THE HIGH COURT OF FIJI AT SUVA
CIVIL JURISDICTION

Judicial Review No. HBJ 40 of 2006S

IN THE MATTER of an Application by MOBIL OIL AUSTRALIA PTY LIMITED trading as "MOBIL OIL FIJI" for a Judicial Review.

AND:

IN THE MATTER of a Decision of the Chief Executive Officer of Ministry of Labour, Industrial Relations and Productivity made on the 17th day of October 2006

BETWEEN:

THE STATE

AND

:THE CHIEF EXECUTIVE OFFICER FOR MINISTRY OF LABOUR, INDUSTRIAL RELATIONS & PRODUCTIVITY
1st Respondent

MINISTER FOR LABOUR, INDUSTRIAL RELATIONS & PRODUCTIVITY
2nd Respondent

MR. KEVIN PARKER
3rd Respondent

EX-PARTE:

MOBIL OIL AUSTRALIA PTY LIMITED trading as "MOBIL OIL FIJI"
Applicant

Counsel: Ms. B. Narayan for the Applicant.
Attorney General's Chamber for the 1st & 2nd Respondent.
Mr. R. P. Singh for the 3rd Respondent.

Date of Judgment: 3rd April, 2012

JUDGMENT

[1].	On 7th of May 2007, the applicant company was granted leave to apply for judicial review against the decision of the Chief Executive Officer, Ministry of Labour, Industrial Relations and Productivity made on 17.10.2006, accepting a trade dispute between the 3rd respondent and the applicant and referring the dispute to the Permanent Arbitrator for settlement under section 5A (5) of the Trade dispute Act.

[2].	The relief sought by the applicant are as follows:

a.	An order for certiorari quashing the decision of the 1st and 2nd respondent made on 17.10.2006;

b.	A declaration that the said decision is invalid, void and of no effect;

c.	A declaration that the 1st and 2nd respondents exceeded their jurisdiction and/ or made error of law in making the said decision;

d.	An order for mandamus requiring reconsideration of the said decision according to law; and,

e.	Costs.

[3].	In support of the applicant's application, an affidavit was filed by Andrew McNaught, the General Manager of the applicant company.

The facts as deposed to by his affidavit can be summarised as follows:

[4].	The applicant is in the business of distributing and selling petroleum products in Fiji and also in the Pacific. On 5th of Nov 2004, the 2nd respondent sent the applicant a letter informing that a trade dispute had been reported against the applicant.

[5].	On 10.11.2004, applicant's solicitors replied the 2nd respondent advising them that there was no collective agreement entered into between the respective parties and no such agreement was ever registered with the second respondent under section 34 of the Trade Practices Act.

[6].	On 22.11.2004, the 2nd respondent wrote to the union on 22.11.2004, rejecting the dispute on the ground that there was no collective agreement in existence between the union and the employer as at 07.11.2004, when the 3rd respondent was terminated. It further stated that the application for voluntary recognition was made after the termination of the 3rd respondent.

[7].	On 31.08.2005, the applicant was informed by the Ministry that the union was compulsorily recognised as the representatives of the applicant's employees.The 2nd respondent, when issuing the Compulsory Recognition Order backdated it to 22.09.2004. However, the 3rdrespondent was terminated two weeks prior tothis recognition, that is, 7.9.2004; and therefore, the applicant argued thatthe 3rd respondent was not a member of the union.

[8].	It is further deposed that the 3rd respondent has now reported a trade dispute between himself personally and the applicant pursuant to which this trade dispute has been referred to the permanent arbitrator by the 1st respondent.

[9].	The 2ndrespondent has accepted a trade dispute report from the 3rdrespondent in his individual capacity, although trade disputes should be between unions and employers only and not employees in the personal capacity.

[10].	The 2nd respondent having accepted the trade dispute referred the dispute to an arbitration tribunal for settlement. The arbitration tribunal on 24.10.2006 listed the trade dispute for mention on 27.10.2006. The applicant's solicitors informed the tribunal that it had no jurisdiction to hear the matter. The Tribunal then adjourned the matter to 24.11.2006 allowing the applicant to file its application for judicial review.

[11].	The applicant alleges that the 2nd respondent's reference of the dispute to the arbitration tribunal was contrary to the Trade Dispute Act.

[12].	Opposing the application for judicial review, an affidavit was filed by a labour officer for the 1st defendant.

[13].	In that affidavit, it is deposed that at the time of the dismissal of the 3rdrespondent, he and some 25 fellow employees of the applicant were members of the trade Union.
[14].	It is further deposed that the trade union had first applied for voluntary recognition from the applicant on 13.06.2003, after the applicant granted it a check off facility deducting union deductions at source and paying it to the union on a regular basis.

[15].	The 1st and 2nd respondents are empowered to accept the report of a trade dispute by an individual employee under the Trade Dispute Act, if their employment is terminated during the process of recognition of the union of the individual is a member.

[16].	The disputed reported by the 3rd respondent to the 1st respondent was accepted by the 1st respondent on 17.10.2006 and referred to the Arbitration tribunal as the 1st respondent was empowered to do so under Trade Dispute Act cap 97.

[17].	Parties filed their respective written submissions and I considered both submissions as well as the affidavits. 

[18].	As can be seen from the affidavits and the submissions, the grounds upon which the applicant is seeking relief against the respondent are as follows:

i.	The 1st and 2nd respondents acted wrongly in accepting the dispute from the 3rd respondent, in an individual capacity as the griever, against the applicant, as a trade dispute can only exist between a registered union and an employee.

ii.	The 1st and 2nd respondents erred in law in referring the said dispute to the Permanent Arbitrator for settlement when there is no trade dispute between a union and an employer to be arbitrated upon pursuant to the Trade Disputes Act, as the dispute is between the 3rd respondent and the applicant.

iii.	That there is an error of law on the face of record.

iv.	That the 1st and 2nd respondents exceeded their jurisdiction in accepting the report of the 3rd respondent as a griever, in his personal capacity as a trade dispute.

[19].	The applicant submitted that, when the dispute was initially reported,it is deemed not to have been made under the provisions of the Trade Disputes Act, cap 97. This means that it falls outside the category of a trade dispute.

[20].	It was further submitted that at the time of the 3rd respondent was employed, he could not have been a voting member of the Transport Workers Union as there was no collective agreement between the applicant and the said union for deduction for union dues, the applicant had not recognised the union either voluntarily or compulsorily, the compulsory recognition order was backdated to 22.01.2004; this was after the 3rd respondent was terminated.

[21].	Therefore, the applicant argued that the 3rd respondent's claim does not fall within the time frame for recognition and as such it is not a trade dispute.

[22].	Let me consider the first ground advanced by the applicant i.e. a trade dispute can only exists between a union and an employer.

[23].	Section 3(1) of the Trade Dispute Act as amended by Trade Disputes (amendment) Act 1998 reads;

Any trade dispute, whether existing or apprehended, may be reported to the Permanent Secretary by:

an employer who is the party to the dispute or a trade union of employers representing him the dispute: or

a.	A trade union of employees recognised under the Trade Unions (Recognition) Act which is a party to the dispute;
b.	A trade union of employees that has applied for recognition under this Trade Unions (Recognition) Act and which is a party to the dispute; or

c.	A trade union of employees that has applied for recognition under the Trade Unions (Recognition) Act and which is a party to the dispute; or 

d.	An employee who is a member of a trade union that has applied for recognition under Trade Unions (Recognition) Act and which is a party to the dispute.

[24].	According to the above section an employee who is a member of a trade union that has applied for recognition under Trade Union (Recognition) Act and which is a party to the dispute can report any trade dispute to the Permanent Secretary. Therefore, court has to decide whether the trade union in which the 3rd respondent was a member has applied for recognition, when the dispute was reported to the permanent Secretary.

[25].	The respondents submitted that the 3rd respondent was legally entitled to report a trade dispute under the amendment to the Trade Dispute Act. 

[26].	The trade dispute was first reported to the Chief Executive Officer, by the union on 28.10.2004. However, the Acting Chief Executive Officer informed the union that he could not accept the report of a trade dispute since there was no collective agreement between the parties and also the application for voluntary recognition was made after the termination of the griever. 

[27].	The 3rd respondent was terminated on 07.10.2004 and the dispute was reported to the Chief Executive Officer on 28.10.2004. The annexure marked 'SA1' to the affidavit of Sahid Ali shows that the union has applied for voluntary recognition on 13.06.2003.According to 'SA2' it applied again for voluntary recognition from the applicant on 22.09.2004. and, thus, the 3rd respondent's complain clearly falls under section 3(1) c of the Trade Dispute Act 

[28].	Further, according to annexure 'H' to the affidavit of Andrew McNaught, a Compulsory Recognition Order has been issued in accordance with section 8(1) of the Trade Unions (Recognition) Act declaring that the Transport Workers Union is now entitled to recognition effective from 22.09.2004.

[29].	The applicant further submitted that there was no collective agreement between the 3rd respondent and the applicant and therefore, dispute cannot be registered as a trade dispute. In view of the above contention, it is pertinent to consider the definition of a trade dispute.

[30].	'Trade dispute' is defined as follows:

Trade dispute means any dispute or difference-

a.	Between any employer and a registered trade union recognised under the Trade Unions (Recognition) Act (Cap.96A) and connected with the employment or with the terms of employment or the conditions of labour of any employee;

b.	Between an employer and a registered trade union that has applied for recognition under the Trade Unions (Recognition) Act and connected with the termination of employment of that employee during the time when the application for recognition of the trade union is being processed; or

c.	Between an employer and an employee who is a member of a registered trade union that has applied for recognition under the Trade unions (Recognition) act and connected with the termination of employment of that employee during the time when the application for recognition of the trade union is being processed.'

[31].	In view of the above, it is my considered view that the definition of a 'trade dispute' under the Trade Dispute Act does not make any reference to a collective agreement and, therefore, an existence of a collective agreement is not a pre-requisite to a trade dispute. Hence, whether or not there was a collective agreement, it did not negate the dispute being reported to the Permanent Secretary.

[32].	The next question to be considered is whether the 3rd respondent does have a right to bring proceedings in the arbitration tribunal, and also, whether the arbitration tribunal has exceeded its jurisdiction in attempting to deal with the matter.

[33].	The applicant contends that the 3rd respondent has no locus standi to bring arbitration proceedings in the tribunal established under the Trade disputes Act. Nevertheless, it could be observed that it was not the 3rd respondent but the 1st respondent who referred the dispute to the tribunal, and therefore, the question of locus standi of the 3rd respondent does not arise.

[34].	The applicant relies on State v. Acting Permanent Secretary for Labour & Industrial Relations, Ex Parte Carpenters Fiji Ltd [1996] FJHC 157. 

[35].	In the abovementioned case, the High Court referred to the Trade Union Amendment Decree 1991. However, the Trade Disputes (Amendment) Act 1998 expressly provide for an individual employee to report a dispute if he is terminated from his employment during the trade union recognition process. In the present case, the application for recognition of the union was made on 13.06.2003, and the termination of the 3rd respondent was taken place on 07.09.2004, which clearly shows that at the time of the termination of the 3rd respondent, the trade union was in the process of recognition, thus it is apparent that the criteria stipulated in the definition of a trade dispute is evident in the dispute of the present case.

[36].	The 2nd ground of opposition advanced by the applicant is that the 1st and 2nd respondent erred in law in referring the said dispute to the Permanent Arbitrator for settlement.

[37].	It is to be noted that section 5A (5) of the Trade Disputes Act clearly empowers the 3rd respondent to refer the dispute to the arbitration tribunal.

[38].	Section 5A(5) reads:

If one or both parties fail to comply with subsection (2) or where the Disputes Committee is unable to arrive at a decision by consensus or where the dispute Committee fails to comply with sub section (3) of this section:

a.	The Permanent Secretary shall referred dispute to the Minister who shall authorise the Permanent Secretary to refer the dispute to a Tribunal for settlement; and

b.	The Tribunal after hearing the parties to the dispute shall make an award which shall be binding on the parties to the dispute. 

[39].	In light of the above provision, it is evident that the 1st and 2nd respondent have acted within their powers and not acted ultra vires in referring the dispute to the arbitration tribunal, thus the second ground of objection advanced by the applicant fails.

[40].	Another argument advanced by the applicant is that though the termination was taken place on 07.09.2004, the trade dispute did not get reported until 27.10.2005, i.e. the report was made more than a year from the date of termination, thus, the acceptance was contrary to the Act which requires the dispute to be reported within a year from the date of the dispute.

[41].	Section 4 of the principal Act is also amended in 1992. The amendment reads:

Provided that:

i.	No trade dispute which arose more than one year from the date it is reported under section shall be accepted by the Permanent Secretary except in cases where the delay or failure to report the trade dispute within the specified period was occasioned by mistake or other good cause

ii.	A report which has been rejected by the Permanent Secretary shall be deemed not to have been made under the provisions of this Act.

[42].	The 3rd respondent was terminated from his employment on 07.10.2004; and he reported the dispute on 27.10.2005, i.e. 20 days after the expiration of one year period. As can be seen from the affidavit evidence, the disputed was first reported to the secretary on 28.10.2004 by the union but it was rejected on 22.11.2004 on the ground that there was no collective agreement between the parties and the application for voluntary recognition was made after the termination of the grievor.

[43].	It could be observed that the delay is just 20 days which is not inordinate considering the circumstances under which the 3rd respondent was made to report the dispute to the Permanent Secretary and therefore in my opinion, the delay is excusable.

[44].	In an application for judicial review it is not allowed to substitute the opinion of the judiciary or of individual judges for that of the authority constituted by law to decide the matters in question. 

[45].	In Re Amin [1983] 2 A.C.818 at 829, it was stated by Lord Fraser as follows:

'Judicial review is entirely different from an ordinary appeal. It is made effective by the court quashing an administrative decision without substituting its own decision and is to be contrasted with an appeal where the appellate tribunal substitutes its own decision, on the merits for that of the administrative officer.'

[46].	In the instant case the applicant mainly challenged the locus standi of the 3rd respondents and the validity of the trade dispute reported to the 1st and 2nd respondents. Since it is plain and obvious that the 1st and 2nd respondents have not exceeded their power while referring the dispute to the arbitration tribunal, court should not intervene at this stage to stay the arbitration proceedings.

[47].	However, if the arbitration tribunal in its decision making process takes any irrelevant matters into its consideration or do not consider relevant facts and also exceeds its jurisdiction while making an award then the aggrieved party could always seek court's intervention by way of judicial review. 

[48].	Therefore, it is my considered view that the applicant has failed to establish any substantial grounds to quash the 2nd respondent's decision to refer the dispute to the arbitration tribunal.

[49].	On the above premise, I dismiss the applicant's application for judicial review. 

[50].	Cost is summarily assessed in the sum of $ 500.00.

Pradeep Hettiarachchi
JUDGE
At Suva
3rd April, 2012