State v Permanent Arbitrator, ex parte Fiji Electricity Authority [1997] FJLawRp 20; [1997] 43 FLR 123 (12 June 1997)

[1997] 43 FLR 123

HIGH COURT OF FIJI ISLANDS

THE STATE

v

THE PERMANENT ARBITRATOR

ex-parte

FIJI ELECTRICITY AUTHORITY

[HIGH COURT, 1997 (Fatiaki J) 12 June]

Revisional Jurisdiction

Judicial review- procedure- requirement for particularity in Form 32 Statement- necessity for adequately detailed supporting evidence- High Court Rules 1988 O 53 r 3 (2).

In the course of dismissing an application for leave to move for judicial review the High Court stressed the importance of pleading grounds for review with adequate particularity and the need for the supporting affidavit to contain sufficient detail so as to enable the Court to determine whether the applicant had presented a prima facie case.

Case cited:

[1981] UKHL 2; [1982] A.C. 617Application for leave to move for judicial w.
A. Patel for the caplicant<
S. Kumar for the Permanent Arbitrar>r
V. Naidu;and J.&#1i> for ther the Union
160;<160;
Fatiaki J:

This is an opposed aptiication for lea issuicial review proceedings against an Award No. 12 . 12 of 1996 of the Permanent Arbitrator dtor delivered on the 11th of October 1996.
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It concerns a trade dispute between the Fiji Electricitricity and Allied Workers Union (‘the Union’) and the Fiji Electricity Authority (‘the Authority’) which had been referred for settlement, by the Permanent Secretary for Labour and Industrial Relations (‘the Permanent Secretary’) acting pursuant to Section 5A subsection 5(a) of the Trade Disputes Act (Amendment) Decree No. 27 of 1992 (‘The Decree’).

It is undispuhat the trhe trade dispute arose over the dismissal of nine apprentices who had completed their five year contracts of apprenticeship with the Authority. It is common ground that the successful completion of the contracntracts of apprenticeship occurred at different times and termination by the Authority occurred several months after such completion. Furthermore although none of the apprentices were permanent employees of the Authority, all were members of the Union at all relevant times.

The disput primarily coly concerned with the status of the apprentices during the period between the successful completion of their respective contracts of apprenticeshiptheir termination by the Authority. The periods with which hich the Permanent Arbitrator was concerned with were : slightly over 3 months in the case of 1 apprentice ; over 5 months in the case of another apprentice ; and over 7 months for the remaining seven apprentices.

The ter reference by thby the Permanent Secretary generally :

8220;... (referred) thd) the said trade dispute to the Permanent Arbitrator over the employer’s action to terminate (the) employment of Union members who uccessfully served their apprenticeship contract and had bead been in employment beyond their 3 months probationary period for settlement.”

At theing of the refereeference the Permanent Arbitrator received preliminary submissions from the Union and the Authority and thereafter evidence was produced by the parties and comprehensive final submissions were provided.

The Authority’s position is conveniently summarised in the following paragraph taken from p.3 of the Permanent Arbitrator’s decision which reads :

“The Authorasy has adopted the position that the provision relating to apprentices ... allowed an apprentice’s term of employment to continue while the Authority came to a decision. There was no mary obligation on the Authoruthority to provide permanent employment. Further there was a discretion as to whether to upgrade and absorb (“it will consider”) apprentices as permanent employees. Clause 12 had to be interpreted in the light of an apprentice’s contract coming to an end and the subsequent contract conferring permanent employee status then taking effect upon the Authority exercising its discretion to offer an apprentice a permanent position.”

The Union on the other hand contended in its final written submission :

&#... that the term termination of employees was unfair, and , and that they be reinstated as tradesman with full wages and benefits.”
This pos which is h is ostensibly bon custom and practice over over many years, is somewhat akin to confirmed permanent employment upon successful completion of contracapprenticeship.

In a cloreasoned 8-page-page dage decision delivered by the Permanent Arbitrator he ruled :

0;that the Authorithority’s decision to terminate the employment of union members who had successfully served their apprenhip contract and the three month probationary period under the parties collective agreementement was contrary to its terms and the said members are to be compensated at tradesman’s rates with effect from the respective dates on which the said probationary period expired (as calculated from the formal completion of their respective apprenticeships) to the date of this award but there will be no order for reinstatements.”

In iplication for leaveleave to issue judicial review the Authority has advanced no less than six grounds on which it claims the Permanent Arbitrator erred. These are :

“(a);ټ&160; t60; the learnedt respondepondent acted ultra vires the provisions of the Trades Disputes Act.
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(c) &<; t60 leae learned rned rned firstfirst resp respondent took irrelevant matters into account when exercising his discretion.

(d0; thened first respondent dint did not take relevant matters into account when exercising his discretion.

< the ed fnrst ndent7;s swar sward was made beyond hond his juis jurisdirisdiction.

(f) ـ &##60;& t60; that there is e is an error of law e facthe r.”

I musI must cont confess fess that in the absence of particulars or any details in the supporting affidavit, the grounds as drafted, are of little or no assce in directing the Court’s attention to any prima facie vitiating error that may havy have occurred either in the course of the hearing of the reference or in the actual award of the Permanent Arbitrator.

It mvery well be that ahat all of the grounds advanced are recognised as good and sufficient grounds to warrant the grant of a prerogative writ, but that alone is nson to indiscriminately advance them all in an application tion for judicial review, unless of course, they are clearly evidenced in the supporting affidavit demonstrated by c by counsel’s submissions. This form of pleading (for want of a better expression) which is fast becoming the norm in applications for judicial review is unacceptable, unhelpful and often duplicitour instance, what is the dife difference (if any) between grounds (a), (b) & (e) ? or between grounds (b) & (d)?, and what ‘irrelevant matters’ did the Permanent Arbitrator take into account?

Indeen the application tion for leave was argued before me in chambers, counsel for the applicant, without referring specifically to any of the above grounds, merelyed that the Permanent Arbitrator’s award contained aned an illegality and was also irrational in a ‘Wednesbury’ sense. The error of law was said to arise in the Permanent Arbitrator’s reference to other general clauses in interpreting Clause 12 of the Collective Agreement.

In R. C ex parte Nat. Fed. Fed. of Self-Employed and Small Business Ltd [1981] UKHL 2; [1982] A.C. 617, Lord Diplock said at p.642, 643 :

0;The need for leav leave to start proceedings isnew .s purpose is to p to prevenrevent the time of the court being wasted ... with misguided or trivial complaints of administrative error, andemove the uncertainty in whin which public officers and authorities might be left as to whether they could safely proceed with administrative action while proceedings for judicial review of it were actually pending even though misconceived.”

is regard Order 54 r.3( r.3(5) of the High Court Rules requires the Court in exercising its discretion at this threshold stage tect its mind “(to) ... the materials then available (to see whether) it discloses whas what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed”. (ibid at p.644)

This sarily implies a cs a corresponding duty on counsel not only to draft their grounds with particularity out also, to ensure that is some supporting affidavit evidence to enable the Court to form on the papers, a prima fima facie view favourable to the applicant seeking leave. Needless to say in the absence of such materials the Court is constrained to order an inter partes hearing of the application for leave as occurred in this case.

H regard to the above iove it is not at all surprising that the application for leave was vigorously opposed by counsel for the Permanent Arbitrator as well as the Union. More particularly Statnsel submitted that the appe application raised no arguable case for a judicial review and was a disguised appeal against a decision which, in terms of Section 5A subsection 5(b) of the Decree, “... shall be binding on the parties to the dispute”.

As for the so-called16;8216;error of law’, State Counsel submitted that the Permanent Arbitrator’s terms of reference required him to examine more than just Clause 12 of the Collective Agreement insofar as the reference to a probationary period necessarily entailed an examination of Clause 6(c). Furthermore Clause 12 itself contained a lacuna insofar as there is no time-frame provided, within which the Authority is obliged to ‘consider upgrading and absorbing (qualified apprentices) as permanent employees’.

How then, counsel fullyfully argues, can it be said that the Permanent Arbitrator’s fixing of a limitation period within which the Authority must make a decision to permanently employ or terminate its qual apprentices, is either illr illegal, irrational or unreasonable ? and how can the adoption of 3 months which is the length of the probationary period provided for in Clause 6(c) of the Collective Agreement, be considered either arbitrary, irrelevant, or ultra vires?

Furthermore ermanent Arnt Arbitrator has himself provided reasons in his decision for filling the lacuna and for his choice of 3 months, where he writes at p.4 :

<220;The Tribunal has has some doubts about the Authority’s approach. It confers all the advantages on the Authority and makes little attempt to harmonise both the provisions of the appreship contract with the cole collective agreement and provisions within the collective agreement itself.”

later athe states :
:

&#8urthermore the Athe Authority omitted to explain the relationship between Clause 6(c) and C 12. The latter makes reference to the Authority giving consideration to upgrading and abso absorbing them (i.e. qualified apprentices) as permanent employees. If one were to give effect to Clause 6(c) on the basis that the apprentices were now fully qualified, the three months probationary period provided the time in which the Authority had to decide on their future. This would be sufficient response to the Authority’s assertion that the time it had under Clause 12 was open-ended.”

Then finand again at p.at p.5 the Permanent Arbitrator states :

8220;The apprenticeshiceship contract and the terms of the ctive agreement co-exist quite happily, if the probationary period under the latter (i.e. t.e. the 3 months) is treated as the time tthority has in which to mako make up its mind over the apprentices fate. Otherwise it becomes an open-ended arrangement which favours the Authority and allows it to dispense with the apprentices at its own convenience. An unacceptable situation because the Authority would have had the benefit of the apprentices expertise at a fraction of the cost ... The advantage of this interpretation is that it allows effect to be given to that part of Clause 12 which confers discretion (and by implication time) upon the Authority to make a decision.”

For his part counsr ther the applicant could only state in reply, that the Permanent Arbitrator’s award had the effect of imposing remuneration rates payable to permanent employees in circumstances where uthority had under Clause 1use 12 of the Collective Agreement, no obligation to provide permanent employment to the employees concerned.

But as the learermanentanent Arbitrator said at p.7 of his decision :

8220;The simple answernswer to that is that some sense has to be made of the situation where the apprenticeship contract persists by implication, a probationaryod (of 3 months) now applies and the Authority has some time time in which to determine if the apprentices are to be given permanent employment. This last aspect adequately explains why it is appropriate the apprentices were to be paid at that level for those three months.”

For the foregoing reasons the application for leave to issue an application for judicial review against the Permanent Arbitrator’s Award No. 12 of 1996 is refused with costs to be taxed if not agreed.