State v Registrar of Trade Unions, ex parte Fiji Public Service Association [1991] FJLawRp 8; [1991] 37 FLR 55 (17 July 1991)

[1991] 37 FLR 55

HIGH COURT OF FIJI

THE STATE

v

REGISTRAR OF TRADE UNIONS

ex parte

FIJI PUBLIC SERVICE ASSOCIATION

[HIGH COURT, 1991 (Byrne J), 17 July]

Revisional Jurisdiction

Employment - Trade Unions - whether existing Trade Union adequately representative - whether discretion of Registrar of Trade Unions properly exercised - Trade Unions Act (Cap 96) Sections 13(1) (e), 16, 67 (a).

The Registrar of Trade Unions registered a new Union of Air Traffic Controllers. Dismissing an application for judicial review of his decision the High Court HELD: (1) he had not breached the rules of natural justice in reaching his decision (2) his decision that the Controllers were not already adequately represented was not unreasonable, and (3) he was not debarred from reconsidering his initial refusal to register the new Union.

Cases cited:

Acting Public Service Commissioners v The Government Service Women's Federation of Australia [1921] CthArbRp 130; (1921) 15 C.A.R. 1039
Education Administrators & Teacher Educators Assn (Supreme Court) C.A. No. 14/1974
K.R. Latchan Bros. Ltd & Anor v The Sunbeam Transport Ltd & Ors C.A. Nos. 45, 51, 57,61 of 1983
Lloyd v. McMahon [1987] UKHL 5; [1987] 1 All ER 1118
R. v. Essex Justices ex parte Final [1962] 3 All ER 924
R. v. Seisdon Justices, ex parte Dougan [1983] 1 All ER 6
Re Amalgamated Printing Trades Employees' Union of N.S.W. [1944] CthArbRp 291; (1944) 52 C.A.R. 317
Re AMP Society Staff Association [1944] CthArbRp 879; (1943) 53 C.A.R. 836
Re Application by Federated Liquor & Allied Industries Employees' Union 1981 AILR 36
Re Association of Professional Engineers, Australia [1952] CthArbRp 89; (1952) 73 C.A.R. 134
Re Federated Miscellaneous Workers' Union of Australia [1974] CthArbRp 739; (1974) 157 C.A.R. 623; 1974 AILR 358
Re Industrial Life Assurance Agents Association [1942] CthArbRp 97; (1942) 46 C.A.R. 578
Re Motor Transport & Chauffeurs Association of Australia [1912] CthArbRp 55; (1912) 6 C.A.R. 122
Re National Union of Railwaymen of Australia (1938) 32 C.A.R. 443 Re Printing Trades Employees' Union of N.S.W. [1944] CthArbRp 291; (1944) 52 C.A.R. 317
Re Professional Officers (State Public Services & Instrumentalities) Assn 1978 AILR 186
Ridge v. Baldwin [1963] UKHL 2; [1964] A.C. 40
Russell v. Duke of Norfolk [1949] 1 All ER 109

Motion for judicial Review in the High Court.

H. K. Nagin for the Applicant, Fiji Public Service Association
N. Nand for the Respondent, The Registrar of Trade Unions

Byrne J:

The Applicant moves for Judicial Review and an order of Certiorari to quash. a decision of the Registrar of Trade Unions made on the 30th day of November 1988 whereby he purported to register the Fiji Air Traffic Control Officers' Association as a Trade Union under the Trade Unions Act Cap. 96 pursuant to leave granted by Jesuratnam J. on the 1st of March 1989. The facts may be stated as follows:

The Registrar caused to be published in the Fiji Republic Gazette of the 17th of June 1988 a notice dated 7th of June 1988 pursuant to Sections 13(1) (e) and 67(a) of the Trade Unions Act giving notice that Fiji Air Traffic Control Officers' Association (hereinafter referred to as FATCOA) had applied for registration and that its membership provisions were:

"The Union is open to any person resident in Fiji of either sex who is:

(a) a holder of a current Air Traffic Control Officer's Certificate Licence granted by the Civil Aviation Authority of Fiji or other competent Authority that is recognised by the International Civil Aviation Organisation;

(b) an Air Traffic Control Officer engaged in administration of Air Traffic Control;

(c) engaged as a regular Assistant to holders of Air Traffic Control Officer's Licence;

(d) engaged as an Aeronautical Information Service Officer;

(e) an operations officer and employed in the Civil Aviation Authority of Fiji."

The Registrar further invited in the same notice objections within 21 days from any registered trade union which considered itself adequately representative of the whole or substantial portion of the interest in respect of which FATCOA was seeking registration. On the 28th of June, 1988 the applicant objected to the registration of FATCOA.

The Applicant's basic objection was that it adequately represented the interests of members of FATCOA. The Registrar subsequently caused a notice dated the 20th of September 1988 to be placed in the Fiji Times giving notice that FATCOA's application for registration was refused on the ground that its members were adequately represented by the Applicant. In coming to this conclusion the Registrar was obviously influenced by a letter dated the 28th of June 1988 in which the Applicant had stated its objections to the registration of FATCOA upon the following grounds:

(i) that the FPSA (the Applicant) adequately represented the whole of the interest in respect of which FATCOA sought registration;

(ii) that the classes and categories of persons specified in the gazette notice as eligible for membership of FATCOA are in fact represented by the Applicant and have their terms and conditions of employment regulated by a Collective Agreement between the Applicant and the Civil Aviation Authority of Fiji, which was entered into on the 2nd of September 1983 and continues to remain in force;

(iii) that the Air Traffic Control Personnel in whose respect registration was sought are but a very small proportion of the CAAF workforce of salaried personnel, numbering approximately 25 out of 400 employees and registration could lead to more union problems resulting in adverse consequences for the aviation industry;

(iv) that under the Collective Agreement dated 2nd of September 1983 the Applicant is recognised as the sole representative and bargaining agent on behalf of the salaried employees of the CAAF, pertaining to rates of pay, hours of work, discipline and all / other terms and conditions of employment. As such it was alleged FATCOA could not be of any meaningful effect as a trade union;

(v) that no other employer except the CAAF and the Government of Fiji employs the classes and categories of Air Traffic Control Officers and in both cases the Applicant represents the employees in question.

It is common ground that subsequently on the 30th day of November 1988 the Registrar registered FATCOA as a trade union and gave notice of the same in the Fiji Republic Gazette of the 16th of December 1988.

As might be expected the Applicant wrote to the Registrar on the 9th of January 1988 seeking an explanation from him as to why, having originally refused FATCOA registration on the 20th of September 1988, subsequently on the 16th of December 1988 he had allowed registration of FATCOA.

In a letter to the Applicant dated the 12th of January 1989 the Registrar informed the Applicant that following his initial refusal to register FATCOA the solicitor for FATCOA requested the Registrar to reconsider his decision on the ground that certain important documents which should have been considered by the Trade Unions Advisory Committee at its meeting on the 19th of July 1988 recommending non-registration of FATCOA were not then available through over-sight on the part of FATCOA.

The Registrar referred this request for reconsideration to a meeting of the Trade Unions Advisory Committee on the 28th of October 1988 when it was agreed that if the Registrar considered the documents and the further representation justified placing them before the committee, the committee would reconsider the matter. The Registrar read the documents and the solicitor's representation and finding them worthy of consideration referred them to the meeting of the Trade Unions Advisory Committee on the 29th of November 1988. Apparently at that meeting two members considered FATCOA should not be registered and the third did not express any views. The situation then obtaining has been summarised by the Registrar in paragraphs 4(d) and (e) of an affidavit which he swore on the 24th of May 1989. I now quote his words verbatim:

(d) "When the application came for consideration for the first time, the application was refused on the ground that there being nothing to show support from ILO, I was satisfied that the applicant could continue to represent the interests of FATCOA.

(e) After the refusal was published, FATCOA through their lawyer Mr. Tevita Fa requested a reconsideration of the decision. He advised then that he would produce the paper from ILO. This I agreed to and the paper was duly circulated to the members of the Trade Unions Advisory Committee. At the next meeting, I took the view that FATCOA's interests had not been adequately served by the applicant. Registration was therefore granted."

At this point I should mention Section 13(1) (e) of the Trade Unions Act on which the Registrar relied when granting FATCOA's registration:

"13(1) The Registrar may refuse to register any trade union if he is satisfied that-

(e) any other trade union already registered is adequately representative of the whole or of a substantial proportion of the interests in respect of which the applicants seek registration;

Provided that the Registrar shall, by notice in the Gazette or otherwise, notify any registered trade union which appears to him to represent the same interests as the applicants of the receipt of such application, and shall invite the registered trade union concerned to submit in writing within a period of twenty-one days any objections which any such trade union may wish to make against registration."

The Applicant challenges the Registrar's decision on' three grounds:

(i) it was in breach of the rules of natural justice;

(ii) it was an abuse of the Registrar's discretion;

(iii) the decision was made in excess of the Registrar's discretion.

I shall consider these grounds and the law applicable to a case of this nature shortly but before doing so it is useful to consider the document annexed to the Registrar's affidavit of the 24th of May. This was a final report prepared by the International Labour Organisation in May 1979 on a conference held by the International Federation of Air Traffic Controllers Association. This meeting came to various conclusions on the duties, conditions of employment and suggested rights of International Air Traffic Controllers. These were summarised on page 3 of the report and I set them out here because the Applicant alleges in an affidavit sworn by its General Secretary, Mahendra Pal Chaudhry on the 5th of July 1990 that the Collective Agreement between the Applicant and the CAAF provides for all the items mentioned on page 3. I shall examine this allegation later but now list the summary I have mentioned:

1. Freedom of association (conclusions 1 to 4).

2. Right of participation in technical and social conditions of work (conclusions 5 and 6).

3. Settlement of disputes through negotiation and, if necessary, mediation/conciliation/voluntary arbitration (conclusion 8).

4. Less working hours (conclusions 18 to 24).

5. Extra leave (conclusion 26).

6. Remuneration: uniqueness of the profession. However if comparison deemed necessary: professional pilot, airline captain (conclusions 27 and 28).

7. Early retirement (conclusions 29 and 30).

8. Medical follow up in order to detect and prevent health deterioration (conclusions 31 to 36).

9. Provide ATCO's with adequate legal protection and counsel (conclusions 37 to 42).

10. Adequate manpower and career planning (conclusions 43 and 44).

11. Regular refresher courses and fam flights. Training to PPL (conclusions 45 and 48).

12. L.O.L. and second career (conclusions 50 and 51).

In my view these conclusions are important in the resolution of this case and accordingly I shall now quote some of them which seem to me to be most relevant for present purposes.

Item 2 for example reads in part:

"In particular, ATCOs (Air Traffic Controllers) should have the right to establish .and join organisations of their own choosing without previous authorisation. These organisations should have the right to draw up their own constitutions and rules, elect their representatives in full freedom, organise their administration and activities and formulate their programmes without interference from public authorities."

At page 20 under the heading Hours of work, Item 18 states:

"ATCOs are directly involved in the safety of civil aviation and have problems which are unique to their profession, and their concern with safety could broadly be compared with that of pilots."

I interpolate here that pilots in Fiji have their own trade union called Fiji Airline Pilots Association which I am informed by counsel for the Respondent has been in existence since November 1965.

On page 21 of the report Item 27 reads in part:

"Because of the uniqueness of the air traffic control profession, it does not readily lend itself to comparisons with other professions. However, to ensure that the ATCOs' remuneration is commensurate with their responsibilities, it should be noted that one of the professions in which the responsibilities assumed closely resemble that of the ATCO is that of the professional pilot."

Items 29 and 30 deal with the age of retirement and pensions and read as follows:

"The principle of an early age of retirement should be recognised for ATCOs in view of the peculiarity of this profession and in the interest of air safety. This early age of retirement should be determined by negotiations at the national level between the employer and ATCO trade unions and/or such other representative organisations.

The requirement for retirement at an earlier age than that of other employees should enable ATCOs to receive pension benefits as if service had continued to normal retirement age, the method of assessment of such benefits to be the subject of negotiations between the employer and ATCO trade unions and/or other such representative organisations."

Item 34 claims that studies which have been carried out indicate that Air Traffic Controllers have a stress problem and that research into this is necessary to identify the causes of stress and its impact on the Air Traffic Controllers.

Finally at page 24 Item 50 discusses employment security. It reads as follows:

"Throughout his career the ATCO is exposed to the concrete and constant risk of losing his licence on ground of medical or technical incapacity, thereby ceasing to be able to exercise his profession and thus losing his livelihood. Since the number of suitable and meaningful posts for re-employing the ATCO within the civil service is rather limited in view of his specialised background, training and experience, employer-sponsored loss of licence insurance schemes and employer-sponsored second career programmes should be encouraged for ATCOs in all countries, more particularly where ATC is run by a private company and where re-employment possibilities are thus even more difficult to obtain. If the ATCO is to be re-employed after he has lost his licence, he should be given thorough retraining of his new post."

I am satisfied that it was with these matters mentioned in the ILO report in mind the Registrar reconsidered his previous decision and allowed registration of FATCOA.

I now pass to the submissions made to me and the relevant law. I deal first with the alleged breach of natural justice by the Registrar. Counsel for the Applicant first argues that by reconsidering FATCOA's registration and particularly the ILO report the Registrar should have called on the Applicant to reply to that report. As to this the Registrar says there was nothing more that the Applicant could have said and this is why he denied the Applicant an opportunity to be heard. I mention here that the Registrar also alleged in his affidavit that the Applicant had never looked after the interests of the Air Traffic Controllers and that the ILO experts had "looked into the situation and found them wanting their recommendations, the Applicant did nothing" (sic). I cannot understand what the Registrar means by this statement and it is only fair to say that there is no evidence before me that the Applicant had never looked after the interests of Air Traffic Controllers. Nor is there any evidence that ILO experts had found the Applicant wanting, presumably in its care for Air Traffic Controllers. However as will be seen later I do not consider this is the end of the matter for the members of FATCOA. It may well be that the fact that FATCOA had applied for registration as a union persuaded the Registrar that its members were not satisfied that they were being adequately represented by the Applicant; hence their desire to form their own union.

Counsel then submits that the Registrar has committed a serious breach of the rules of natural justice and his decision should therefore be quashed. It is said by the applicant that Section 13 of the Trade Unions Act clearly envisages that the rules of natural justice should apply when the Registrar considers an application for registration of a trade union. I am prepared to accept this to a point but the question then is whether in all the circumstances the Registrar has denied natural justice to the Applicant. The Respondent argues that the right to a fair hearing in circumstances such as the present is limited and was complied with, or alternatively, that even if the Applicant had been given the right to make further representations, it would have made no difference.

In my judgment the case law establishes that the right to a fair hearing can be limited and that its extent depends on what Tucker LJ. called "the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the special matter that is being dealt with ...." Russell v. Duke of Norfolk [1949] 1 All E.R. 109 at p. 118. In Rike v. Baldwin [1963] UKHL 2; [1964] A.C. 40 at pp. 64-65 Lord Reid said that the test is what a reasonable man would regard as fair procedure in particular circumstances. In the much later case of Lloyd v. McMahon [1987] UKHL 5; [1987] 1 All E.R. 1118 at p. 1161 Lord Bridge said:

"My Lords, the so-called rules of natural justice are not engraved on tablets of stone. To use the phrase which better expresses the underlying concept, what the requirement of fairness demand when any body, domestic, administrative or judicial, has to make a decision which will affect the rights of individuals depends on the character of the decision-making body, the kind of decision it has to make and the statutory or other framework in which it operates."

In other words His Lordship was saying that the rules of natural justice are flexible and must depend on the circumstances of particular cases and the functions and responsibilities of the decision-maker. Thus in de Smith's Judicial Review of Administrative Action, Fourth Edition at p. 185 dealing with the Audi Alteram Partem Rule it is said:

"Thus the further removed from the judicial paradigm a particular function is, the weaker will be the analogy between the procedure appropriate for its exercise and that followed in a court of law. Although terminology is not always consistent, decision-making power is likely to be characterised as "administrative" when the court has decided that it may be reliably exercised pursuant to a procedure that deviates in one or more significant ways from that familiar in courts of law."

It is therefore relevant to consider precisely what the functions of the Registrar are. They are set out in Sections 6, 10, 11, 12, 13, 14, 55, 57 and 67 of the Trade Unions Act and the regulations made thereunder. In my view it may be said that in most respects the functions of the Registrar are administrative except possibly for his duties under Section 13. Here I regard the Registrar's functions as at best quasi judicial and concerned with his general responsibility of administering (my emphasis) the Act. In any event I am not satisfied that even if it could be said his functions were more than quasi judicial or administrative he could be held to have denied natural justice to the Applicant. He himself has to some extent answered this allegation in paragraph 4(f) of his first affidavit of the 24th of May 1989 where he says:

"There was no breach of natural justice as the applicant was invited to object and did object to the application. Tevita Fa did not appear at the hearing and he only submitted a paper which included ILO recommendation."

I have read the affidavits and submissions in this case a number of times and having done so I remain unsatisfied that even if the Registrar had given the Applicant a further opportunity to put its case, this would have made any difference in the end. All the Applicant did when registration was granted to FATCOA was primarily to write the letter of the 28th of June 1988 and I disagree with the comment in the Applicant's letter later to the Registrar of the 23rd of January 1989 that:

"You were entertaining a procedure not only irregular but unlawful."

Perhaps the Registrar's actions were not expected by the Applicant but I do not consider for this reason that they were irregular and certainly not unlawful. It seems to me that this letter of the 23rd of January and the earlier one of the 28th June 1988 failed to recognise the true functions and responsibilities of the Registrar which I have endeavoured to set out above.

The Applicant further submits that in acting as he did the Registrar showed bias against the FPSA and, perhaps not unnaturally, it relies on paragraphs 2(c) and 4(h) of the Registrar's affidavit of 24th of May 1989. I have already mentioned these paragraphs and it must be said that paragraph 4(h) is to some extent unfortunate. It may well be that the Registrar genuinely believed that the Applicant had never looked after the interests of Air Traffic Controllers but there is no evidence before me, and I doubt whether there was any before the Registrar, that ILO experts had looked into the situation in Fiji and found the Applicant wanting. That said, however, it is a long step then to claim that the Registrar showed bias against the Applicant. To decide this one must look at the evidence as a whole and not mere segments of it. For reasons on which I shall enlarge later, overall I am satisfied that the Registrar did not show any bias against the Applicant. As was said by Mr. Justice Speight in the Fiji Court of Appeal in K.R. Latchan Bros. Ltd. and Another v. Sunbeam Transport Ltd. and Others (C.A. Nos. 45, 51, 57, 61 of 1983) at p.19 of the report, "Now the test in these matters is well understood - would the circumstances cause a reasonable onlooker to think there was a real likelihood of bias? - i.e. no proof of the same but reasonable suspicion."

Reviewing all the material in this case I consider that the reason why the Registrar registered FATCOA vas not because of any bias against the Applicant but rather because, having considered the ILO documents, it was brought home to him that Air Traffic Controllers were a very special type of employees of the members of the Applicant. I would need far more evidence than I have to persuade me that in this case the Registrar acted in bad faith. I accordingly reject the Applicant's first ground of review.

I now turn to the allegation that the Registrar abused his discretion. This involves a consideration of Section 13(e) of the Trade Unions Act and the meaning of the expression "adequately representative of”. In Australia the equivalent of Section 13(e) of the Trade Unions Act is to be found in Section 142 of the Commonwealth Conciliation and Arbitration Act which was introduced into the Act in 1909. The Australian section reads:

"The Registrar shall, unless in all the circumstances he thinks it undesirable so to do, refuse to register any association as an organisation if an organisation, to which the members of the association might conveniently belong has already been registered."

The purpose of Section 142 when it was introduced, and as it presently remains, was to prevent the registration of too many representative organisations (see the remarks of Dethridge CJ. in Re National Union of Railwaymen of Australia (1938) 32 C.A.R. 443 at p. 449.) However although Section 13(e) of the Fiji legislation is different in that it uses the expression "adequately representative of' rather than "conveniently belong" it has been held in Australia that the extent to which a registered organisation is adequately representing certain employees will be relevant to any "conveniently belong" question. (See Re Federated Miscellaneous Workers' Union of Australia [1974] CthArbRp 739; (1974) 157 C.A.R. 623; 1974 AILR 358, Re Professional Officers (State Public Services and Instrumentality) Association 1978 AILR 186 and Re Application by Federated Liquor and Allied Industries Employees' Union 1981 AILR 36.)

In. Australia there have been many cases on the meaning and application of Section 142 but among the criteria which are crucially relevant to the determination of the question are the following:

1. The bona fide and genuinely held desires of the members of the association are always significant (see the remarks of Higgins J. in Re Motor Transport and Chauffeurs Association of Australia [1912] CthArbRp 55; (1912) 6 C.A.R. 122 at p. D 124).

2. There must exist an "industrial interest" of the members referable to a particular industry or craft, that interest justifying the application for separate registration (see the judgment of Powers J. in Acting Public Service Commissioners v. The Government Service Women's Federation of Australia [1921] CthArbRp 130; (1921) 15 C.A.R. 1039).

3. Registration of an association will not be refused simply because there is already an organisation of employees registered in the same industry or occupation (see Piper CJ. in Re AMP Society Staff Association [1944] CthArbRp 879; (1943) 53 C.A.R. 836).

4. The objecting organisation must demonstrate that all or substantially all of the members of the applicant association might conveniently belong to another organisation, otherwise the applicant association will be prima facie entitled to registration (see Higgins J. in Re Motor Transport and Chauffeurs Association of Australia [1912] CthArbRp 55; (1912) 6 C.A.R. 122 at p.124).

5. The "convenience" referred to in sec. 142 of the Act is the convenience of the members of the applicant association (see the Kelly J. in Re Printing Trades Emp1oyees' Union of N.S.W. (1944) 52 C.A.R. S17 at p. 322 approved by a full Bench of the Commission in Re Association of Professional Engineers, Australia [1952] CthArbRp 89; (1952) 73 C.A.R. 134 at p. 152).

It has been held also in Australia that the mere fact that members of an applicant association come within the eligibility rules of another already registered organisation will not enable the prior registered organisation to automatically succeed with a "conveniently belong" argument (see Kelly J. in Re Amalgamated Printing Trades Employees' Union of N.S.W. [1944] CthArbRp 291; (1944) 52 C.A.R. 317).

Likewise it has been held in Australia that the existence of a "community of interest" between the members of the applicant association which is not shared with members of organisations already registered may establish the need for a separate organisation (see the joint judgment of Kelly CJ. and Wright J. in Re Association of Professional Engineers, Australia [1952] CthArbRp 89; (1952) 73 C.A.R. 134 at pp. 151-52). In that case their Honours said that it was important to guard against the possibility of a community of interest being destroyed or weakened or not adequately advanced if they found themselves swallowed up in the larger membership of the registered body. They went on, "it is, of course, necessary that the desire to have an association and an organisation o their own, expressed by the members of the applicant must be a reasonable - what has been termed a valid one: - it must be put forward up on reasonable grounds."

In Re Industrial Life Assurance Agents Association [1942] CthArbRp 97; (1942) 46 C.A.R. 578 at p. 586 the Commonwealth Arbitration Court said that the main functions and duties of particular employees may make it inappropriate for them to be members of an already registered organisation even though they are eligible to join it.

In Fiji it has been stated by Mishra J. in Education Administrators and Teacher Educators Association (Supreme Court) C.A. No. 1.4 of 1974 at p. 4 of his judgment:

"The system of education in this country is growing rapidly both in its size and in its scope and it is conceivable that certain groups within the system may in time acquire special interests relating to their status, or their specific needs, which may be somewhat in conflict with interests of the general membership of the three unions referred to in this judgment. In such a case, separate representation for them may become necessary and desirable under the Trade Unions Ordinance."

In my view therefore bearing in mind all these principles the Registrar was entitled to consider the special nature of the work of Air Traffic Controllers when deciding to register their association. In an Affidavit in Reply sworn on the 5th of July 1990 the General Secretary of the Applicant, Mahendra Pal Chaudhry mentions in paragraph 3 the fact that in 1989 the Applicant successfully negotiated two pay increases of a total of 21 percent for all salaried employees of CAAF and says that these also applied to and benefited the Air Traffic Control Officers. This of course may not have been before the Registrar when he registered FATCOA although I would be surprised if he was not aware of it. That, however, in my view does not of itself show adequate representation by the Applicant. There is nothing before me to suggest that FATCOA itself would not be capable of achieving wage rises for its members.

In the same affidavit Mr. Chaudhry claims that the Collective Agreement between the Applicant and the CAAF provides for all items 1-12 registered at page 3 of the ILO document. It was for this reason that before preparing this judgment I requested the Applicant's solicitor to send me a copy of the Collective Agreement referred to by Mr. Chaudhry. I received this on the 18th of June 1991 and have studied it. Having done so I am satisfied that Mr. Chaudhry's claim simply cannot be sustained. It is clear that the Collective Agreement is couched in very general terms obviously intended to cover members of the Public Service Association generally but without any regard as far as I can see to the specialised nature of the work of Air Traffic Controllers. The closest the agreement gets to page 3 of the ILO report is on page 4 of the Agreement where it says:

"Subject to exigencies of the Authority paid leave shall be granted at any one time to no more than three officials, if employees of the Authority, to attend properly convened meetings of the Association, Courses, Conferences, Seminars; to attend as official Delegates to conferences conducted or sponsored by a recognised national or international trade union centre and to attend to trade union matters in response to a request from the Government of Fiji."

It is submitted on behalf of the Applicant that the ILO document was clearly not relevant to the dispute, I cannot accept this. In my opinion far from not being relevant the ILO document highlights the very real differences between the work of Air Traffic Controllers and those of other employees in the general workforce. The profession of Air Traffic Controllers is one which undoubtedly requires intense concentration and with that heavy responsibilities because the Air Traffic Controller when for example supervising the take-off or landing of an aircraft, especially a passenger aircraft has as much responsibilities as the pilot or pilots of that aircraft. It is common knowledge that these are the two most crucial periods of an aircraft's flight. At those times the lives of all passengers and crew on board are as much in the hands of the Air Traffic Controller in my view as they are in the hands of the pilot or co-pilot of the aeroplane. It is the Air Traffic Controller who must satisfy himself that the aircraft can be cleared safely for take-off or landing. Any error of judgment on his part could be fatal.

Accordingly I consider that on the material before him the Registrar was entitled to give Air Traffic Controllers the right to enjoy a separate bargaining power with CAAF. I therefore do not consider that the Registrar abused his discretion in allowing registration of the association. I cannot agree that the Registrar's actions warrant condemnation and a severe reprimand from this Court so that in future he will conduct himself in a proper manner, as contended for by the counsel for the Applicant.

As a further ground for up-holding the Registrar's decision I would also rely on the constitution of the Fiji Air Traffic Control Officers' Association and that of the Fiji Public Service Association. One has only to examine the objects of each association to realise this. Whereas the objects of the FPSA are most general in their language and intent (see clause 4 of the Constitution), those of FATCOA are far more specific. They leave no doubt in my mind that the object of the association set out also in paragraph 4 of the Constitution clearly have the special interests of Air Traffic Controllers in mind. In my judgment the Registrar was entitled to compare these two Constitutions in deciding whether FATCOA should be registered. I am satisfied that he did so and that this was a proper exercise of his functions as Registrar.

Finally I turn to the last submission made by counsel for the Applicant. This is the claim that the Registrar had become functus officio when he first refused registration of FATCOA on 20th of September 1988. It is said that the Registrar had no power thereafter to reconsider the case. Counsel relies in support of this submission on the case of R. v. Essex Justices Ex parte Final [1962] 3 All E.R. 924 which was a case concerning a decision of Magistrates' Court, K. was charged with a motoring offence. After hearing evidence, the chairman of the bench announced the determination and decision of the court to the effect that K. would be fined, whereon K's solicitor produced further argument to the effect that the case had not been proved. The justices, after hearing the further argument, dismissed the information. On an application for an order of certiorari to quash the justices' decision dismissing the information on the ground that they had no power to do so once they had convicted K., and for an order of mandamus requiring the justices to substitute in the register a conviction and the sentence of a fine: Held: certiorari and mandamus would be granted, because what the chairman of the bench announced amounted to a conviction and the justices were functus officio at the moment when they had announced their decision.

This case and the later case of R. v. Seisdon Justices, ex parte Dougan [1983] 1 All E.R. 6, which refers to Final's case are both distinguishable in my view from the facts of the present case. Both actions concern decisions of Magistrates' Courts which are bound by strict rules of evidence. In my judgment the Registrar is not so bound because there is nothing in the Trade Unions Act to suggest this is so. It is true that Section 16 of the Trade Unions Act gives FATCOA the right of appeal to this Court against the Registrar's refusal to register it initially but Section 16 is in permissive terms only and I do not consider that it barred FATCOA from asking the Registrar to reconsider his refusal. He was entitled to hold, as it transpired correctly, that the door was not finally closed. I do not consider that the Registrar was obliged to inform FATCOA that its only remedy was to appeal to this Court. In my view he was entitled to consider any further material which FATCOA wished to place before him.

For these reasons I reject the application for Judicial Review and hold that Certiorari should not run. The Applicant must be ordered to pay the Respondent's costs.

(Motion for Judicial Review dismissed)