Anisikawa & 29 Ors v Reginam [1978] FJSC 22; Criminal Appeal 009 of 1978 (22 March 1978)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 9 OF 1978

MACIU ANISIKAWA & 29 ORS
Appellants

v.

REGINAM
Respondent

JUDGMENT

This is an appeal against the conviction of the 30 appellants by the Magistrates Court Suva on the 4th November, 1977 of the offence of Breach of Contract contrary to section 14(1)(a) and section 37 of the Trades Dispute Act.

The grounds of appeal stated in the petition are:

"(a) That the Learned Magistrate erred in law and in fact in holding that the Tribunal's Award made no change in respect of Sunday work as provided in the Master Agreement (Ex.5). Hence there has been a substantial miscarriage of justice.

(b) That the conviction was wrong in law in that:-

(i) The Learned Magistrate should have quashed the charge in that section 14(1)(a) of the Trade Disputes Act 1973 is void being in conflict with section 12 and/or 13 of the Fiji Independence Act 1970.

(ii) The Learned Magistrate should have held that section 16 of the Trade Disputes Act being later than section 14, section 16 should prevail so that section 14 was of no effect in law ALTERNATIVELY that the words "Breaks his contract of service" in section 14 do not include a strike or cessation of work.

(iii) The Learned Magistrate should have held that the provisions of section 14 of the Trade Disputes Act when read in conjunction with other sections of the said Act were at least doubtful and that doubt should have been resolved in favour of the liberty of your Petitioners."

At the hearing Mr. Parmanandam sought and was granted leave to add and argue three further grounds as follows:

"1. That the learned trial magistrate erred in law and fact in convicting the appellants when the trade union in question was suspended and therefore there was no enforceable agreement. Hence there has been a substantial miscarriage of justice.

2. That the learned trial Magistrate erred in holding that "I am satisfied that by refusing as they did (i.e. the Appellants) to continue work after midnight ... after having being required to do so" when in fact the evidence disclosed that only some were so required. Hence there has been a substantial miscarriage of justice.

3. The learned trial magistrate erred in law in failing to consider the charge against each accused separately. Hence there has been a substantial miscarriage of justice."

The first ground was abandoned by Mr. Parmanandam. In respect of grounds (b)(i), (ii) and (iii) Mr. Parmanandam was aware that this Court in Cr. App. No. 104 of 1977 The Fiji Waterside Workers & Ors v. R. held that sections 14 and 16 of the Trade Disputes Act were not ultra vires the Fiji Constitution. He explained that in view of this case which he considered the Court would follow he did not abandon the grounds and asked the Court without argument to agree to leave the matter open to enable him to take the matter further if he decided to do so. To accommodate Mr. Parmanandam I hold that sections 14 and 16 of the Trade Disputes Act are not ultra vires the Fiji Constitution and record that grounds (b)(i), (ii) and (iii) have no merit.

I turn now to the additional grounds of appeal.

There is no merit in the first ground. While there was no argument that the registration of the Fiji Waterside Workers and Seamen's Union had been suspended at the relevant time, that suspension could not and did not affect the individual contracts of service entered into by the respondents with their employers, the Ports Authority of Fiji. The learned trial Magistrate found as a fact that the Master Agreement (Ex.5) as amended by the Agreement (Ex.4) and the Arbitration Award (Ex.7) governed the relations between the Ports Authority and the Union. The Magistrate considered the effect of the suspension of the union's registration on the employment of the dockworkers and he held that at all material times so much of the conditions of employment as were contained in the Master Agreement as amended by a later agreement and the award applied to each dockworker and was part of his contract of service. The Magistrate was correct in his finding. The suspension of the union's registration had no effect on the dockworkers contracts of service which remained in full force and effect. The first additional ground fails.

Mr. Parmanandam limited his argument on the second ground of appeal to referring to the evidence of P.W.11 Tevita Magiti on page 33 of the record. He was the head overseer and on the night in question he notified two headmen in the absence of their gangs and one gang which had no headman to continue working until all cargo had been unloaded. Mr. Parmanandam argued that there was no evidence that all the respondents were advised of the requirement to continue working. He made no attempt to sort out those appellants who were notified they had to work that Saturday night from those he alleged were not personally notified.

The learned Magistrate fully considered all the evidence. He found as a fact that the dockworkers including all 30 appellants had been rostered for the 7 p.m. shift that night and were required by the terms of the Master Agreement to work after midnight to complete unloading of the "Freemantle Star".

P.W.6 Peni Delailakeba, Recruiter, produced the Roster Book and clocking cards and identified the 30 appellants. The cards of 28 of the appellants show that they all clocked out after midnight and before 1 a.m. on that Sunday. The witness could not produce cards for two of the appellants but he testified they handed their cards to him after clocking out.

The prosecution established that all appellants were required to work that night and that they all ceased work shortly after midnight when they were required to work until 6 a.m. Sunday morning or until the ship was unloaded if that was completed before 6 a.m.

It was open to any of the appellants to give a satisfactory reason for ceasing work such as illness but none of them did so.

The learned Magistrate's finding was fully justified by the evidence and the second additional ground fails.

As regards the third additional ground the learned Magistrate in a lengthy but very lucid judgment fully considered all the evidence and it is clear that he did consider the charge against each of the appellants notwithstanding that he was presented with a difficult case involving an unusually large number of accused. There is no merit in this ground of appeal.

The appeal is dismissed.

R.G. Kermode
JUDGE

Suva,
22nd March, 1978.