National Union Factory and Commercial Workers v Golden Ocean (Fiji) Ltd [2015] FJHC 1033; ERCC1.2014 (24 December 2015)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC 1 of 2014

BETWEEN:

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS
Applicant

AND:

GOLDEN OCEAN (FIJI) LIMITED
Respondent

Appearances: Mr. D. Nairfor the Applicant.
Mr. R. P. Singh for the Respondent.
Date/Place of Judgment: Thursday 24 December 2015 at Suva.
Coram: Hon. Madam Justice A. Wati.

JUDGMENT

Catchwords:
Employment Law – Jurisdiction of Court to order compliance with order of Tribunal- proper recourse for party having the benefit of the order – application for compliance treated as a proper application for penalty for non-compliance with the order.

Legislation:

1. The Employment Relations Promulgation 2007 ("ERP"): ss. 6(2); 47(1)(b); 212 (1) (a) and (b); 221(1) (a) and (b); 221(6).
   

Cause and Background

1. There are two applications before the Court. The first is the applicant's motion filed on 6 February 2014 seeking compliance of the order of the Employment Relations Tribunal ("ERT")of 13 December 2013. The second is the respondent's application filed on 13 February 2014 to set aside the same order of the ERT pursuant to which the application for compliance is brought.
   
2. The order of the ERT was granted on an undefended basis. The ERT had ordered that the respondent comply with s. 47(1) (b) of the ERP and deduct the rightful subscription from the employees' wages and pay it to the union. It also ordered costs in favour of the applicant in the sum of $300. The timeframe given to comply with these orders was 30 days from the date of the decision.
   
3. It was agreed by the parties that the application to set aside will be treated as a response to the application for compliance without striking out the same on the grounds of jurisdiction. I will elaborate on this later.
   

Grounds and Submissions

4. The affidavit in support of the application for compliance deposes that the applicant had at the ERT filed an application on 14 October 2013 for compliance of s. 47(1) (b) of the ERP. The application was assigned a case number ERTMA 18 of 2013.
   
5. The application was set for hearing on 13 December 2013. The respondent failed to appear or make any alternative arrangements with the ERT. It was noted by the ERT that there was no appearance by the employer and that it had not been appearing in the ERT from the first call date. The ERT therefore proceeded to make the orders.
   
6. On 24 January 2014, the applicant wrote to the respondent to comply with the orders of the ERT but there had been no response so the compliance order application had to be filed in the Employment Relations Court ("ERC").
   
7. Mr. Nair argued that if the employer was not happy with the orders, it could have made an application for setting aside of the same within the 30 day timeframe within which it was to comply with the order. It was not until the applicant filed an application for compliance that the setting aside application followed in the wrong Court.
   
8. Mr. Nair contended that there is nothing in the affidavit of the respondent to indicate that it attempted to file a setting aside earlier than the current one.
   
9. It was further contended by Mr. Nair that the appeal period of 28days has also lapsed and the respondent would need leave to appeal out of time if it wants to appeal the decision but there is no insinuation by the respondent to do so.
   
10. Mr. Nair argued that pursuant to s. 47(1) (b) of the ERP, the employer is required to deduct the union subscription from the wages of the employees provided that the employees have given their consent in writing. In this case the employees who have given their consent should have their subscription deducted and sent to the union but the employer has failed to act.
    
11. Mr. Nair said that it would be prejudicial to the employer if the order is set aside. The employees would be deprived of joining the union and enjoy the benefits. Their membership can only be legitimized upon deduction and remittance of the union subscription.
    
12. The employer has demonstrated double standards. It has made selective deductions like for life insurance and housing which is also provided for by s. 47 of the ERP but it has refused to deduct union subscription despite the fact that the employees had given their written consent for the deduction to be made.
    
13. The actions of the employer is discouraging the employees from joining the union which right is provided to them under s. 6(6) of the ERP and s. 20(2) of the Constitution of the Republic of Fiji Islands.
    
14. The affidavit of the respondent deposes that Messrs Kohli & Singh were instructed to act and appear in Court on behalf of the respondent. The firm failed to appear at the dates provided by the ERT and so the orders were made in its absence.
    
15. The affidavit further deposes that this case was not listed in the cause list and the clerk of Kohli & Singh was advised that a notice of adjourned hearing would be served on its office. This was not done.
    
16. The order that was made in its absence is therefore irregular and must be set aside.The ERT has powers to set aside an irregular order.
    
17. It was also deposed in the affidavit that there is no collective agreement between the parties requiring the employer to deduct the union subscription from the wages of the employees. As such the employer is not under any contractual duty to do so.
    
18. Further, only a handful of employees had given their written consent to the union which it had passed on it for deduction.
    
19. Mr. Raman Singh argued that the order was granted on an undefended basis. The employer tried to file a setting aside application in the ERT but since the compliance application was filed in the ERC, the ERT did not accept the application.
    
20. Mr. Singh further contended that the application was made pursuant to s. 47 (1) (b) of the ERP. Section 47(1) uses the word "may"which means that the employer has discretion on whether or not it will deduct the union fees and send it to the union. By compelling the employer to deduct the fees, the ERT altered the law. There is an error of law in the order that has been granted so compliance of the same cannot be ordered.
    

Law and Analysis

21. This is a compliance application before the Court asking the Court to order the respondent to comply with the order of the ERT.
    
22. Under s. 221(1) (a) and (b), the Court only has powers to orders compliance with the provision of the Promulgation or an order, determination, direction, or requirement made or given under the Promulgation by the Court.
    
23. The Court does not have powers to order compliance with the orders of the ERT. In fact that power is specifically vested in the Tribunal itself by virtue of s. 212(1) (b) of the ERP.
    
24. In this case the ERT had ordered compliance with a provision of the ERP which powers it has under s. 212(1) (a) of the ERP. Once a compliance order is given, and there is failure to comply, the recourse open to the applicant is section 212(6) of the ERP which states that:
    

"If a person fails to comply with a compliance order made under this section, the person prejudicially affected may apply to the Court for exercise of its powers under section 221(6)".

25. Section 221(6) reads:
    

"If a person fails to comply with a compliance order made under this section, or if the Court, on an application under section 212(6), is satisfied that a person has failed to comply with the compliance order under section 212, the Court may do one or more of the following things-

(a) (Not Applicable)

(b) (Not Applicable)

(c) order that the person in default pays a penalty in a sum not exceeding $10,000, or be sentenced to imprisonment for a term not exceeding 3 months; or

(d) order that the property of the person in default be sequestered.

26. The proper application before the Court should have been made under s. 212(6) for the respondent to be punished for the failure to comply with the orders of the Courts. The Court will then give the other party an opportunity to respond why any penalty should not be imposed.
    
27. Asking for a compliance order is not the same as asking for the defendant to be dealt with for not complying with the order of the Court.
    
28. However the respondent has admitted that it has not complied with the order and has raised all its defence on why it is not complying with an order of the Court. There is therefore no prejudice if I consider the compliance application to be one asking the ERC to invoke its jurisdiction under s. 221(6) of the ERP.
    
29. Further, I will at the end of the day, allow the respondent time to show cause why any penal orders should not be made against it. This would therefore remove any prejudice to the respondent in treating the current application as one asking for the respondent to be penalized.
    
30. The respondent firstly says that it is not happy with the order of the ERT that is why the employer is asking for a setting aside of the orders.
    
31. The ERC has no jurisdiction to set aside an order of the ERT without an appeal before it. Only the ERT has jurisdiction to set aside its orders. Mr. Singh says that his office attempted to file an application for setting aside in the ERT but the ERT did not accept the same because the applicant's pending application in the ERC for compliance.
    
32. There is no material in the affidavit to this effect that a setting aside was attempted and refused in the ERT. Without any evidence of this nature, I am not prepared to place any weight on Mr. Singh's submission. Even if I were to place any weight, that would not grant me any jurisdiction to hear the application for setting aside.
    
33. Further, the respondent was given 30 days to comply with the order. If it was not happy with the decision, a setting aside ought to have been filed within that 30 day period and not after it was faced with the application in High Court to comply with the orders. This indicates that the employer fearlessly was flouting the order of the ERT thinking that it is not valid in substance. I will not condone that. People's confidence in the judicial system must be maintained.
    
34. The second argument by the respondent is that it has not entered into a collective agreement to impose on the employer a contractual obligation to deduct the union fees and submit it to the union. There need not be a contractual agreement between the parties. There is a legal provision under which the employerhas the authority to deduct the amount for the union subscription and send it to the respective union. The use of the word "may"in section 47 (1) does not mean that the employer has a valid reason why it is not deducting the union fees. There has to be satisfactory explanation why the employer chooses not to comply with the provision except to say that it will do it if it feels like it.
    
35. The employer has not given any valid reason why it does not want to make the deduction when it is the appropriate institution to carry out the deduction. The only argument is that s. 47(1) (b) is discretionary. No argument is advanced to say why the discretion is not exercised in favour of the employees. I therefore find that the employer does not have a valid reason and if there was any, the appropriate forum was to argue it at the ERT where the action for compliance originated.
    
36. Workers have a right to join any trade union and an employer has some role to encourage that right. One such role is not to discriminate any worker on the grounds of trade union membership: s. 6(2) of the ERP. The other such role is to assist the employee in deducting the union fees and forwarding it to the union so that the employees can enjoy the membership benefits: s. 47 (1) (b). If the employer does not carry out its part of the obligation, it is discouraging the employee from joining the union and it is thus bad faith on its part which should be curtailed and not promoted by the Courts. It is against the objective of the ERP to create situations that will negate the productive employment relationship between the parties.
    
37. The employer also raised that only a handful of employees had given their written consent to the union which the union forwarded to it. This indicates that the employer has seen the written consent of the workers whether it be some or all. It is to deduct the fees for those who have given their consent and not for those who have not.
    
38. I therefore find that there is no valid reason why the employer has not complied with the compliance order of the ERT.
    

Final Orders

39. I therefore give the employer 21 days to comply with the order failing which I will consider the appropriate penalty that I should impose on it.
    
40. I therefore adjourn this matter to 11 February 2016 at 2.30pm to check whether there is compliance. If there is not, the parties must make submissions on why the employer should not be penalized under s. 221 (6) (c) or (d) of the ERP and the appropriate penalty that should be imposed on the employer.
    
41. The cost of the application is granted to the applicant and the quantum to be decided on 11 February 2016 at 2.30pm.
    

Anjala Wati

Judge

24.12.2015
____________________
To:

1. Mr. D. Nair for the Applicant.
2. Messrs Kohli & Singh for the Respondent.
3. File: Suva ERCC 1 of 2014.