In re Lees Trading Company Limited v Permanent Secretary of Labour [1977] FJSC 142; Civil Action 97 of 1977 (10 June 1977)

IN THE SUPREME COURT OF FIJI
(WESTERN DIVISION)
AT LAUTOKA

Civil Jurisdiction
Action No. 97 of 1977

IN THE MATTER OF TRADE UNIONS (RECOGNITION) ACT.
NO. 17 OF 1976

BETWEEN

AND IN THE MATTER OF LEES TRADING COMPANY LIMITED
a duly incorporated company having its registered office at Lautoka
and carrying on business in Lautoka and else where.
Plaintiff

AND

THE PERMANENT SECRETARY OF LABOUR
1st Defendant

AND

THE ATTORNEY-GENERAL
of Her Majesty's Government of Fiji
2nd Defendant

Dr. M.S. Sahu Khan for the Plaintiff
Mr. S. Matawalu for the Defendants

JUDGMENT

This is an originating summons in which the plaintiff Lees Trading Company Limited is suing the Permanent Secretary of Labour and also the Attorney-General of Fiji asking for certain declarations respecting section 6 of the Trade Unions (Recognition) Act 1976. That act came into force on 1st September 1976. It appears that the plaintiff company employed some 100 workers of whom 85 said they were members of the National Union of Factory and. Commercial Workers. It appears that on 24th February 1977 the trade union above-named applied to the plaintiff for recognition under the Act but were asked to await the return of the managing director Lee Wah Yip and his son Allen Lee who is the general manager of the company, both of whom were out of Fiji. The plaintiff says that the trade union did not wait, but on the other hand, it was not until 22nd March 1977 that the Permanent Secretary of Labour made an order under section 3 of the Act. Therein he ordered that the trade union was to be accorded recognition for the purposes of collective bargaining predating the recognition from 22nd February 1977. In these proceedings no objection is taken to the propriety of that order. The plaintiff, however, on 28th March advised the Permanent Secretary that it intended to withdraw recognition of the trade union and asked the Permanent Secretary to determine that as at 28th March 1977 the average number of persons in the company's employment who were voting members of the trade union which had been recognised was less than fifty percent of the persons in the company's employment who were entitled to membership of the trade union. The Permanent Secretary declined stating that he was unable to accede to the company’s application until at least six months from the date of recognition of the trade union on 22nd February.

The question turns upon the interpretation of section 7 of the Trade Unions (Recognition) Act 1976. That act was apparently passed to further a policy of collective bargaining between employers and employees represented by trade unions, and the machinery sections of the Act are set out in Part II which provides for the recognition of trade unions by employers, either by voluntary agreement or by order of the Permanent Secretary for Labour. The effect of recognition of a trade union is dealt with in Part III of the Act and is that an employer can then be required to deduct from the wages of employees who are members of the trade union such amounts towards trade union dues as the trade union may specify, and if an employer omits to make such deductions an offence is committed.

Before dealing with section 7 it is perhaps desirable to mention other sections of Part II of the Act. Section 3 deals with recognition of a trade union where there is no rival trade union competing for recognition, and provides that where trade union has more than 50% of the employees of an employer, it can ask for recognition, and if the employer refuses recognition application can then be made to the Permanent Secretary for Labour, who is empowered to make an order for compulsory recognition. I pause here to observe that such an order was made in this case on 22nd March 1977. Sections 4, 5 and 6 deal with what happens when a rival trade union appears on the scene. Section 8 would appear to be in the same terms as section 3(2) and section 6, and enables the Permanent Secretary to make a. decision on recognition if there is dispute between the employer and the trade union, and section 9 provides that if the Permanent Secretary refuses to make a recognition order at the behest of a trade union, recognition must be deferred for six months. Section 10 provides for the exclusion of certain types of employees from a recognition order, and section 11 provides for penalties resulting from non-compliance with a recognition order or an agreement. I return then to section 7 the relevant provisions of which are as follows:

“7. A trade union which has become entitled to recognition by an employer under the provisions of section 3 or section 5 of this Act shall continue to be so entitled until such time as the Permanent Secretary on an application by the employer, determines that over a period of six months ending not more than two months before the date of application, the average number of persons in his employment who were voting members of the recognised trade union was less than fifty percent, of the average number of persons who were eligible for membership thereof, in which case from the date of the Permanent Secretary so determining the trade union in question shall cease to be entitled to recognition:"

The Plaintiff wants the recognition order ended, and as I understand Dr. Sahu Khan, it says that if the Permanent Secretary goes back for six months over the lists of those eligible to join the trade union and those actually joining the numbers of persons who were voting members of the trade union will be found to be less than fifty percent of those eligible to join. The Permanent Secretary on the other hand takes the view that he does not have to deal with the matter at all until at least six months have elapsed from the date when the recognition order became effective, viz. 22nd February and when the plaintiff applied to him to end the recognition order he refused to do so and invited the plaintiff to apply anew after 22nd August 1977. Mr. Matawalu of counsel for the Permanent Secretary put forward a third answer, namely that the Permanent Secretary was entitled, having received an application to end to recognition order, to simply defer it for six months. I have no hesitation in rejecting Mr. Matawalu's suggestion. I can see nothing whatever in the section to indicate that that is the true construction. I come back to the competing interpretations of the plaintiff and the Permanent Secretary. I begin by drawing attention to something, which although it does not appear to affect the matter to be now decided, is unhelpful in seeking a construction of the section. I refer to the two senses in which the words ‘determine' and 'determination' are used. In the marginal note, and there is no need for me to decide whether or not the marginal or side note forms part of the section, the words 'determination of recognition' appear to mean 'ending of recognition'. On the other hand, the words 'determines' in the seventh line and 'determining' in the sixteenth line appear to be used to mean 'decides' and 'deciding'. Next it seems to me that the Permanent Secretary, when he receives an application to end recognition, is obliged to look at the position over a period of six months.

That can only be for a period prior to the date in which he receives the application to end recognition. But that, it would seem is not all. The applicant is entitled to ask the Permanent Secretary to go back a further two months. So that in this case the plaintiff would have been entitled to ask the Permanent Secretary to go back for six months before 28th January 1977 to find out whether the average number of person in the plaintiff's employment who were voting members of the trade union over that period was less than fifty per cent of the average number of persons in the plaintiff’s employment who were eligible for membership of the trade union.

I accept Dr. Sahu Khan's submission that the object of interpretation of a statute is to discover the intention of the legislature as expressed in the statute. He submits that nowhere in the statute can be found an intention that the employer must accept a recognition order for six months before he can attempt to have it set aside. Mr.Matawalu refers me to Maxwell on the Interpretation of Statutes and particularly to the 'mischief rule' as set forth in Heydone case in 1584 and applied in many cases since, and he submits that the reason for the six month period is to enable the Permanent Secretary to look at the position for six months, and he further suggested that any other interpretation would defeat the purpose of the Act. I am afraid that I am quite unable to follow that. I adapt the rule laid down by Parke B Becks v Smith [1836] EngR 22; (1836) 2 M&W 191, 150 E. R. 724, 726:

“It is a very useful rule in the construction of a statute to adhere to the ordinary meaning of the words used, and to the grammatical construction, unless that is at variance with the intention of the legislature, to be collected from the statute itself, or leads to any manifest absurdity or repugnance in which case the language may be varied or modified, so as to avoid such inconvenience but no further".

Almost the same words were used by Lord Birkenhead in delivering the opinion of the Committee for Privileges in the House of Lords in Visccuntess Rhondda's Claim (1922) 2 A.C. 339, 365, and in Magor & St. Mellens v Newport Corporation (1951) 2 A. E. R. 839, 841, Viscount Simonds L. C. in effect rejects the view which Mr. Matawalu sought to impress upon me. He said:

"It is sufficient to say that the general proposition that it is the duty of the Court to find out the intention of Parliament- and not only of Parliament but of Ministers also – cannot by any means be supported .The duty of the Court is to interpret the words that the legislature has used.”

Here I think that the ordinary meaning of the words used is to enable the Permanent Secretary to strike an average in numbers which might fluctuate from day to day, both as regards employees who were eligible to become members of a trade union. I confess, however, that the reason why the period of calculation should start two months before the employer’s application is made, escapes me entirely. Perhaps it is not relevant in this application, because the employer in his letter to the Permanent Secretary has itself asked that the period for calculation should end at 25th March 1977. It does not therefore seek to take advantage of the longer period allowed by the statute It is, however, relevant to say that the period from which the six months is to be calculated would appear to be fixed by the employer and not by the Permanent Secretary. I can see no reasons to depart from the ordinary meaning of the words used as I have endeavoured to set it forth. Nor can I see that by so construing the section I am in any way defeating the purpose of the legislature. In short I can see nothing in the section to permit the Permanent Secretary to defer the Plaintiff’s application or reject it on the ground that it cannot be made for six months from the effective date of recognition of the trade union. It is true that section 9 prescribes that if the Permanent secretary refuses to make a compulsory recognition order, the trade union is not to be entitled to recognition by that employer for six months from the date of refusal. But that is very far from saying that an employer cannot apply for six months from the making of a recognition order to have it removed. There may well be perhaps, good sense in that omission, for circumstances of employment and registration often change from day to day. The Permanent Secretary filed no affidavit so the Court was left in ignorance of the mischief which might ensue if the ordinary interpretation were adopted, nor was Mr. Matawalu able to enlighten me, save to suggest that there may have been a sudden influx of employees of the plaintiff company into the trade union. I would have thought that might have been a very good reason why the Permanent Secretary should not have been rushed into the making of an order. But this is mere speculation.

Be that as it may, I think that the plaintiff has made out its case and is entitled to some relief from this court. I am not prepared to make all the declarations that it seeks. In the first place I am not prepared to set out to give a true interpretation of section 7 of the Act. The plaintiff is entitled to a declaration that under section 7 of the Trade Unions (Recognition) Act 1976 it is entitled at any time after the effective date of recognition of the National Union of Factory and commercial Workers to make an application to the Permanent Secretary to end that recognition. I do not think it is necessary to declare that the Permanent Secretary shall consider the plaintiff’s application. I am sure that he will. Since I am asked to make a declaration as to time I will declare that the period of six months referred to in the Act shall in this case end at 28th March 1977, the date for which the plaintiff asked in its letter of that date. The plaintiff has succeeded substantially in its application and is entitled to its costs.

(SGD) K.A. STUART
JUDGE

LAUTOKA,
10th June, 1977