In re Fiji Waterside Workers and Seamen's Union [1978] FJSC 21; Civil Appeal 001 of 1978 (15 March 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CIVIL APPEAL NO. 1 OF 1978

IN THE MATTER OF THE TRADE UNIONS ACT CAP. 80
PART III SECTION

And

IN THE MATTER OF AN APPEAL BY FIJI WATERSIDE WORKERS
& SEAMEN'S UNION FROM A DECISION OF THE
REGISTRAR OF TRADE UNIONS

JUDGMENT

This is an appeal under section 16 of the Trade Unions Act from the decision of the Registrar of Trade Unions made on the 12th December, 1977 cancelling the registration of the Waterside Workers and Seamen's Union (hereinafter referred to as "the Union").

There are three grounds of appeal:

"1. That due to the fact that (1) Books of accounts of the said Union had been seized by the Police and (2) Because of a Prosecution under the Trade Disputes Act against the executive of the said Union and (3) the Hearing of Arbitration proceedings made it impossible for the Union to comply with the Request of Registrar of Trade Union dated the 22nd day of July, 1977 to supply detailed accounts in respect of the period covering the 1st day of June, 1976 to the 20th day of July, 1977.

2. That the Registrar of Trade Unions was biased in cancelling the registration of the Appellant Union.
   
3. That the Registrar and/or the Advisory Committee did not give a hearing to the Appellant Union before cancelling the registration hence there has been a breach of natural justice."
   

After the Registrar of Trade Unions gave evidence Mr. Parmanandam counsel for the Union abandoned the second ground of appeal.

An affidavit was filed in support of the appeal sworn by Manueli Vasea who at all relevant times, until the registration of the Union was cancelled, was the treasurer of the Union. An affidavit in reply was filed by Mr. D.F. Godfrey, the Registrar of Trade Unions. An opportunity was given to both parties to call witnesses to give evidence in respect of matters which the affidavits indicated were in dispute. Both Mr. Vasea and Mr. Godfrey were called as witnesses and gave evidence. The Union also called Apisai Vere the secretary of the Union before it was deregistered. His evidence related entirely to the second ground of appeal which was abandoned.

Mr. Godfrey's affidavit discloses in some detail the events leading up to the cancellation of the Union's registration.

The Union's financial statement for year ending the 31st December 1976 was lodged with the Registrar on the 9th May, 1977 although it should have been lodged by the 30th April, 1977. The secretary of the Union in his affidavit stated the financial statement was submitted to the Registrar by the 30th April, 1977 as required by law. This was a false statement which in evidence given to the Court the secretary admitted was an error on his part.

On the 14th June 1977 the Registrar wrote to the secretary of the Union requesting details of certain items of expenditure.

The financial statement for 1976 disclosed a total income of $106,363 and expenditure of $94,353. Under section 50(2) of the Trade Unions Act the only purposes for which union funds may be utilised are specified. The Registrar requested information on five matters:

1. Benefits paid to members $13,795;

2. Salaries and wages;

3. Travelling $15,423;

4. Allowances office bearers $14,486;

5. General and office expenses $6,778.

No written or verbal reply was received by the Registrar to his letter.

On the 22nd July, 1977 the Registrar pursuant to section 57(1) of the Act wrote to the treasurer of the Union specifying the detailed accounts he required and the manner in which they were to be vouched.

To this letter the treasurer replied on the 27th July, 1977 requesting an extension of time to provide the information required. Mr. Godfrey replied to this letter on the same day pointing out that the period of seven days within which to comply with his request was the period stipulated in the Act (Section 57(1)). On the 5th August, 1977, when the treasurer had not complied with the Registrar's request, he wrote to the secretary of the Union informing him that in exercise of the powers conferred on the Registrar by section 55(2) of the Act the Registrar would call at the secretary's office at 8.30 a.m. on Monday 8th August, 1977 to inspect the minutes relating to financial matters and other documents which the Registrar specified in his letter.

When the Registrar attended at the Union's office at the time and date specified in his letter none of the officers of the Union were present and the books and accounts were not made available to him.

On the 9th August, 1977 the Registrar wrote to the treasurer warning him of the consequences of non-compliance with the Trade Unions Act. This letter warned the treasurer that if he was unable within seven days to satisfy the Registrar upon the matters requested in correspondence the Registrar would have no alternative but to give notice of his intention to suspend registration of the Union. A similar letter had been sent to the secretary the previous day.

The letter of the 9th August, 1977 brought a response. On the 16th August, 1977 the treasurer called to see the Registrar. At this meeting the Registrar recorded a statement taken from the treasurer which was read back to him and which he also read and which he signed.

The existence of this statement appears to have surprised Mr. Parmanandam. Because Mr. Godfrey's affidavit was only filed shortly before the date originally fixed for hearing the appeal I granted an adjournment to allow Mr. Parmanandam to consult the treasurer who on that day was said to be away from Viti Levu.

At the hearing the treasurer contended he had been forced to make and sign the statement by a threat from the Registrar to prosecute him if he did not sign. I am satisfied from hearing the treasurer and Mr. Godfrey that the treasurer's story of threats and compulsion is a fabrication. Mr. Godfrey made no threats and I am satisfied that the treasurer's statement was voluntary and factual.

I set out in full the statement made by the treasurer because it discloses how the Union was managed.

"Manueli Vasea stated:-

I do not maintain a cash book. This is written up at the end of the year by me, the Secretary and the Auditors. I do not normally have the cheque book. It is not normally in my custody but in that of the Secretary, Mr. Apisai Vere. He makes the cheques out and I cosign them. They are written out before I sign them. The vouchers are signed by the recipient - I don't see all the vouchers. I saw some of the vouchers. I don't have all the vouchers for this year. If receipts are obtained there are no vouchers. If there are not vouchers we have got the receipts there, and then vouchers are made at the end of the year to attach to the receipts.

My responsibility as Treasurer was changed at a Committee meeting in 1975. The Secretary has the cheque book and the receipts. Sometimes I receive the receipts from him, and sometimes he keeps them. He has got some relating to January - July 1977. I think he has some relating to 1976. Mine were taken by the Police.

There are no committee approvals of expenditure, because this was all set down in a guideline. This was minuted in a Committee Meeting in 1975, amended in 1976.

I saw the accountants whilst the court case was on.

I can be sacked at any time by the Union. I am paid $60 per week. The men will only listen to Veitata, and any objections made to payments would be ignored. Whatever Veitata and Apisai Vere wants will be paid.

As regards the bank statements some are with the Police, some are with me, and some are with Vere. I think there is $3,000 in the Bank at the present time.

There was a general meeting today 16th August, 1977. The men asked that asked that a petition be sent to the Registrar of Trade Union to stop any further action."

The statement discloses also that there was non-compliance with the Trade Unions (Accounts) Regulations. Although the treasurer had held office since 1975 and was paid $60 a week he admitted he was not aware of the Regulations and no one had drawn his attention to them.

On the 9th August, 1977 the Registrar had referred the matter to the Trade Unions Advisory Committee which recommended that the Registrar give the Union one month's notice of intention to suspend its registration pursuant to section 14(3) of the Act. This notice was advertised in the Fiji Royal Gazette on the 19th August, 1977 and on the same day it was served on the treasurer. The President of the Union was served with the notice on the 25th August, 1977.

The Union did nothing until the 19th September, 1977 when a letter incorrectly dated 19th October, 1977 from the treasurer was received requesting an extension of three days. This request the Registrar refused.

The treasurer's letter stated that the reason for the extension was because the Police had seized the Union's books and documents. He referred also to the fact that the Union's auditors had obtained some details from the police but not all details required.

It is pertinent to refer to the auditors, Messrs. Peat, Marwick, Mitchell and Company's letter to the treasurer dated the 20th September, 1977. In this letter the auditors stated:

"Our examination of the record produced to us revealed that there are insufficient records to enable us to compile the accounts for 6 months ended 30th June 1977".

We refer to our Mr. Sam Prasad's discussions with you on 25th August, 1977 and several telephone conversations since then we have received no co-operation from you."

This letter clearly indicates that not only was the treasurer unco-operative with the Union's auditors but also that the financial records of the Union were not in a state from which the auditors could compile accounts.

On the 20th September, 1977 acting on the advice of the Trade Union's Advisory Committee the Registrar made an order suspending the registration of the Union on the grounds set out in sections 14(3)(b) and (f) of the Act.

These grounds which were specified in the notice are:

(i) The officers of the Trade Union have persistently and wilfully failed to comply with the provisions of the Act.

(ii) The accounts of the Trade Union are not being kept in accordance with the provisions of the said Act.

This notice of suspension was served on the President and Secretary of the Union on 22nd September, 1977. At no time, up to and including the date of hearing of the appeal on 2nd March, 1978, has the Registrar received any of the details and information he first sought by letter dated 14th June 1977. In answer to a question from the Court the treasurer stated if he was given two or three days more time he could furnish the information requested. It is perfectly obvious to me from his admission that he only writes up his cash book at the end of the year that he could furnish the information within a further two or three days was a pious hope unlikely to be realised. Most of the Union executive were imprisoned as a result of being convicted of offences under the Act but they were released from prison about the 11th November, 1977 one month before registration of the Union was cancelled on the 12th December 1977. There is no evidence that any of the executive did anything at all to comply with the Registrar's request.

The treasurer did not go to prison. Between the 14th June 1977 and the date when the Union's registration was cancelled he had close on six months within which to furnish the information requested. The information was never furnished to the Registrar.

One month's due notice under section 14(4) of the Act was given by the Registrar to the Union of intention to suspend its registration. Under section 14(5) the Union had one month within which to show cause in writing against the proposal to suspend its registration. The Union did not show cause. Had it done so the Registrar may then have held an enquiry. There was no obligation to hold any enquiry before suspending registration.

The proviso to section 14(1) of the Act makes it mandatory for the Registrar where he has suspended registration either to restore or cancel the registration within four months from the date of such suspension.

On the 12th December, 1977 well within the period of four months the Registrar, again with the prior advice of the Trade Unions Advisory Committee, made an order cancelling the registration of the Union. Notice of the order of cancellation was published in the Fiji Royal Gazette on the 16th December, 1977.

The foregoing relates the action taken by the Registrar. I turn now to consider the grounds of appeal.

No objection was raised to any procedural action taken by the Registrar. Indeed there could be no objection as the Registrar acted throughout in strict compliance with the requirements of the Act.

It is clear that had the Union made any effort to meet his requests the Registrar would have been sympathetic and understanding. I view his abortive efforts to obtain and peruse the books himself as an effort to obtain the information he had requested appreciating that the Union either could not or would not comply with his request. Nor was any objection raised as to the validity of the grounds for suspension and cancellation specified in the notice of suspension or cancellation.

The first ground of appeal states the reasons given by the Union as to why it was impossible for it to comply with the Registrar's request dated 22nd July, 1977 in respect of the period 1st June, 1976 to 20th July, 1977. The Registrar's letter refers to period 1st January 1976 to 20th July, 1977. There is no mention in this ground of appeal of the request of 14th June, 1977 presumably, because the Registrar did not purport to seek the information pursuant to any of the provisions of the Act.

Both in the treasurer's affidavit and in the first ground of appeal it is made to appear that the police had seized the Union's books of account which would include the cash book which, if properly maintained, could have provided the information the Registrar required.

It was disclosed by Mr. Godfrey at the hearing that the police did not have the cash book. He stated that when he interviewed the treasurer he the Registrar wanted to know the whereabouts of the cash book. The treasurer's answer as appears in his statement was "I do not maintain a cash book". "This is written up at the end of the year by me the secretary and the auditors."

The treasurer did not disclose the present whereabouts of the cash book, if it in fact existed. His affidavit and the first ground of appeal was misleading.

The facts do not support the appellant's contention that it was impossible for the Union to comply with the Registrar's request for the reasons stated in the treasurer's affidavit and urged by Mr. Parmanandam. The treasurer was not imprisoned and the members of the executive were released from prison a month before the Union's registration was cancelled. What the facts do disclose is either deliberate refusal to comply with the request or sheer inability to comply because of failure to properly maintain proper books of account and records. I believe the latter reason is the correct one. The journal held by the police had only been entered up to March 1976 more than a year before the prosecution of the Union executive was instituted. The Union has not given any acceptable excuse or reason why this Court should interfere with the Registrar's order cancelling the registration of the Union. The first ground accordingly fails.

The last ground can be disposed of very shortly.

Mr. Parmanandam argued that there should have been an enquiry by the Registrar before he cancelled the registration. There is no merit in this argument.

When the Union was given notice of intention to suspend it had a month within which to show cause against the suspension. Had it done so the Registrar may then have held an enquiry. He was not obliged to hold an enquiry particularly where cause against suspension had not been shown by the Union or to give the Union a hearing. Within four months after suspension he was legally obliged to cancel or restore the registration. He had valid and ample grounds for cancellation. He was not obliged to give the Union any hearing or carry out an enquiry after suspension and before cancellation. There was no breach of natural justice nor was the Trade Unions Advisory Committee which I assume is the Committee referred to in the third ground in any way concerned about an enquiry when it tenders advice to the Registrar. The third ground also fails.

The appeal is dismissed.

R.G. Kermode
JUDGE

Suva,
15th March, 1978.