Air Pacific Employees Association v Air Pacific Ltd [1992] FJLawRp 24; [1992] 38 FLR 46 (10 March 1992)

[1992] 38 FLR 46

HIGH COURT OF FIJI

Civil Jurisdiction

AIR PACIFIC EMPLOYEES ASSOCIATION

v

AIR PACIFIC LIMITED

Jayaratne J

10 March 1992

Employment - recruitment policy - whether discriminatory - whether susceptible to declaratory judgment - High Court Rules 1988 Order 25 r. 5.

A trades union sought declarations that the Defendant's recruitment policy was unfair and discriminatory. While granting the declarations sought the High Court reviewed the history, development and scope of declaratory judgments.

Cases cited:

Anisminic Ltd. v Foreign Compensation Commission [1968] 2 QB 862
Bruce v Commonwealth Trade Mark Labour Association [1907] HCA 41; (1907) 4 CLR 1569
Carl-Zeiss Stiftung v Herbert Smith & Co. [1968] 2 All ER 1002
Dyson v Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410
Gele v El Vino Co. Ltd. (1982) 126 SJ.769 CA
Guaranty Trust Company o f New York v Hannay & Company [1915] 2 KB 536
Howard v Pickford Tool Co. [1951] 1 KB 417
London v Ryder (No. 2) [1953] Ch. 423
Malone v Metropolitan Police Commissioner [1979] Ch. 344
Mandla and Another v Dowell Lee & Others [1982] UKHL 7; [1983] 2 WLR 620
Pyx Granite Co. v Ministry of Housing and Local Government [1958] 1 QB
Reunion Commercial and Industrial Bank v British Bank for Foreign Trade Co. [1921] 2 AC 438
R v Customs and Excise Commissioners ex parte Hedges and Butler Ltd. [1986] 2 All ER 164
Spettabile Consorzio Venezuano dt Armananto v Northumberland Ship Building Co. (1919) 121 LT 628.
St Mary's Islington Vestry v Hornsey U.D.C. [1900] UKLawRpCh 59; [1900] 1 Ch. 695

Action for declaratory Judgment in the High Court.

H.M. Patel for the Plaintiff
J. Singh for the Defendant

Jayaratne J:

This Judgment is in respect of an Originating Summons dated 28.3.1990 by the two plaintiffs seeking Declaratory Orders to the effect that the New Air Pacific Recruitment Policy of the Defendant is unfair, discriminatory antinational and contrary to Public Policy. The Injunction Order sought by the Plaintiffs was not pursued.

The second plaintiff withdrew from the case. The affidavit sworn by Shri Ramlu Naidu in support of the 2nd plaintiff accordingly fell into disuse. Attar Singh in his affidavit dated 3.4.1990 has deposed that the first plaintiff (the only plaintiff available after the withdrawal of the 2nd plaintiff) hereinafter referred to as APEA is a trade union; the APEA and the Defendant Company Air Pacific Ltd. has entered into a General Agreement pertaining to salaries, Hours of work, Postings, Disciplinary and Grievance procedures; the Defendant guaranteed the APEA equal treatment under the said agreement regarding their promotions and/or creation of new jobs or vacancies; the executive committee of the Defendant issued a Recruitment Policy dated 15.1.1990 which is discriminatory and racist in nature; that there is a racial imbalance in the staff intake after 1988; the new Recruitment Policy is causing hardship and unfairness to all non indigenous Fijians and Rotuman members of the APEA.

There is only one affidavit from the Defendant, the deponent being one Bal Krishna. In point of fact the affidavit is the one filed in support of the summons by the Defendant to strike out the Originating Summons under Order 18 r 18. The application had been decided by my brother Judge Byrne. Perusing it I find that the affidavit has depositions in direct reply to what is deposed to in Attar Singh's affidavit. It is therefore appropriate to refer to it in detail. Bal Krishna has deposed that Clause 6(c) of the APEA agreement considers the performance, experience, qualifications, efficiency and length of service for promotions; Clause 1 of the Recruitment Policy Statement refers to the selection of the best qualified persons for the job regardless of race, sex and origin; preference shall be given to Indigenous Fijians (including Rotumans) when they have equal attributes to other candidates with a view to achieving an equitable distribution of Indigenous Fijians in all levels relative to national racial parity; the Company will provide all employees regardless of race, sex and origin with appointments to advance in position; the Company is committed to the policy of localisation; the policy statement is consistent with the provisions of the APEA agreement; there will be no dispute until such time a grievance procedure has been followed. Attar Singh has replied to this affidavit deposing that the new Recruitment Policy was unilaterally decided and drawn up contrary to the views expressed in the General agreement; there was no need of a new Recruitment Policy as Clause 6(c) in the agreement dished out equality and fairness to all employees, regardless of race, sex and origin; Clause I (b) of the Recruitment Policy is causing grave concern to the members; attempted to have a meaningful dialogue with the executive committee of the Defendant but failed.

On the day of the hearing of the Originating Summons the parties agreed to rely on the affidavit evidence and also undertook to submit written submissions which are before me for my consideration. I shall now refer to them. Mr. Patel in his written submissions has stated that the General agreement between the Air Pacific Ltd. and Air Pacific Employees entered into on 24.8.1981 is still valid and enforceable, it does not discriminate or violate the employees rights or powers on the grounds of race or colour; Clauses 6, 37, 38 deal with salary vacancies and the bargaining procedure; 18, 19 and 21 deal with promotions, acting positions; on the 15 of January 1990 Air Pacific Ltd. unilaterally issued a new Recruitment Policy. He also referred me to (b) of the Policy Statement. He has further submitted that the unilateral policy on recruitment has caused a fundamental breach of the concept of goodwill and trust created by the General Agreement, there is a preferential treatment on racial criteria which is a clear breach of the Agreement; there is discrimination against other races; the members of the Association will suffer severely by this Recruitment Policy. He has further cited Section 16(1) of the New Constitution of Fiji and supported his arguments by the decision in Guaranty Trust Company of New York v. Hannay & Company [1915] 2 KB 536.

Mr. Barrie Sweetman the signatory to the written submissions has stated that the court has no power to grant the relief sought, it has no power to interfere with the policy making process of the private limited liability company concerning the recruitment of its employees unless such policy breaches the contract of employment; no breaches or act can be gleaned from any of the facts adduced in the affidavits; the court cannot give declaratory relief in hypothetical situations. He cites Howard v. Pickford Tool Co. [1951] 1 KB 417 and Carl-Zeiss Stiftung v. Herbert Smith & Co [1968] 2 All ER 1002 at 1004. He has further submitted that if the plaintiff had a genuine grievance, they should have raised it under the grievance procedure; there is no room for the court to make any discretionary declarations as the plaintiff has not followed any agreed remedial process, there is no grievance except a desire to frustrate or interfere with the exercise of management functions, the excerpt on page 306 (475 4th Edition) has no application to the present case as it concerned with public rights; the recruitment policy is not a negotiable matter and no prior consultation is necessary: the plaintiff association cannot represent future employees or their future prospects; the association has no interest in the subject matter, there is no dispute shown by the plaintiff as existing: even if there is, there is the machinery, set out in the agreement to deal with it. He has further stated that the Recruitment Policy, does not unfairly discriminate against any member of the plaintiff association; the policy is to select the best for the job regardless of race, sex and origin: the Constitution of Fiji does not apply to the present case as it deals with a private company registered under the Company's Act and not a public authority: the plaintiffs claim does not seek the declaration of a legally unenforceable right. He supports his submissions by citing the following authorities - Malone v Metropolitan Police Commissioner [1979] Ch. 344, Bruce v Commonwealth Trade Mark Labour Association [1907] HCA 41; (1907) 4 CLR 1569 at 1571 Anisminic Ltd. v Foreign Compensation Commission [1968] 2 QB 862 at 910.

In reply to the written submissions of Mr. Sweetman, Mr. Patel has submitted that his claim is neither academic nor hypothetical; it concerns the lives of the members depending on their jobs, promotions and postings etc.; the plaintiffs are seeking declarations as to their legal and/or equitable rights; the counsel for the Defendant is relying on technicalities; the Defendant being concerned with a National Airline is putting forward a racial Recruitment Policy. He cites De Smith (3rd Edition) 374 & 387.

The thrust of the argument of Mr. Sweetman is that there is no basis for the relief sought by the plaintiff either in fact or in Law. It is apposite to deal with the factual side of the case as Mr. Sweetman sees it supported by the affidavit of Bal Krishna. The affidavit tends to establish in the main that the Recruitment Policy of the Defendant is necessary to achieve an equitable distribution of indigenous Fijians in all levels relative to national racial parity. It is also a device whereby the best qualified persons can be selected for a particular job regardless of race, sex and origin. It is also printed out by the same affidavit that there is a grievance procedure laid down in the collective agreement to be followed in the event of a genuine grievance. Finally it has shown that the Recruitment Policy is neither conflicting nor inconsistent with the provisions of the collective agreement.

On the law Mr. Sweetman seems to confirm that the court has no power to interfere with the policy malting power of a private Company concerning the recruitment of its employees. Above all he emphasises that the court has no power to make declaratory orders in hypothetical cases. Mr. Sweetman has cited Howard v. Pickford Tool Co. (supra). The facts of the above case appear to be very simple although they are factually different from the case in hand. I appreciate the ratio decidendi that there is jurisdiction conferred on the court by order 25 r 5 to make declaratory orders in appropriate cases and it should not be used to answer academic questions. The counsel for the plaintiff argued that it was open for the plaintiff to come to the court and ask for a declaration as to his rights. He further argued that if a party is in doubt as to his rights under an agreement, it should be open to him to apply under Order 25 r 5 for a declaration as to his rights before he commits himself to any course of conduct which may prejudice him. (emphasis is mine)

He has further submitted that a declaration under Order 25 r 5 is a convenient procedure for a plaintiff who does not know his position. In another citation of his Carl Zeiss Stiftung v. Herbert Smith & Co. (supra) Mr. Sweetman has quoted Lord Denning then MR. as having said thus –

'I always like to know the facts before deciding the law.'

It is true that facts ought to be known clearly for one to understand the subsisting law. If the law is powerful enough to dispose of the case on a preliminary point, it should be the first step to obviate the expense and the time of court. The case before the court is simple in the form of facts but involved in the form of law. With one stroke of the pen, one cannot decide that the courts have no power to make declaratory Judgments on academic or hypothetical questions. What is academic, what is hypothetical and what is factual, are questions to be determined when a declaration is sought. The decision in the celebrated Anisminic case (supra) does not apply to the facts of the case as Diplock LJ is considering a declaratory Judgment as an alternative procedure to certiorari. Here is a case where there is neither a determination nor an enforceable liability. Therefore it is out. The next citation of his is that of Malone v Metropolitan Police Commissioner (supra). To distinguish the facts of that case from those of the present case I am now handling is considered worthwhile to show its inaptness. In one's case the plaintiff had sought a declaration that the tapping and monitoring of his telephone conversation on the warrant of the Home Secretary was unlawful. The declaration sought was not granted on the following grounds:-

1. the matter was not justiciable in English Courts - not a legal or equitable right - moral, social or political matters were not taken into consideration - the Convention on Human Rights was not justiciable.

2. There was no law against telephone tapping in England - therefore not unlawful - done in the prevention of crime.

3. No property could be established over the words transmitted over a telephone.

4. No general right of privacy by English law

5. That the plaintiff had no contractual right of confidentiality arising from the provision of telephone services by the Post Office.

6. The interceptions of the conversation was not by the Defendants but by the Post Office.

The facts of the case in hand are not such far-fetched, absurd and abstract notions as above. Instead they are based on some concrete facts which need Judicial recognition and appraisal.

Turning to the text book writers on the topic of Declarations, an area considered infertile before 1883 to implant their ideas has now become quite a fertile one. Wade, in his Administrative Law (sixth edition) page 593 has stated that declaratory Judgments play a large part in private law and are a particularly valuable remedy for settling disputes before they reach the point where a right is infringed.

He has further stated thus:

'The essence of a declaratory Judgment is that it states the rights or legal position of the parties as they stand, without changing them in any way, though it may be supplemented by other remedies in suitable cases. Typical applications are for finding the meaning of some provision in a will or whether a statement applies to some particular case.'

It appears that common law was against the declaratory orders which never sought a remedy. It became eventually inevitable and ultimately statutory in England by the introduction of the Rules of Court 1883. The Rule states thus:

'No action or proceedings shall be open to objection, on the ground that a merely declaratory Judgment or order is sought thereby and the court may make binding declarations of right whether any consequential relief is or could be claimed or not.'

Although this piece of the rule is more than a century old, it is even today getting more and more recognition by the court and the courts are betting more and more accustomed to using it very freely. A Declaratory Judgment merely states some existing legal situation. It requires no one to do anything and the disregard of it will not open the way for contempt of court. It helps a party to ascertain what his legal position is on a justiciable matter of course and then decide on other remedies should it become necessary. He will then know whether there is a remedy available or not and if so what sort of action is particularised for that particular remedy. Declaratory order is by itself a remedy to a person who does not know where he stands in a certain legal situation and it is only the Court of Law that can come to his help. Being ignorant of the legal position either he will have to remain dormant and lose his right or remedy or file a wrong action for a right which he does not have and waste his money and also time of court. For example a person cannot pursue matters legally based on pension rights, superannuation allowances or claims on European Convention on Human Rights or telephone tapping.

It must be noted that Declaration is a discretionary remedy. The court has the power to prevent its abuse, It will refuse to lend its hand to speculators and busy bodies who based their actions on hypothetical questions or who have no locus standi - Lord Dunedin in Reunion Commercial and Industrial Bank v British Bank for Foreign Trade Co. [1921] 2 A.C. 438 at 448 said that the question must be real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought. There has to be a genuine legal issue between the proper parties. It has to be refused if it is barred by an exclusive statutory remedy available from some specified court or tribunal e.g. an appeal to Commissioner of Inland Revenue or the Lands Tribunal for compensation on compulsory purchase. No declarations are normally granted in interlocutory proceedings as they are not final in nature.

Declarations became an efficient and effective remedy against ultra vires actions by Government authorities of all kinds including the Crown. The land mark case is Dyson v. Attorney-General [1910] UKLawRpKQB 203; [1911] 1 KB 410 and a recent parallel is R v. Customs and Excise Commissioners ex parte Hedges and Butler [1986] 2 All ER 164). Almost at the same time new ground was broken on the issue of declarations in the private sector too affirmatively in the case of Guaranty Trust Company of New York v. Hannay & Co. (supra). In that case Pickford L. JJ and Bankes with Buckley LJ. dissenting held that the court has power to make a declaration at the instance of a plaintiff though he has no cause of action against the defendant and that the rule so construed is merely an extension of the practice and procedure of the court and is not ultra wires. The application in that was under Order 25 r 4 to strike out the claim for the declarations upon the ground that they disclosed no cause of action. It was held to be a valid claim and not to be struck out. Pickford LJ. went on to state that Order 25 r 5 is not confined to cases where the plaintiff has a cause of action apart from the rule; its effort is to give a general power to make a declaration whether there is a cause of action or not at the instance of a party interested in the subject matter of the declaration.

Bankes LJ. read the Judgment in the Court of Appeal. Rule 5 of Order 25 became the focal point of discussion. He held that the real meaning of the rule is to be found in the opening words - actions and proceedings He said thus:-

'It is the person, therefore, who is seeking relief or in whom a right to relief is alleged to exist, whose applications to the court is not to be defeated because he applies merely for a declaratory Judgment or order and whose application for a declaration of his right is not to be refused merely because he cannot establish a legal cause of action. It is essential however, that a person who seeks to take advantage of the rule must be claiming relief

What is meant by the word relief? When once it is established as I think it is established, that relief is not confined to relief in respect of a cause of action it seems to follow that the word itself must be given its fullest meaning. There is however, one limitation which must always be attached to it, that is to say, the relief claimed must be something which it would not be unlawful or unconstitutional or inequitable for the court to grant or contravening to the accepted principles upon which the court exercises its jurisdiction. Subject to this limitation I see nothing to fetter the discretion by the court in exercising a jurisdiction under the rule to grant relief and having regard to general business convenience and the importance of adapting the machinery by the courts to the needs of suitors, I think the rule should receive as liberal a construction as possible. De Smith's Judicial Review of Administrative Action (4th Edition) speaks in the same tone as Wade. The approach to declaratory Judgment is the same as that of Wade. Distinguishing a declaratory Judgment from, other judicial orders he states that it declares the law without pronouncing any sanction directed against the defendant. The question De Smith raises all along is whether or not a judicial sanction is always necessary for a judicial order to be enforced. It is not - he says. Normally if a court's Judgment is executory, any disobedience to the court order will be followed with a coercive action - may be contempt or ejectment from the premises or seizure of the property. De Smith seems to be of the view that coercion is neither necessary nor desirable for legal disputes to be settled. He is conscious of the fact that no coercive action can proceed against the organs of the state. That leaves enough elasticity to stretch it out to the private individual involved in a legal dispute.

In my view declarations of any sort which have the effect of res judicata can become the order of the day in the twentieth century without any decree for consequential relief. It can resolve dubious legal problems without changing the status quo where no one has wronged and no one has been wronged. A public authority may be as ignorant of a legal dispute or of an interpretation of a Section of the law as a private individual of his right or liability. They both may need Judicial help and recognition to solve it with no decree of a sanction. De Smith is not hesitant in saying that this twentieth century concept of law without force foreshadows another medium of social control. During the present century an action for a declaration has become one of the most popular forms of proceedings in the High Court. It has completely revolutionised the English remedial law. Proceedings under Order 25 r 5 (now Order 15 r 16) were freely flowing after the Dyson case. Smith states that the virtues of the action for a declaration in a society in which commercial relationships multifarious and regulatory powers over the citizens are ubiquitous have been fully recognised by Judges as well as by practitioners (Page 481 - 4th Edition).

Lord Atkin described it as -

'one of the most valuable contributions that the courts have made to the commercial life of the country.'

in Spettabile Consorzio Venezuano di Armananto v Northumberland Shin Building Co. (1919) 121 LT 628. Viscount Kilmer emphasised its utility as a means of protecting the rights of workers against the unlawful imposition of disciplinary sanctions by public corporations and trade unions (1957) 73 LQR 172 & 174. They became so popular for reasons such as the freedom from restrictive technicalities; mobility, flexibility, absence of acerbity and acrimony and the wide discretion of the Judge to grant them. The Court can grant a declaration in lieu of an injunction if it is of the opinion that the award of a coercive decree would be inapplicable in the circumstances of the case St Mary's Islington Vestry v Hornsey U.D.C. [1900] UKLawRpCh 59; [1900] 1 Ch. 695 (injunction would cause hardship). It has even awarded a declaration in favour of a plaintiff who has unsuccessfully sued for damages in tort and who has not asked for declaratory relief London v Ryder (No. 2) [1953] Ch. 423.

Action for slander of title dismissed for failure to prove malice but declaration was awarded to the plaintiff that the Defendant had no right or title to the property in issue.

In 1958 Lord Denning in Pyx Granite Co. v Ministry of Housing and Local Government (1958) 1 QB at 571 has pronounced thus:-

'if a substantial question exists which one person has a real interest to raise and the other to oppose, then the court has a discretion to resolve it by declaration which it will exercise if there is good reason for so doing.'

The governing rule for the making of declaratory orders is contained in Order 15 r 16 of the High Court Rules 1988. This rule is worded in similar fashion in the Supreme Court Practice 1985 being copied verbatim from the former Order 25 r 5 made in 1883. The rule has to be read in conjunction with Order 5 r 4 as demonstrating that an action for a declaration can be begun either by writ or by originating summons. Before 1883 the Common Law Courts did not have Jurisdiction to make declaratory Judgments regarding existing or future rights whereas the Chancery courts could made binding declarations provided a right to relief was there in the action which the court could ultimately grant. In other words a bare declaration with no relief claimed was an impossibility. In 1883 Order 25 r 5 made a drastic innovation to the issue of declaratory Judgments. It empowered courts to make declaratory Judgments of rights whether or not a consequentive relief was claimed or could be claimed. This innovation did certainly enlarge the powers of the Chancery Court. In 1915 in the celebrated case of Guaranty Trust Co. (supra) the validity of Order 25 r 5 was assailed but it confirmed the proposition that an action can be pursued even without a cause of action which is normally the case. That paved the way for a declaratory Judgment to ascertain and determine rights of parties or for the determination of a point of law. The considerable impetus and importance given to it as a procedural device is significant. As was remarked earlier, declaratory Judgments are based on the discretion of the court and it will not generally decide academical or hypothetical questions. Every action of a future right cannot be branded hypothetical. It is only hypothetical when an action is pursued in the abstract sense with no foundation of any sort. The remedy of a declaration is wide and forcible. Yet it will not permit a person to file an action for a claim which is indirect and insubstantial and which will not give him 'relief' in any real sense i.e. relieve him from any liability, disadvantage or difficulty. A declaration can be granted when there is a breach of an agreement or a threat or intention to commit a breach of an agreement. It must serve a useful purpose. It will refuse if the declaration is unnecessary or embarrassing. Especially when there is no relief claimed in the action, the court will be extra careful and cautious in granting declarations.

It is now apposite to observe and analyse the collective agreement of the employees and the Recruitment Policy of the defendant to spot the areas of conflict and or disagreement. It is also of importance to know whether any such conflict or agreement is justiciable in courts and if it is so the courts can give the relief sought. Mr. Patel emphasised the fact of a conflict and disagreement between the two documents. I have carefully gone through the agreement to find that it is dealing- with thirty seven heads such as leave consultation, contract of employment, disciplinary procedure, grievance procedure, hours of work, leave, medical examination, overtime, postings, redundancy, retirement, uniforms, union recognition and vacancies to mention a few of the many. The heads under which it is dealt with undoubtedly manifest a very comprehensive document touching every conceivable aspect towards achieving harmony and equality and fairness in a workplace for the mutual benefit of the employer and employees.

The Recruitment Policy on the other hand speaks of the selection of the best qualified persons regardless of race, sex and origin; preferential treatment for the indigenous race if there happens to be equal attributes between candidates of other races. This Recruitment Policy had been drawn up as recently as 1990 whereas the collective agreement had been drawn up in 1980 -10 years before. It is rather striking to note that it (agreement) had gone through a period of ten years to prove its stability and acceptability to both sides. It had stood the test of time.

Clause 3 of the agreement states as follows:

This Agreement is made and entered into this One thousand nine hundred and eighty one by and between Air Pacific Limited, or any successor or assigns thereto, hereinafter referred to as the 'Company' and Air Pacific Employees Association, a trade union registered under the Trade Union Ordinance, or any successor or assigns thereto similarly registered hereinafter referred to as the Association.'

Page 1 of the Policy Statement states as follows:

'Enclosed for incorporation into your CPPM is the NEW 8-page Recruitment Policy duly approved by the Executive Committee.'

These two statements in the two documents indicate the difference in the birth origins - one bilaterally and the other unilaterally in a vast work place - a national venture.

As I see in the Policy Statement the executive committee had approved of it. The agreement had been drawn up between Air Pacific Limited or any successor or anyone and Air Pacific Employees Association. They had put their heads together to evolve the agreement for the mutual good and well-being.

Clause 4 of the Agreement is of special significance. Commencement and duration of agreement -

'Except as herein provided, this Agreement shall operate on and from the 24th August 1981 until 23rd August 1982 and until replaced by another Agreement, provided that leave is reserved to either party to re-open any clause excluding wages and salaries during the currency of the Agreement solely for the purpose of resolving any problems arising therefrom in respect of interpretation or application, but not in respect of the amount of any benefit therein specified.'

This clause indicates that both parties had resolved that until the agreement is replaced by another agreement, is to operate with a reservation to reopen any clause to solve a problem. (emphasis is mine)

It is natural to ask or seek a reason for the establishment of a Recruitment Policy when there was no problem arising out of the agreement. Even if there was one, still both sides could have come together to determine it. What was the necessity to determine factors which they consider are for the benefit of one race unilaterally. It does not show its bona fides. It is also natural and pragmatic to ask the question whether the collective agreement cannot give all the benefits contemplated in the Recruitment Policy. If it is not possible to do so, that means there are differences. If there are material differences there should be prior consultation to make it (Recruitment) effective or viable. If not, it becomes a one sided evolution not without bias and discrimination. The Union is recognised by the Company. Therefore, in my view, consultation is a condition precedent to any Changes to the agreement.

Clause 3 relates to grievance procedure. The aim of the grievance procedure is plainly to preserve harmony and good relations between the employer and its employees. It is well and good. The Association had tried to hold meetings with the Defendant to prevent the implementation of the Recruitment Policy but failed. That failure on the part of the Association opened the way clear to come to court for 'relief'. They have done so. It is correct and proper. Where else can they go? Are they to grin and bear or must they seek a clarification of the situation.

As I see there is no head by the term - Recruitment Policy in the Agreement. The Company has taken advantage of the missing head to veil the benefits of the agreement. When one goes to the very depth of the Policy, it is not difficult to notice the racial discrimination with a racial advantage to one race or another. That is not fair and equitable within a constitution established to promote racial harmony. Clauses in any agreement must not be allowed to damage the harmonious racial foundation of a nation. No person of a particular ethnic group can be allowed to be victims under the present constitutional frame. There is no room for discrimination. Gele v El Vino Co. Ltd. (1982), 126 SJ.769 CA described that the court will grant a declaration that a specified practice, rule or conduct on the part of the defendant constitutes unlawful discrimination against a woman under the Sex Discrimination Act 1975.

The decision in Mandla and another v Dowell Lee & Others [1982] UKHL 7; [1983] 2 WLR 620 held that there was discrimination against the plaintiffs (turban issue) under the Race Relations Act 1976 by not admitting the child to school. Factually the two cases I have cited do not fit into the present case in hand one hundred percent but the principle involved is the same in all. That is what I am emphasising. Another argument forcefully put forward by Mr. Sweetman is that the Collective Agreement deals with the future prospects of the present employees whereas the Recruitment Policy deals with future employees and their prospects. He goes on further to submit that declarations are not meant to deal with future problems and situations which come under the general term hypothetical. I can hardly agree with him on this argument. Declarations do deal with futuristic situations to such an extent so as even to deal with the rights in a limited way, of course, of even unborn children. Declaratory Judgments are thus a sure way to reduce the litigious future to a minimum.

All what I have set down in the Judgment more than convinces me that there is a tinge of discrimination on a racial basis. The new Recruitment Policy has the capacity to undermine in a subtle way the conditions of the agreement. It may be considered a dent on it making it ineffective. It is enmeshed in words forming an intention to manifest a penetrating ray of racial discrimination.

I cannot therefore resist concluding that it is so. I give Judgment for the Plaintiff in Prayer 1 & 2 and also costs taxed if not agreed.

(Judgment for the Plaintiff.)