State v Arbitration Tribunal, Ex-parte Pacific Fishing Company Ltd [2011] FJHC 715; HBJ10.2008 (8 November 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 10 of 2008

IN THE MATTER of an application by PACIFIC FISHING COMPANY LIMITED for a Judicial Review under Order 53 of the High Court Rules 1998

AND

IN THE MATTER of the Award No. 81 of 2007 of the ARBITRATION TRIBUNAL dated 6th day of December, 2007.

STATE v ARBITRATION TRIBUNAL
FIRST RESPONDENT

PAFCO EMPLOYEES UNION
SECOND RESPONDENT

Ex-parte: PACIFIC FISHING COMPANY LIMITED
APPLICANT

APPEARANCES: Mr H Nagin for the Plaintiff
Ms Serulagilagi for the 1st Respondent
Mr Daveta for the 2nd Respondent

DATE OF HEARING: 13TH FEBRUARY, 2009
DATE OF JUDGMENT: 8TH NOVEMBER, 2011

JUDGMENT

INTRODUCTION

This case was taken up before Mr Justice Jitoko and was pending for Notice of Judgment which was referred to me to conclude the matter by delivering the Judgment. When this matter was taken up before me on 4th October, 2011, Counsels submitted no further submissions and judgement to be delivered considering the proceedings before Mr Justice Jitoko.

The applicant, Company (PAFCO) made an application for Judicial Review on the Arbitration Award dated 6th December, 2007 seeking the following reliefs:

(a) An order of Certiorari to remove the Award No. 81 of the Arbitration Tribunal delivered on 6th day of December 2007 and same be quashed;

(b) A declaration that Arbitration Tribunal has acted arbitrarily and/or unreasonably and/or abused his discretion and/or made errors on law on the face of record and/or exceeded his jurisdiction in respect of his Award No. 81 of 2007.

Award of the Arbitration Tribunal No. 81 of 2007 was made on 6th December, 2007.

The dispute was reported by the Second Respondent in this case namely PAFCO Employees Union and the report was accepted by the Permanent Secretary to the Ministry of Labour and Industrial Relations.

Having referred to Disputes Committee on 27th June 2007, disputes were not resolved and the Permanent Secretary referred the matter to the Arbitration Tribunal for settlement on 13th August 2007 under the provisions of the Trade Dispute Act..

Terms of Reference:

"......over the Company's failure to follow Clause 13(i) (ii) and (iii) of the Collective Agreement by not paying Union Officials and Several witnesses their dues including transportation meals and accommodation namely Abele Vasi, Kitione Nauregaragea, Manasa Nete, Ropate Naiseruveli, Marika Toka, Vani Kivi, Manasa Mise, Kuliniasi, Lote Raturaqe, Luke Taleca, Tomasi Tokalauvere for all number of days they attended the Arbitration and Disputes Committee Hearing. The Union claims that Company's action as bias, unfair, unlawful and unconstitutional and seeks that all dues be paid within a week..

The Arbitration proceeded to decide the issue of whether the employees mentioned in the terms of reference are entitle to the payments detailed therein.

Under Clause 13(i) (ii) and (iii) of the Memorandum of Agreement (Collective Agreement) signed by and between the Applicant in this case (PAFCO) and the Second Respondent (PAFCO Employees Union) i.e.:

"13. Meeting by Company and union officials:

(i) All meetings between the company and the Union Executives shall be conducted between the hours from 8am to 5pm from Mondays to Fridays;

(ii) In case of an emergency situation either party i.e. Company or Union which wishes to call a meeting will bear the cost of union executives wages and transport;

(iii) Where the company and the Union agrees to meet on matters affecting the employment of workers the Union officials attending such meetings shall not suffer any loss of Pay or benefit when attending to such meetings including Arbitration Tribunals Trade Disputes Committee etc.

Award was made by the Arbitration Tribunal on 6th of December, 2007.

"AWARD

Clause 13(iii) applied only to those Union Officials who were employed at the relevant time of the hearing before the Arbitration Tribunal or the Dispute Committee.

All those workers who were employed by the Employer at the time they appeared at the hearing before the Disputes Committee or the Arbitration Tribunal as a witness should be paid their normal wages and should not suffer any loss or benefits as a result of such attendance."

In my view the question to be decided in this case is whether there is material grounds to grant a Certiorari against the Arbitration Award.

The following aspects should be considered to arrive at a conclusion whether the applicant has grounds to apply for a Certiorari to quash the decision of the Arbitrator. Whether Arbitrator acted in a judicial capacity or administrative capacity is immaterial as per decision made in Padfield vs Minister of Agriculture, Fisheries and Food [1968] UKHL 1; [1968] A.C. 997. and thus this court has the authority to consider the application for judicial review.

To arrive at the conclusion and making the award, Arbitration Tribunal I considered the submissions made by PAFCO Employees Union and PAFCO (Company) – Employer). The Tribunal proceeded in the inquiry inter-parte.

The Arbitration Tribunal correctly stated under Section 5A(1) of the Trade Disputes Act this matter was taken up by the Permanent Secretary as aforesaid, and referring such a dispute to the Arbitration is mandatory since it involves interpretation, application or operation of Collective Agreement which cannot be resolved by reconciliation. I agree with Conclusion arrived by the Disputes Committee that this matter referring to the Arbitration Tribunal.

In the pretext of this case the issue to be decided is whether the Arbitration Tribunal breached the principles governing Certiorari for the Applicant to obtain a Certiorari to quash the decision.

Applicant's submissions

The learned counsel for the Applicant has submitted that First Respondent failed to consider the following when the award was made:

(a) The clause no. 13(iii) is misinterpreted;

(b) There was discrimination on the part of the Employer to have paid workers who attended to the tribunal to give evidence on behalf of the employer and refuse to pay workers who attended the Tribunal to give evidence on behalf of the Union. This issue was not before the Tribunal and Tribunal has exceeded its jurisdiction;

(c) Tribunal wrongly held PAFCO conduct was contrary to the Bills of Rights provisions of the constitution and violated the standards set in various convention of the International Labour Organization;

(d) Lack of proper reasons and reference was made to Akbar Buses Limited –v- Transport Control Board Fiji Transport Company Civil Appeal No. 9 of 1984. Pacific Transport Co. Ltd –v- Mohammed Jalil Khan and Transport Control Board Civil Appeal No. ABU 0021/1996S. State –v- Transport Control Board ex-parte Nair Transport (HB 0020/1996S).

and some other cases where decision making authority has to give reasons when they arrive at a decision.

It is also stated in the submission of applicant that decision by the Tribunal is Arbitrary, abuse of discretion, and Tribunal has exceeded its Jurisdiction.

1st Respondent's submissions

No written submissions filed by the First Respondent. However, affidavit was filed by the Secretary of the Tribunal annexing the Certified Copy of the proceedings of the Arbitration contents of which was taken in to consideration by this Court to arrive at a conclusion.

2nd Respondent's submissions
The Second Respondents has filed a detailed affidavit stating Award by the Arbitration Tribunal is justified and the applicant has no basis to seek judicial review. No written submissions filed and I consider the contents of the affidavit filed in this case to arrive at a conclusion.

Consideration of the Grounds for Review

To arrive at a conclusion, I have considered the affidavits filed by the parties and written submissions and law, and principle governing Certiorari, and whether the Applicant can seek judicial review in the circumstances of the case.

Principles Governing Judicial Review

Judicial review is concerned "not with the decision but with decision making process. Unless that restriction on the power of the Court is observed, the Court will, in my view under guise of preventing the abuse of power be itself guilty of usurping power" (Lord Brightman in Chief Constable of North Wales Police U. Evans [1982] IWLR 1155 at 1173]. It was also commented:

"This remedy vastly increased in extent and rendered, over a long period in years, of infinitely more convenient access than that provided by the old prerogative writs and actions and declarations, is intended to protect the individuals, judicial, quires judicial and as would originally have been thought when I first practised at the Bar, administrative. It is not intended to take away from those authorities the powers and discretions properly vested in them by law and to substitute the courts as the bodies making decisions. It is intended to see that the relevant authorities use their powers in a proper manner".

I also quote Lord Templeman in Reg. –v- Inland Revenue Commissioners Ex-parte Preston 1985 (A.C. 835 at 862):

"Judicial Review is available where a decision making authority exceeds its powers, comments an error of law, comments a breach of natural Justice reaches a decision which no reasonable tribunal would have reached or abuses its powers."

I am of the view the subject case before me should be considered on the said principles.

It is also observed by the Fiji Court of Appeal case The Permanent Secretary for Public Service Commission and Permanent Secretary for Education, Women, Culture ex-parte Lepani Matea Civil Appeal No. ABU 0018 of 1998S at 12 that the Court stated:

"Must not do is determine the merits of the matter, or substitute its opinion for that of the body concerned upon the merits."

It is my contention that to come to a conclusion whether, the applicant was given "fair treatment" by the decision making body in question, in this case the Arbitration Tribunal, I confine myself to the legality when reviewing the decision.

1. It is my duty now to deal whether there are specific grounds for judicial review:
   

(i) Whether the Tribunal made error of law.

It is my view that the Tribunal must operate within the Law and should comply with the rules of natural justice. I find in this case the procedure adopted by the Arbitration Tribunal to arrive at the decision is fair and within its jurisdiction. There is no evidence or material to establish that procedure was irregular or/and improper. In the circumstances, I hold that process by which Tribunal reached the decision is correct and there is no ground to quash the decision of the Arbitration Tribunal;

(ii) Whether there is denial of Natural Justice

Procedural fairness and the rules of Natural Justice embrace similar if not identical concepts of fair and reasonable dealings.

I may quote the passage from Judgement of Fox J in Hurt Rossall and Others (1982) FCA 188: 1982 (F.I.R) 102 at 108 which is pertinent:

"...........The requirement of Natural Justice must depend on the circumstances of the case, the nature of the inquiry the rules under which the Tribunal is acting; the subject matter that is being dealt with; and so forth."

I find all relevant factors had been considered by the Learned Arbitrator when he arrived at the decision.

Kitto J stated in case of Mobil Oil Australia (PTY) –v- Federal Commissioner of Taxation [1963] HCA 41: (1963) 113 CLR 475 at page 504:

"what the law requires in the discharge of a quasi-judicial function is judicial fairness. This is not a label for any fixed body of rules what is fair in a given situation depends upon the circumstances"

The Learned Arbitrator has followed the circumstances of the case and given the interpretation of the Clause 13 (iii) with judicial fairness.

The submission made by the Applicant is to give direct interpretation of the clause. In fairness to the applicant the Tribunal has analysed the Clause 13(iii) infact with fairness and held that the officials of the union who are not employed by the applicant are not entitled for the payments for attending the Arbitration and/inquiry. This shows Arbitrator has acted in just and fair manner.

On the facts and circumstances of this case as enunciated by Lord Morris in the House of Lords case of Wiseman v Borneman (1971) AC 297s 308-309 stated-

"My Lords that the conception of Natural Justice, should at all stages guide those was discharge that Judicial functions is not merely an acceptable but and essential part of the philosophy of the law. We often speak of natural justice. But there is nothing rigid or mechanical about them. What they comprehend has been analyzed and described in many authorities. But any analysis must bring into relief rather spirit and their inspiration than "PRECISION OF DEFINITION OR PRECISION AS TO APPLICATION" We do not search for prescriptions which will lay down exactly what must, in various divergent situations, be done. The principles and procedures are to be applied with which in any particular situation or set of circumstances; are right and just and fair. Natural justice as has been said only "FAIR PLAY IN ACTION" No, do wait for directions from parliament. The Common Law has abundant riches. There may we find what Byles J called justice of the Common Law" (Cooper U Wandsworth Board of Works [1863] EngR 424; (1863) 14 C.B. N.S. 180, 194).

I hold that there is no denial of natural justice and the interpretation by the Learned Arbitrator is fair and justifiable. I hold there is no breach of principles of Natural Justice.

(iii) Whether the Tribunals Decision is Unreasonable?

The Applicant has submitted that Arbitration Tribunal has acted arbitrarily and/or unreasonably.

Applicant has quoted paragraph 4 of the Administrative Law Halsburys Laws of England 4th Edition Volume 1(i).

In this regard my conclusion is that the Learned Arbitrator has acted honestly and in good faith. It is evident by the proceedings and I cannot accept the position taken up by the Applicant.

The main submission for unreasonableness claimed by the Applicant is the decision opens flood gate for the Union to literally call all employees of the Applicant as witness without loss of pay and at substantial damage to the Applicant.

This submission is very hypothetical and even such incident occurs the applicant have options to seek reliefs under law at that stage.

Under Abuse of discretion, Applicant once again elaborate on strict interpretation of the Clause 13(iii) which is discrimination of the rights of employees.

The submission made by the applicant, does not justify to seek a Certiorari from this Court.

Arbitration Tribunal has given reasons for the finding and making the award. The concept of "fair labour practices" and discrimination of employees' rights are widely discussed to interpret the applicability of Clause 13(iii) and delivering the Award.

It is stated a blatant form of violation by the employer to have paid workers who attend the Tribunal to give evidence on behalf of the Employer and yet failed or refused to pay workers who attended at the Tribunal hearing to give evidence either a griever or as a witness on behalf of the union. Such conduct is contrary to the Bill of rights provisions of the constitution and violates labour standards set out in various conventions of International Labour Organization.

I agree with the Tribunal's findings.

It should be noted that in a judicial review, Court is not as much concerned with the merits of the decision as with the way in which it was reached; Evan's supra 1174 and as stated by Templeman in Reg. vs Inland Revenue Commissioners Ex-parte Prestron [1984] UKHL 5; (1985) A.C. 835 at 862.

"Judicial review is available where a decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers."

It is also my contention that one of the purposes of judicial review is to ensure that an applicant given a 'fair treatment' by the decision making body in question.

Judicial review is supervisory. The Court confines itself to the question of legality when reviewing a decision. Perusing the proceedings of the Arbitration, there is no 'unfair treatment' caused to the Applicant in this case.

Conclusion

The Tribunal has given its reasons analysing all the facts in detail. I do not find any grounds which qualifies the Applicant to seek judicial review and Arbitration Award stands.

Accordingly, I dismiss the application for judicial review. I award costs to the Respondents in the sum of $2,000.00 each, such costs should be paid within 30 days of the Judgement.

CHANDRASIRI KOTIGALAGE
Judge

November, 2011