorded to officers and members of registered trade unions; and liabilities incurred by the trade union may be enforced against the trade union and its assets: s. 134(1)
9.13 Upon cancellation of registration of a trade union, the union ceases to exist as a body corporate and the Registrar may appoint liquidators; the union ceases to enjoy any of the rights, immunities or privileges of a registered trade union; no one thereafter may take part in management or organisation or purport to act as an officer of the trade union except to defend proceedings against the union or the dissolving of it and disposing of its funds and property in accordance with its rules and the Promulgation: s. 135(1)
9.14 As earlier noted, the other provisions governing trade unions deal with liquidators and notice being given by the Registrar in the Gazette of trade union applications for registration, registration or refusal of registration, cancellation or suspension of registration, change of name of a registered trade union, amalgamation of two or more registered trade unions, or dissolution of any registered trade union: ss. 137, 138 The final provisions in the Part deal with timelimits governing appeals against decisions of the Registrar: s. 139 and that subject to the Promulgation, the Cooperatives Act 1996, the Companies Act (Cap. 247) and the Industrial Associations Act (Cap. 95) do not apply to any registered trade union: s. 140
9.15 Part 15 which also came into effect on 1 October 2007 as earlier noted deals with ‘Rights and Liabilities of Trade Unions’. Its stated object is ‘to enable trade unions to function fully as social partners and as legal entities capable of incurring legal obligations’: s. 141 Further, ‘merely because they are in restraint of trade’ the purposes of a registered trade union ‘are not ... unlawful so as to render – (a) a member or an officer of the trade union liable to criminal prosecution for conspiracy or otherwise; or (b) an agreement or trust void or avoidable’: s. 142
9.16 Section 143 provides for immunity from civil suit for registered trade unions and officers and members of registered trade unions ‘in respect of an act done in contemplation or in furtherance of a dispute’. Section 144 provides for the holding of real and personal property, entering into contracts, suing and being sued, the doing of any other thing a person can legally do, and the doing of any other thing necessary for the purposes of the trade union’s constitution.[4]
9.17 Section 145 governs access and entry into workplaces by representatives of registered trade unions. It says that so long as authorised in writing by the trade union and with the consent of the employer ‘which shall not be withheld unreasonably’ such representative ‘has the right to enter a workplace for the purpose related to the union’s business without disrupting the work arrangement of the employer – (a) to discuss union business with union members; (b) to recruit workers as union members; or (c) to provide information on the union and union membership to any worker on the premises’.
9.18 Section 146 governs liability in contract, stating:
(1) A trade union is liable on a contract entered into by it or by an agent acting on its behalf, except a contract which is void or unenforceable at law.
(2) Nothing in this Promulgation enables a court of law to entertain legal proceedings instituted with the object of directly enforcing or recovering damages for the breach of any of the following agreements –
- (a) an agreement between members of a trade union concerning the conditions on which members of the trade union are or are not permitted to sell their goods, transact business, employ or be employed;
- (b) an agreement for the payment by a person of any subscription or penalty to a trade union;
- (c) an agreement for the application of the funds of a trade union:
- (i) to provide benefits to members other than benefits under a contributory provident fund or pension scheme;
- (ii) to provide contributions to an employer or worker who is not a member of the trade union, in consideration of the employer or worker acting in conformity with the rules or resolution of the trade union;
- (d) an agreement made between one trade union and another; or
- (e) a bond to secure the performance of an agreement.
(3) Nothing in this section renders unlawful any agreement listed in subsection (2).
9.19 Section 147 is headed ‘Proceedings by and against trade unions’ albeit it appears that it deals with proceedings against trade unions rather than by them, or concentrates more upon ‘proceedings against’ rather than ‘proceedings by’. Section 147(4) does effectively deal with both in that it relates to service of notices or other documents ‘required to be served on a registered trade union’ under the Promulgation.
9.20 The Plaintiffs made submissions to the Parliament in relation to both Part 14 and Part 15 of the Bill. The 1st FICTU Affidavit Annexure 3 contains the ‘Submissions on the Employment Relations Bill to the Parliamentary Sector Committee made by Fiji Islands Council of Trade Unions’ (Submission) on 14 August 2006. Amongst other matters, the Submission says:
Retain requirements for appointment of a trade union advisory committee [TUAC] as under current Trade Union Act and write this part. The Registrar should be required to act upon advice of the TUAC: Submission, p. 9
9.21 Section 124 should, according to the Submission, be deleted ‘as this is not a matter for the Registrar to decide. The unions should be free to decide under its own rules and inform the Registrar of their affiliation’: p. 9 Trade union principles are, says the Submission, interfered with by section 127(1)(b) in its ‘prohibiting assistance of any kind from an official of one union to another union’: p. 10 Sections 128 and 129 relating to accounts and inspections of accounts should be deleted ‘as these sections violate ILO Convention 87’: p. 10 The ‘sweeping powers’ of the Registrar under section 133(3) (relating to cancellation and suspension of trade unions) should not accrue to the Registrar so should be deleted.
9.22 As to Part 15, general comments are that it ‘legalizes State interference in internal union affairs in violation of ILO Convention 87. All such reference must be deleted including criminality and accompanying fines and sentencing: p. 10
9.23 Having regard to all the above matters, including the Plaintiffs Submission to the Parliament, submissions made by the parties in the present proceeding, and that Parts 14 and 15 came into effect on 1 October 2007, it appears that the Plaintiffs’ concern about the scope, breadth and coverage of the Employment Relations Promulgation vis-à-vis trade unions will not be assisted by a temporary stay or interim injunction in respect of 2 April 2008. The application in this regard is too late and could not have been ‘corrected’ by the hearing of the application at any earlier time for, as noted, the Originating Summons was filed on 21 December 2007, well after the date of the coming into affect of Part 14. Hence, I am bound to say that this concern cannot validly figure in the Court’s consideration of the public interest or in relation to the application for a stay generally.
9.24 I pass then to those Parts of the legislation scheduled to come into effect on 2 April 2008. I observe that the Plaintiffs’ Submission raises concerns about contravention of ILO Conventions in respect of Parts 14 and 15. There are also ILO Convention aspects relevant to the other Parts.
9.25 The Plaintiffs observe that the Industrial Relations Act of 1998, which the Employment Relations Promulgation has already replaced, in part, due to the coming into effect of various aspects on 1 October 2007 and is scheduled to replace entirely on 2 April 2008, is relatively recent and can remain operative should this Court grant the stay (or interim injunction) requested. This is put forward in support of the stay application and has force. On the other hand, there are aspects of the Employment Relations Promulgation which are not a replication or covered in other ways by the Industrial Relations Act. Therefore, in the public interest, these aspects require consideration.
9.26 The Chronology comments that the maternity leave provisions in the Employment Relations Bill was a major aspect raising concerns – as it is understood, both negative and positive. Part 11 of the Employment Relations Promulgation covers ‘Maternity Leave’, the object being stated as ‘to protect women and to ensure that they are not disadvantaged when taking maternity leave’. Section 101 says a woman employed in a workplace and who expects to give birth ‘is entitled to maternity leave and abstain from work for a period of 84 consecutive days subject to providing her employer with a certificate from a registered medical practitioner or registered nurse specifying the possible date of birth’: s. 101(1) That section further provides that a woman is entitled to paid maternity leave ‘(a) for the first 3 births to the normal remuneration she would have received as if she had been at work; and (b) for the 4th and subsequent births, to half the normal remuneration she would have received as if she had been at work’: s. 101(2)
9.27 Additionally, a certificate must be produced by the woman to her employer if she engages in paidwork ‘during the pre-confinement period’ so as to certify that she is ‘fit to work during that period: s. 101(3) Section 101 goes on to cover qualification for paid maternity leave, so that if at any time during the three months immediately before the birth of the child, ‘a woman was employed for a period of, or periods amounting in the aggregate to, not less than 150 days during the 9 months before the birth of her child, the woman is entitled to paid maternity leave’ as in section 102(2) The Permanent Secretary, labour officer or labour inspect determines amount of wages paid by each employer, if there is more than one employer from whom the woman is entitled to claim wages: s. 101(5) Further, if the woman is absent from paidwork for more than 84 consecutive days, she is ‘not entitled to wages in respect of the days in excess of 84 days’: s. 101(6)
9.28 Section 101 goes on to provide that a woman returning to her employment after maternity lave ‘(a) must be appointed to the same or equivalent position held prior to proceedings on maternity leave, without any loss of salary, wages, benefits and seniority; or (b) may be appointed to a higher position’: s. 101(7)
9.29 The position of a woman dying from ‘any cause before the expected birth or after the day of the birth of her child and before any wages to which she is entitled have been paid to her’ is covered by section 102, requiring that the employer or any of her employers bear liability for payment of the wages, which per section 103 (and subject to section 46) may be paid on behalf of the woman to someone authorised in writing by her or for a deceased woman to the Permanent Secretary in the absence of an authorised person.
9.30 Section 104 provides a restriction on termination, so that no woman must be terminated from employment on the ground of pregnancy and where termination occurs whilst a woman is pregnant, ‘the burden of disproving that the termination related to that condition rests with the employer’: s. 104(1)(2) An employer may give notice of termination if after three months from the expiration of maternity leave, ‘a woman remains absent from work, as a result of illness certified by a registered medical practitioner) arising out of her pregnancy or the birth of her child rendering her unfit for work: s. 104(3) If a woman is so terminated, then she is ‘deemed to have been employed up to and including her period of maternity leave for the purpose of computing her period of employment under this Part’: s. 104(4)
9.31 Looking at the public interest in relation to these provisions, it could be argued that there is a limited public interest in that the provisions cover ‘only’ woman who are actually pregnant or have been pregnant at the relevant time at least insofar as benefits accruing. Some may also consider that the provisions are ‘not enough’ and should be wider, greater, or not restricted as they are – for example, as to the need to provide a medical certificate if the woman wishes to continue in paid employment during the requisite ‘pre-confinement period’. Hence, it could be said that the public interest does not dictate the need for this Part of the Employment Relations Promulgation to come into effect on 2 April 2008, and granting the stay sought by the Plaintiffs will not be in breach of any public interest requirement, or that any public interest requirement does not outweigh the public interest in staying the Employment Relations Promulgation.
9.32 On the other hand, these provisions went through extensive consultation as indicated by the Chronology and as per the Chronology and the 1st FICTU Affidavit were before the Parliament and hence were subject to at least some input and possibilities for debate in that forum. Insofar as the public interest is in issue, it may be argued that the provisions go beyond the interest of women who are pregnant or have been pregnant at the relevant times as listed in these sections. That is, the support for women in paid employment who are or may become pregnant is a public interest issue for the whole community: there is the issue of women’s rights to paid employment, pregnant women’s rights, the rights of ‘pregnant couples’ as now described in the current idiom; the right of the community to ensure population growth; the need for employers to be able to retain experienced workers; the right of the community not to lose the input of experienced workers.
9.33 It could be argued that women who were not able to avail themselves of the maternity leave provisions because of a stay of the Employment Relations Promulgation could access their right not to be discriminated against in the workplace by reason of pregnancy, through endeavouring to apply the Constitutional provisions relating to non-discrimination on grounds of sex/gender and possibility disability. I observe that in some jurisdictions disability discrimination legislation has been employed to support the rights of pregnant women, albeit pregnancy is not a disability. On the other hand, the provisions for maternity leave go beyond what might be accessed through the Constitutional provisions, in their setting out clear requirements for maternity leave with regard to timing and paid maternity leave, etc.
9.34 If the maternity leave provisions were stayed, then it is no answer that these rights could be regained should the Employment Relations Promulgation be found ultimately to be Constitutional: that is, if the Plaintiffs’ substantive action were not to succeed. That is, there could be ‘back payment’, however the problem with maternity leave is that pregnant women require the support of paid leave at the time they need to take it: pregnancies can of course be planned, however, not all pregnancies are. If there were a stay, then some people (women or couples) could arguably ‘halt’ their desire to begin or add to their family ‘right now’; as noted, not all will be able to do this, however, and is it in the public interest that women or couples should be obliged to take such a step so that their rights under maternity leave provisions can be taken up if the legislation is found to be Constitutional? There is of course the alternative: if the maternity leave provisions are not stayed, and in the substantive proceeding the Employment Relations Promulgation is found to be un-Constitutional, then how would the situation be dealt with, where payments have be made in accordance with these provisions?
9.35 The provisions on non-discrimination generally and the rights of children are also relevant in considering the public interest question. Including the issue of maternity leave, Fiji’s commitment to the United Nations Convention on the Elimination of all Forms of Discrimination Against Women and the Convention on the Rights of the Child are relevant to the public interest question. The Family Law Act 2003 spells out this commitment, by incorporating the mandatory obligation of courts exercising jurisdiction under that Act to have regard to, amongst other matters:
(a) ...
(b) ...
(c) the need to protect the rights of children and to promote their welfare;
(d) ...
(e) the Convention of the Rights of the Child (1989) and the Convention on the Elimination of all Forms of Discrimination Against Women (1979): s. 26
9.36 If it is in the public interest to affirm these rights under the Family Law Act, then it appears to me that it would, could or should be accepted as in the public interest to affirm them as relevant under employment or industrial law also.
9.37 Part 9 of the Employment Relations Promulgation covers ‘Equal Employment Opportunity’. Again it could be said that a stay would not interfere with these rights, for they can be accessed under the equality and non-discrimination provisions of the Constitution. In response it can be said that the Employment Relations Promulgation provides greater detail in respect of these rights. Some would say that equal employment opportunities provisions cover a discrete part of the population. On the other hand, the incorporation of equal employment opportunities provisions into employment law can be seen as having a public interest that goes beyond those claiming discrimination and claiming a right to equal opportunity in the paidworkplace. The philosophy is that the provision of these opportunities aims to (and does, runs the argument) enhance the workplace and the community as a whole in ensuring that talents, abilities, capabilities, experience and formal and informal qualifications are not underutilised or ignored, so failing to benefit the economy. On this argument, equal opportunity provisions add value to the GNP.
9.38 There is also the public interest aspect of human rights, already affirmed in the Constitution, which some would say are further affirmed in such provisions.
9.39 The object of Part 9 is ‘to provide equal opportunities in employment by –
(a) prohibiting discrimination on particular grounds or actual or supposed personal characteristics or circumstances;
(b) ensuring equal rates of remuneration for work of equal value for all workers; and
(c) specifying lawful discrimination: s. 74
9.40 The scope of discrimination in Part 9 indicates that the provisions are intended to affirm the rights of more than a ‘small’ sector. Direct and indirect discrimination is covered in relation to ‘actual or supposed personal characteristics or circumstances, including: ethnic origin, colour, place of origin, gender, sexual orientation, birth, primary language, economic status, age, disability, HIV/AIDS status, social class, marital status (including living in a relationship in the nature of a marriage), employment status, family status, opinion, religion or belief: s. 75
9.41 Sexual harassment is included in this Part under section 76, whereby an employer is made liable together with a worker engaging in sexual harassment, if the employer ‘fails to take the reasonable steps necessary to prevent sexual harassment of the employer’s worker’. Employers are required mandatorily to ‘develop and maintain a policy to prevent sexual harassment in his or her workplace, consistent with any national policy guidelines’. The Minister may ‘direct the Board to develop a national policy guideline for preventing sexual harassment in workplaces’. Further, where a complaint of sexual harassment is made by a worker under this section, the worker’s previous sexual experience or reputation ‘must not be taken into account by the employer or a court or tribunal’.
9.42 As with the equal opportunity provisions, it may here be said that there is a public interest in ensuring that sexual harassment does not occur in workplaces, that steps are taken to prevent it, and that proper procedures and processes exist to deal with sexual harassment grievances, complaints and issues arising in the workplace. Again, the argument may be that this covers a discrete section of the paidworkforce. On the other hand, the public interest may be said to go beyond those who are sexually harassed, to the workplace as a whole and to the economy. The recognised consequences of sexual harassment appear to be that the whole workplace can be affected: often sexual harassment goes beyond one person’s being subjected to the conduct, to more; and the conduct can result in poor workplace practices, occupational health and safety considerations going not only to the person sexually harassed by dangers created by lowered attention span of the person doing the harassment and of the person harassed, disruption of the workplace through discontent and others becoming involved or ‘taking sides’. Arguably there is an impact upon the economy because people are not working to their full potential but are being distracted by the sexually harassing conduct – those engaging in it, those being sexually harassed, and those who may be ‘on the fringes’ of the conduct.
9.43 Section 77 deals with discrimination in employment matters, saying that if an applicant for employment or a worker is qualified for work of any description, an employer or person acting or purporting to act on an employer’s behalf must not:
(a) refuse or omit to employ the applicant on work of that description which is available;
(b) offer or afford the applicant or the worker less favourable term of employment, conditions of work, or other fringe benefits, and opportunities for training, promotion, and transfer that are made available to applicants or workers of the same or substantially similar capabilities employed in the same or substantially similar circumstances on work of that description;
(c) terminate the employment of the worker, or subject the worker to any detriment, in circumstances in which the employment of other workers employed on work of that description would not be terminated, or in which other workers employed on work of that description would not be subjected to such detriment; or
(d) retire the worker, or to require or cause the worker to retire or resign, subject to any written employment contract imposing a retirement age,
by reason of any of the prohibited grounds of discrimination set out in section 75 or by reason of the worker’s involvement in the activities of a union.
9.44 Insofar as protection for members of unions or unionists is concerned, section 77 is relevant. It further says that a worker ‘is deemed to be involved in the activities of a union [hence having the protection of section 77(1)] within 12 months before the action complained of, the employer must prove that any action falling within subsection (1)(a) or (1)(b) was not occasioned by reason of the worker’s involvement in those activities: s. 77(2) A representative of a union is said to include ‘ a person authorised or recognised, either expressly or impliedly, to represent the union or some of the members of a union, whether as a worker or otherwise’: s. 77(4)
9.45 Again, it could be said that unionists protection from discrimination extends to a particular part of the public. On the other hand, it can be said that protection from discrimination for unionists for union activity is of importance to the public as a whole, because of the role unions play in the community and particularly in relation to paidwork, worker conditions, worker entitlements and so on which have protection under section 33 of the Constitution.
9.46 As noted, equal pay is covered in Part 9, by sections 78 and 79. No instrument (contracts, etc made after Part 9 commences are allowed to contain ‘classifications of work or rates of remuneration that differentiate on the basis of the gender of workers in the work which male workers or female workers may perform’. Any instrument made after Part 9 commences that contains such classifications of work or rates ‘is void and of no effect’. I note here that staying this Part would have an impact insofar as ILO Conventions are concerned, for equal remuneration is a principle adhered to under such Conventions and arguably it is in the public interest for equal remuneration to be effected and supported.
9.47 As to equal remuneration generally, section 78 says employers ‘must not refuse or omit to offer or afford a person the same rates of remuneration as are made available for persons of the same or substantially similar qualifications employed in the same or substantially similar circumstances on work of that description for any reason including the gender of that person’. Section 79(1) sets out the criteria to be applied (subject to subsection 2): ‘in determining whether an element of differentiation exists, based on the gender of workers, in the rates of remuneration for any work or class of work payable under any instrument, and for the purpose of making the determinations specified in section 80(1) [which deals with determination of equal pay], the following criteria must apply:
(a) the extent to which the work or class of work calls for the same, or substantially similar, degrees of skill, effort, and responsibility;
(b) the extent to which the conditions under which the work is to be performed are the same or substantially similar; or
(c) the rate of remuneration that would be paid to workers with the same, or substantially similar, skills, responsibility, and service performing the work under the same, or substantially similar, conditions and with the same, or substantially similar, degrees of effort.
9.48 Section 80(1) says that if an instrument is in force at the commencement of the Promulgation that ‘(a) provides separate provisions for the remuneration of workers based on the gender or of workers; or (b) provides for the remuneration of female workers only, then the parties must, within 12 months of the coming into force of the Promulgation, review the instrument to implement equal pay, by determining:
(i) the classification of the work performed by the female workers in relation to work performed by male workers, those classifications being determined in accordance with the criteria set out in section 79; and
(ii) the rates of remuneration that would represent equal pay for every such classification, those rates being determined in accordance with the criteria set out in section 79.
9.49 Timelines are again relevant here, for section 81, dealing with recovery of remuneration based on equal pay, says that no proceedings may be commenced in the Tribunal for recovery of remuneration ‘that became payable more than 3 years before the date of the commencement of the proceedings’. Hence, if a stay were granted, this would affect the rights of those seeking to claim unequal pay compensation if ultimately the Employment Relations Promulgation were found to be Constitutional. If it is found un-Constitutional, then of course the stay will not have affected the right of recovery.
9.50 I consider that a public interest would generally be recognised as lying in the prevention of child labour as set out in the Employment Relations Promulgation under Part 10. The objects of this Part are:
(a) to prohibit work which, by its nature or the circumstances in which it is carried out, is likely to harm the health, safety or morals of children;
(b) to establish the circumstances and ages at which children may work; and
(c) to confer certain rights on children and provide protection in view of their vulnerability to exploitation: s. 90
9.51 The ‘worst forms of child labour’ are prohibited:
(a) all forms of labour slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and any form of forced or compulsory labour, including forced or compulsory recruitment of children in armed conflict;
(b) the use, procuring or offering of a child for illicit activities in particular for the production and trafficking of drugs as defined in relevant international treaties; or
(c) the use, procuring or offering of a child for prostitution, for the production of pornography or for pornographic performances,
and a person who engages a child in such prohibited form of child labour commits an offence: s. 91
9.52 I observe here that a stay of these provisions would not of course affect criminal laws relating to such matters to continue to guard and govern the rights of children against exploitation, abuse – physical and sexual, and the public interest in maintaining these rights. Hence it may be argued that a stay is not supported by the public interest argument, for there are alternative remedies and protection of rights. On the other hand, it may be said that the public interest does require the bringing into effect of these provisions on the date mandated, so that there are additional provisions enhancing the rights and protection of children.
9.53 Further rights of children as workers in family and religious settings are set out in section 93, whilst section 92 sets the minimum age for employment of children at 15 years (except in relation to family and religious work where children of 13 to 15 years are allowed to be employed): s. 93 In any event employers are bound to keep a register of child workers and no child is allowed to be employed for more than 8 hours a day, with at least 30 minutes ‘paid rest for every continuous 4 hours worked’.
9.54 In my opinion, there is a public interest in promulgation of these provisions affecting children’s rights.
9.55 The Plaintiffs have expressed concerns in relation to particular aspects of the Employment Relations Promulgation (that is, going beyond the Constitutional question) in relation to the legislation generally and in relation to the stay application.
9.56 I have addressed earlier Parts 14 and 15 dealing with union organisation. Further in regard to the particular concerns, I turn to Part 18 which deals with ‘Strikes and Lockouts’. The objects are set out in section 174:
(a) to recognise that the requirement that a union and employer must deal with each other in good faith does not preclude certain strikes and lockouts being lawful’ \to define lawful and unlawful strikes and lockouts; and
(b) to ensure that where a strike or lockout is threatened in an essential service that there is an opportunity for a mediated solution to the problem.
9.57 Under this Part, no strikes are to take place without the Registrar having been provided with a notice of secret ballot: s. 175(1) Such notice must be served on the Registrar 21 days prior to t he nominated date of the holding of the ballot; it must state date, time and place of holding of the ballot; and must state the issues for the strike: s. 175(2) The procedures to be followed for secret ballot are set out in section 175(3), requiring that ballot papers state all issues on which a strike mandate is sought; each issue must be supported by more than 50% of all members entitled to vote; the secret ballot must be supervised by the Registrar; and unions must, as soon as possible and in writing, notify the Registrar of the ballot results. A secret ballot for a strike managed under section 175 is valid for six months from the date of declaration of the ballot: s. 175(4)
9.58 Under section 176, lockouts are not allowed without an employer having given 28 days written notice to the Permanent Secretary and respective trade unions. A notice so given is valid for six months from its date.
9.59 Section 178 says that participation in a strike or lockout is lawful on grounds of health and safety, but only if the workers who strike have, or the employer who locks out has, exhausted the health and safety dispute resolution procedures in the Health and Safety at Work Act 1996.
9.60 Section 177 makes participation in a strike or lockout unlawful if the strike or lockout:
(a) occurs while a collective agreement binding the workers participating in the strike or affected by the lockout is in force, unless –
- (i) it was an aspect of a collective agreement that right to strike or lockout was provided; or
- (ii) it relates to a matter which is not covered by the existing collective agreement or variation to the collec8tveagrement;
(b) occurs during bargaining for a collective agreement or variation of a collective agreement that will bind the workers participating in the strike or affected by the lock out unless –
- (i) at least 21 days have passed since the bargaining was initiated;
- (ii) on the date bargaining was initiated, the workers were bound by the same collective agreement and that collective agreement has expired; or
- (iii) on that date the workers were bound by different collective agreements and at least one of those collective agreements has expired;
(c) relates to a dispute reported under section 169 and is being proceeds in accordance with this Promulgation;
(d) takes place in contravention of section 175 or 176;
(e) takes place in contravention of section 186, 187 or 191(2);[5]
(f) takes place in contravention of a settlement by a Mediator or a decision of a Tribunal or the Court;
(g) where a strike or lockout continues after it has been declared unlawful under section 180;[6] or
(h) where a strike or lockout continues after a health and safety issue is resolved in accordance with the Health and Safety at Work Act 1996.
9.61 The ‘Protection of Essential Services, Life and Property’ provisions of the Employment Relations Promulgation are contained in Part 19, raising particular concerns on the part of the Plaintiffs also. The object of Part 19 is ‘to prescribe the circumstances in which workers or employers engaged in essential services listed in Schedule 7 may undertake a strike or lockout.
9.62 Schedule 7 lists essential services for the purposes of Part 19 as: Air/Sea Rescue Services; Air Traffic Control Services; Civil Aviation Telecommunication Services; Electricity Services; Emergency Services in times of national disaster; Fire Services; Health Services; Hospital Services; Light House Services; Meteorological Services; Mine Pumping, Ventilation and Winding; Sanitary Services; Supply and distribution of fuel, petrol, oil, power and light essential to the maintenance of the Services in Schedule 7; Telecommunications; Transport Services necessary for the operation of any Services in Schedule 7; and Water Services.
9.63 The provisions in Part 19 generally pick up the provisions or pattern of the provisions for balloting for strikes and notice as provided in Part 18, as well as containing provisions peculiar to essential services. For example, if a strike is contemplated by a trade union covering workers to or in control of an essential service where there is a dispute between the workers and their employer, the trade union is bound to conduct a secret ballot in accordance with section 175, and give at least 28 days written notice of the strike to the employer, serving a copy of the notice to the Permanent Secretary: s. 186(1)
9.64 The strike notice must be signed by the trade union secretary, state date and time on which the strike is contemplated along with place or places where it is contemplated the strike will occur; state category of workers proposing to go on strike; state estimated duration of the strike; and be served by hand, registered mail or courier. If the strike notice fails to comply with this section or the strike does not take place as notified, the notice is deemed not to have been made and any strike undertaken under the notice is unlawful: s. 186.
9.65 Various offences are set out in section 189 in relation to breaking an employment contract where the person performs essential services and in relation to ‘causing or procuring or counseling or influencing’ a worker to break the worker’s employment contract or an employer causing a lock out.
9.66 Under section 191(1) in the case of a lawful strike or lockout in an essential service, the Minster may refer the matter underling the strike – the employment dispute or employment grievance – to the Court, where neither party is willing to settlement the employment dispute; or neither party reports the dispute under section 169; or the Minister is satisfied that the continuance of the strike or lockout is not in the public interest or will jeopardise or is likely to jeopardise the life or livelihood of the nation, economy or public safety. If the dispute or grievance is referred to the Court under section 191(1), then the Minister is required to order discontinuance of the strike or lockout: s. 191(2)
9.67 In the Submissions (put to Parliament by the Plaintiffs), the section on the Right to Strike says:
The Bill also places severe restrictions on the right to strike. Under current laws workers have the right to strike for all employment disputes. The Bill limits this to only annual contract or log of claims negotiation. Strikes for other reasons such as restructuring, redundancy, dismissals, demotion, promotion, etc during the currency of an agreement will be unlawful.
Further, currently members employed by one employer can strike in support of issues concerning members employed by another employer provided they belong to the same union. The Bill removes this right and restricts strikes only to workers directly affected by the dispute.
FICTU had sought several other amendments to the Bill which the government has ignored. Instead, it has brought in matters which were never discussed at all. For example, the Bill now defines banking as an essential service. This is a deliberate attempt to limit the right to strike of banking employees.
How can the Banking industry be classified as an essential service when the Banks only open to public for 5 ½ hours a day (except Fridays when they open for 7 hours) and have closed down several branches and agencies in recent years, much to the inconvenience of the public in many areas?
The Bill is seriously flawed in these aspects. Most of our submissions repeated at every centre throughout Fiji during the Labour Ministry’s Road Show on the Bill last year have been ignored.
Accordingly, we suggest the following amendments to the Bill [here follows a specific list, some of which have been adverted to earlier]: Submission, 1st FICTU Affidavit, Annexure 3
9.68 Here I note that at least in regard to the banking industry, the concerns of the Plaintiffs were taken into account or have at least been addressed as banking does not appear in Schedule 7 of the Employment Relations Promulgation. There also appear to have been few explicit issues raised in the Submission vis-à-vis Part 18 in the list following the general introduction to the Bill however it may be that the Plaintiffs considered that the general introduction and the passages above relating to strikes and essential services set their position and their concerns in such a way as to implicate various sections contained in Parts 18 and 19.
9.69 Insofar as these matters go to public interest, it appears to me that there is a strong public interest in ensuring that the right to strike is maintained in accordance with ILO Conventions. At the same time, the question is whether this public interest means that a stay should be granted in the public interest. I do note that the alternative of the Constitutional provisions relating to a right of freedom of expression: s. 30, freedom of assembly: s. 31, freedom of association: s. 32 and labour relations: s. 33 each can have application to workers’ right to strike and the rights of unions. If a stay were not granted and issues were to arise in relation to these provisions, then there is this alternative means of addressing these matters through action taken by the Plaintiffs or other affected unions under the Constitution.
10. Employment Relations Promulgation – History
The Plaintiffs’ position is that the history of the Employment Relations Promulgation in having been a Bill coming through the Parliament of Fiji and taking some of the steps necessary to comply with section 47 of the Constitution cannot make it Constitutional. The failure of the Employment Relations Bill to go through all the necessary steps is a fatal flaw, they say. This is the basis for their Constitutional challenge.
10.1 On the question of a stay, however, as I have said it appears to me that the history of the Employment Relations Bill and its precursor, the Draft Industrial Relations Bill, in their Parliamentary and Government origins is relevant.
10.2 First, it seems to me relevant as to the question of public interest in that there has as noted been a considerable airing of the matters contained in those Bills – both within the Parliament and in terms of the consultations. Secondly, it seems to me relevant as a practical matter to the balance of inconvenience or balance of convenience and irreparable harm tests under American Cyanamid and Mataqali Namatua v. NLFC and 3Others.
10.3 The Employment Relations Bill and its precursor were introduced into the Parliament as it appears under the Qarase Government. Mr Qarase was Prime Minister in 2002, when the Chronology shows that there was a decision to review industrial relations law. Mr Qarase was throughout the period of the consultations and deliberations in relation to the Draft Industrial Relations Bill and its renaming as the Employment Relations Bill. Mr Qarase was Prime Minister when the Parliament was prorogued and the Bill lapsed for the holding of the General Election. Mr Qarase and his Government were re-elected and when the new Parliament convened in 2006, Mr Qarase was Prime Minister. He was Prime Minister throughout the negotiations, consultations, reports, modifications, discussions and debates on the Employment Relations Bill.
10.4 From a practical point of view, then, it seems to me that what follows is this.
10.5 I emphasise that in speculating in this way, this Court should not be taken as addressing the matter in the substantive proceeding herein. Whatever the outcome of the Qarase case and Republic and A-G v. Qarase and Vosanibola, it remains for this Court to determine upon the issues in the Plaintiffs’ substantive proceeding.
10.6 However, from a practical point of view, in considering the questions of irreparable harm and balance of convenience, it seems to me that I should take into account the practicalities of the legislation under question in relation to its historical origins. As it came out of the Qarase Government, it seems to me on balance that it may be likely that it or a version similar to it would or could be promulgated were the outcome in Qarase case and Republic and A-G v. Qarase and Vosanibola, to uphold Mr Qarase’s position. On the other hand, as I have said, if the outcome in Qarase case and Republic and A-G v. Qarase and Vosanibola goes the other way, on balance not granting a stay of the Employment Relations Promulgation seems less likely from a pragmatic point of view to cause irreparable harm.
10.7 I note that there is a serious question as to the Constitution and that as the Plaintiffs have said, the importance of ensuring Constitutional integrity is fundamental. Yet I do not consider that refusing a stay of the implementation of the Employment Relations Promulgation can cause irreparable damage in that respect. The Constitution is a robust document. In this regard I take note of the High Court’s decision in Prasad v. The Republic of Fiji (Civil Action No. 217 of 2000).
11. Stay of Proceedings
The question of a stay of proceedings sought by the Defendants remains in issue. The Plaintiffs say that nothing is different now from the position previously pertaining when the stay sought by the Defendants was refused, with liberty to apply provided for.
11.1 The Plaintiffs’ position is compelling, for it is true that litigants have a right to have their matters heard promptly and to have a determination on the matters they seek to litigate, rather than having to wait for other litigants’ matters to be finalised. There is authority to this effect.
11.2 On the other hand, there is a public interest in ensuring that, as the Defendants have said, there is no duplication of proceedings, or unnecessary duplication of proceedings, with consequent outlay and costs.
11.3 It seems to me that there is a difference now from the position when the stay of proceedings was originally refused. The difference is that the Qarase case and Republic and A-G v. Qarase and Vosanibola have been heard and have concluded, and judgment is awaited.
11.4 In the Qarase case and Republic and A-G v. Qarase and Vosanibola, the High Court hearing the matter was comprised of three judges of this Court. In those circumstances, I consider that it would not avail the parties here if I were to go ahead to hear the substantive proceeding in the absence of the determination in the Qarase case and Republic and A-G v. Qarase and Vosanibola.
11.5 At the same time, if there are steps that can be taken in the substantive proceedings herein which do not overlap or replicate steps that have had to be taken in the Qarase case and Republic and A-G v. Qarase and Vosanibola – I am thinking here of the production of volumes of Affidavits and other material referred to by the Defendants – then it seems to me appropriate for those steps to be taken.
11.6 Hence, I shall make Orders that comprehend this possibility by granting liberty to apply. I emphasise, however, that the liberty to apply does not provide for a re-agitation of the question whether a stay should be granted of the substantive proceeding insofar as awaiting the outcome of the Qarase case and Republic and A-G v. Qarase and Vosanibola. This means that if there are no steps that can be taken in preparation for the hearing of the substantive proceeding herein, then there will be no matter to bring back before the Court before the decision is handed down in the Qarase case and Republic and A-G v. Qarase and Vosanibola,
12. Conclusion
Having considered all the matters in the Affidavits filed and Written Submissions of the Plaintiffs (including the Plaintiffs’ Reply) and Defendants, oral submissions of the parties, and all the issues canvassed above, I consider that the stage has now been reached where a temporary stay, pending finalisation of the Qarase case and Republic and A-G v. Qarase and Vosanibola, should be granted. However, as noted there will be liberty to apply so that if steps can be taken in the substantive proceeding herein which do not duplicate what has been advanced in the Qarase case and Republic and A-G v. Qarase and Vosanibola, then a timetable can be set accordingly. If there are no such steps that can be taken to advance the substantive proceeding, then there will be no cause for the matter to be relisted until the determination has been handed down in the Qarase case and Republic and A-G v. Qarase and Vosanibola.
12.1 Further in consideration of all the matters adverted to, I have determined that this is not a case where a temporary stay or interim injunction should issue to stay the implementation of the Employment Relations Promulgation until the determination of the substantive proceeding or until the decision is handed down in Qarase case and Republic and A-G v. Qarase and Vosanibola. That determination is grounded in all the matters canvassed and the reasons set out above.
Orders
Jocelynne A. Scutt
Judge
Suva
31 March 2008
[1] Keith Mason, ‘The Inherent Jurisdiction of the Court’ (1983) 57 Queensland Law Journals 449; see also Wendy Lacy, ‘Inherent Jurisdiction, Judicial Power and Implied Guarantees Under Chapter III of the Constitution’ (2003) Federal Law Review, http://www.austlii.edu.au/au/journals/FedLRev/2003/2.html, pp. 1-32 (accessed 31 January 2008).
[2] Halsbury’s Laws of England, 4th edn, Butterworths, London, England, UK; also Isaac H. Jacob, ‘The Inherent Jurisdiction of the Court’ (1970) Current Legal Problems 23, 51.
[3] Note that Schedule 5 did not come into effect on 1 October 2007 and is scheduled to come into effect on 2 April 2008.
[4] As it is in effect and hence has replaced provisions in earlier legislation governing initiation of legal proceedings by trade unions,
presumably this section is that under which the Plaintiffs have instituted the current proceeding? This was not raised in submissions
however it does appear that it is section 144 which extends to the Plaintiffs the power to institute legal action.
[5] These sections are contained in Part 19 – Protection of Essential Services, Life and Property, an aspect of the Employment
Relations Promulgation which was particularly raised by the Plaintiffs as a matter of concern.
[6] Section 180 provides that if a strike or lockout is unlawful by virtue of the Employment Relations Promulgation, the Minister may,
by order, declare the strike or lockout unlawful. The declaration is effective on the date the order is served on the union or employer.
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