Fiji Public Service Association v Airports Fiji Ltd [2022] FJSC 8; CBV 008 of 2009 (8 March 2022)

IN THE SUPREME COURT OF FIJI
AT SUVA
CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.CBV 008 of 2009

[On Appeal from Court of Appeal

Civil Appeal No. ABU 0070 of 2007]

BETWEEN: THE FIJI PUBLIC SERVICE ASSOCIATION
Petitioner

AND: AIRPORTS FIJI LIMITED

First Respondent

AND: THE PERMANENT SECRETARY FOR LABOUR

Second Respondent

AND: DISPUTES COMMITTEE

Third Respondent

Coram : Gates J,

Chitrasiri J

Counsel: Mr. Hemindra Nagin for the Petitioner

Mr. C. B. Young for the First Respondent

Date of Hearing : 30 March 2011

Date of Judgment : 08 March 2022

JUDGMENT

Gates. J

[1] This petition arises out of judicial review proceedings of a Disputes Committee decision in an employment matter. The chief litigation issue was whether the recognition of the trade union as evidenced in the case met the pre-requisite conditions for the union to become a party and for the referral of the dispute as a “trade dispute” to the Committee. The steps for obtaining recognition, voluntarily or compulsorily, were set out in the Trade Unions (Recognition) Act 1998, though it had been argued by the Union [The Petitioner] that recognition could also be established by conduct.

[2] Before the judgment could be delivered, a member of the hearing panel Justice Suresh Chandra, sadly passed away. The parties have since given their consent to the decision being delivered by the remaining judges on the panel.

The Facts

[3] Airports Fiji Limited, the 1^st Respondent, had employed 13 trainee firemen. Later they were dismissed from that employment for failing to report for work.

[4] The trainee firemen were employed by Airports Fiji from the 2^nd October 2000 for a period of 2 months. At the end of that period they were offered 12 months probationary employment from 29^th December 2000.

[5] On 2 days, the 20^th and 21^st July 2001, the firemen did not report for duty, nor respond to counselling, or give an explanation for their absence on those days. Accordingly on 11^th December 2001 Airports Fiji terminated their employment under section 28 of the Employment Act Cap 92.

[6] Following a request made by the Minister for Public Enterprises, the dismissed firemen were again offered employment this time for a 6 months probationary period, and they were to report to work on 29^th December 2001.

[7] They failed to do so. Thereafter, on 6^th June 2002 the Union representing the firemen reported a trade dispute.

[8] By letter of 3^rd July 2002 the Permanent Secretary of Labour accepted the report and referred it to a Disputes Committee, a mechanism provided for under the legislation.

[9] The Disputes Committee handed down its decision on 8^th August 2002. It found the termination of the 13 Firemen had been wrong. It directed the re-instatement of the Firemen. The Committee gave as its reason that termination had been made under section 28 of the Employment Act, and added that such a termination could only be made in the case of oral contracts.

[10] The Court of Appeal observed there was no justification to be found in the legislation for giving such a reason and that the Committee had been wrong in making this finding. Section 2 of the Employment Act defines “contract of service” as any contract, whether oral or in writing, whether express or implied to employ or to serve as an employee for any period of time or number of days to be worked or to execute any task or piece of work or to perform for wages, any journey and includes a foreign contract of service.”

[11] Airports Fiji took this decision to the High Court and sought judicial review.

[12] Later the Court of Appeal considered that the issue central to the appeal had been whether the employer, Airports Fiji, as a matter of law, had recognised the Union [the Petitioner] as the union representing the employees, the Firemen.

The High Court

[13] Airports Fiji sought review in the High Court of the decision of the Permanent Secretary for Labour, Industrial Relations and Productivity of 3^rd July 2002 to accept the existence of a trade dispute between FPSA [the Union] and Airports Fiji [the Employer]. The Employer also sought review of the decision of the Disputes Committee. It sought the reliefs of certiorari, interim stay, and costs.

[14] Airports Fiji claimed the Union purported to report a trade dispute whilst not being recognised by the Employer. It argued a trade dispute under the Trade Disputes Act Cap 97 is only such if the Union is recognised in conformity with the Trade Unions (Recognition) Act.

[15] The Permanent Secretary’s decision to accept a trade dispute between the Union and Airports Fiji was therefore ultra vires and flawed. The PS was also mistaken on the facts that Airports Fiji had in law recognised the Union. Hence the PS had acted irrationally and with procedural irregularity.

[16] Early on in the short judgment the learned judge said:

“In deciding whether to grant leave or permission to bring a claim, the applicant must prove to the Court that he has an arguable case on the merits, that he has sufficient interest in the matter, that there had been no delay in applying for permission, and there were no alternative remedies available for the Applicant to pursue. The Court on all except the first consideration, is satisfied that the Applicant has met the threshold required namely, he has sufficient interest in the matter, there had been no delay and no other remedies were available to the Applicant. There remains only the question whether the Applicant has an arguable case.”

[17] His Lordship said that Airports Fiji had in 1996 succeeded in part the Civil Aviation Authority of Fiji Islands [CAAF]. CAAF had a collective agreement with the Union, the union representing the employees of the Authority. According to the Union, Airports Fiji was bound by the terms of the collective agreement because of the successor clause in the agreement.

[18] The judge referred to the fact that there had been a multiplicity of litigation between Airports Fiji and the union following the re-organization of CAAF. He said:

“It is sufficient for the present purpose to state that the Court had already decided that the collective agreement originally entered into between CAAF and FPSA was also binding on AFL (see State v Permanent Secretary for Labour & Industrial Relations and Productivity, Arbitration Tribunal & FPSA exp. Airports of Fiji Limited HBJ 31/2002). In other words the Court found that AFL had recognized FPSA as representing the employees. This agreement has now been formalized between the parties in June, 2002.” His Lordship did not give the exact date of the agreement which was 9^th June 2002. I note here that the Union reported a trade dispute on 6^th June 2002, 3 days before a formal recognition agreement had eventually been finalised.

[19] His Lordship acknowledged that the two key issues were, union recognition and whether there existed a collective agreement between the parties. The judicial review claims that were advanced were supported by the two central issues. The matters had been conclusively decided against Airports Fiji in the previous case cited, HBJ 31/2002. For this reason His Lordship concluded there remained no arguable case on merits and refused leave. The Court of Appeal considered the mention of merits an unfortunate slip not relevant to this decision.

Court of Appeal

[20] Airports Fiji Limited took the matter upon appeal to the Court of Appeal. It claimed the judge had overlooked the fact that there was no collective agreement in place. There had been a proviso in the Union Recognition Agreement made on 9^th June 2002 which stated:

“As soon as practicable after the execution of this Agreement by the parties hereto they shall in good faith enter into negotiations in relation to all matters which are likely to enhance their long term relationship including entering into a Collective Agreement.”

This proviso tended to indicate that presently, at the time of signing, there had been no collective agreement in place setting out the terms and conditions of employment.

[21] Without a binding agreement setting out the terms and conditions of employment between the Union and Airports Fiji, the Union lacked the necessary and fundamental pre-requisite of authority to represent the firemen to have the trade dispute referred to a Disputes Committee.

[22] Airports Fiji claimed therefore that it had met a threshold requirement of showing it had an arguable case for the grant of the leave to proceed for judicial review.

[23] Accordingly the Court of Appeal made its order as follows:

“For the reasons we have given we allow the appeal and order

that leave be granted for the Appellant to apply for Judicial Review of the decision of a Disputes Committee dated 8^th August 2002 directing the re-instatement by the Appellant of 13 firemen dismissed by it on the 11^th December 2001 and that the substantive matter be referred back to the High Court for directions to hear the substantive matter in review. The 3^rd Respondent must pay the Appellant’s costs of this appeal which we fix at $4,000.00.”

[24] The Court canvassed in detail the arguments raised by both the Appellant and the 3^rd Respondent [now Petitioner]. These will be referred to in considering the petition hereafter.

[25] The second ground sought to uphold the High Court decision that Airports Fiji did not have an arguable case. This ground can only be established by examining the correctness of the other findings of the Court of Appeal.

[26] It was generally agreed that the central issue was that of Union Recognition [Grounds (a) (c) and (d). This issue has two parts, recognition under the provisions of the Trade Union (Recognition) Act 1998 and second the argument that there could be lawful recognition outside of the legislative framework where recognition could be found by conduct. Not only should the union be formally recognized under the legislation but the collective agreement must be a collective agreement which had been “duly registered under the Trade Unions Act” [Section 5.1].

[27] The Court found that the collective agreement that had been registered under the Trade Unions Act had been the Recognition Agreement dated 9^th June 2002. As has already been observed the report to the Permanent Secretary of Labour to trigger the referral to the Disputes Committee by the workmen’s purported representative had been lodged on the 6^th June 2002. This was putting the cart before the horse, for at the time of lodgement there was no recognition agreement in existence empowering the trade union to represent the employees in this procedure.

[28] The procedure for obtaining official trade union recognition is straight forward. The Trade Unions (Recognition) Act Section 3 (1) provides:

[1] “Where there is-

(a) A registered trade union of which more than 50% of the persons eligible for membership and employed by an employer are voting members; and
(b) No other registered trade union claiming to represent those persons,

that trade union is for the purpose of collective bargaining entitled to recognition by the employer in accordance with a voluntary recognition agreement executed between the employer and the trade union.

[2] An application for recognition under subsection (1) must be in writing and sent to the employer by registered or courier mail, or hand delivered to the employer, with a copy to the Permanent Secretary in either case.

[3] An employer who has received an application for recognition from a trade union under subsection (2) must respond to the application within 7 days of receiving it.

[4] A registered trade union which has applied for recognition by an employer under subsection (1) but-

(a) has been refused recognition by the employer, or

(b) has not been accorded recognition by the employer within 1 month of the application,

may apply to the Permanent Secretary for the issue of a compulsory

recognition order under section 8.”

[29] And in cases of refusal to recognize by the employer Section 8 is to be followed:

(1) “The Permanent Secretary, on receipt of an application under section 3(4) must consider the application, taking into account all the facts and circumstances appearing to be relevant any may, subject to section 11, make a compulsory recognition order-

(a) Declaring that a registered trade union is entitled to recognition; and
(b) Specifying the manner in which the employer is to accord recognition to the trade union.

(2) A compulsory recognition order made under Subsection (1) is effective from the date it is made or as otherwise specified in the order.”

[30] The Petitioner, had referred to the English case of National Union of Tailors and Garment Workers v Charles Ingram and Co. Ltd. [1978] 1 All ER 1271 at p 1273 where the Appeal Tribunal held:

“Recognition plainly, we think, implies agreement, which of course involves

consent. That is to say, it is a mutual process by which the employers recognize the union, which obviously agrees to be recognized and it may come about in a number of different ways. There may be a written agreement that the union should be recognized. There may be an express agreement not in writing. Or, as we think, it is sufficient if neither of these exists but the established facts are such that it can be said of them that they are clear and unequivocal and give rise to the clear inference that the employers have recognized the union. This will normally involve conduct over a period of time. Of course, the longer that state of facts has existed the easier it is in any given case to reach a conclusion that a proper interpretation of them inevitably leads to the conclusion that the employers have recognised the union. Against the test, it has not been suggested here that there is any formal document by which the company recognized the union. It is necessary to look at the facts.”

[31] It seems that the path of seeking recognition under the Trade Unions (Recognition) Act was not followed by the union.

[32] The Union claimed that it could be inferred by the conduct of the employer that the union had been recognised for the purpose of collective bargaining. A good deal of material, chiefly correspondence as exhibited in affidavits it was said demonstrated acceptance of the union and its recognition by the employer.

[33] The two cases cited by the petitioner Ingram (supra) and Joshua William and Brothers Ltd v Union of Shop Distributive and Allied Workers [1978] 3 All ER 4 at 6 were urged in support of the argument that recognition by conduct could be acceptable.

[34] Both cases followed the statutory definition in the English legislation [Employment Protection Act 1975] where recognition had been defined in relation to a trade union as meaning “the recognition of the union by an employer, or two or more associated employers, to any extent for the purpose of collective bargaining.” This, as the Court of Appeal observed, was not a definition to be found in the Fiji legislation. Indeed the procedure laid out in Section 3 covers both the voluntary agreement, and in the event of non-agreement, pointing to a procedure in Section 8 for the Permanent Secretary to decide.

[35] There is no mechanism for recognition by conduct outside of that procedure.

[36] If the recognition was voluntary, it was necessary to forward such written agreement to the Permanent Secretary. The agreement was to be executed by the parties, and any collective agreement had to be registered. None of this had occurred. In the Joshua Wilson case, Kilner Brown J observed at 7:

“Indeed the experience of the trade union members of the Employment Appeal Tribunal as a whole is that both sides of industry place great store on formal agreements relating to recognition. Thus it can easily be understood that in two of the three cases cited the evidence fell short of proving that there had been recognition.”

[37] In the High Court the Judge had relied on the authority of a judgment delivered after the hearing in the instant case. That was the Judge’s own decision in the FPSA v Arbitration Tribunal ABU 0010 of 2003. It had been decided on the 18^th of April 2005. The hearing in the instant case took place on the 4^th of April 2003, approximately 2 years earlier.

Obviously the parties had had no opportunity to present argument on the 2005 decision. The judge said it was for the parties to approach the Court prior to judgment to bring up the 2005 decision. That is not a satisfactory answer to the difficulty.

[38] Two grounds in the petition sought to persuade this Court that the Court of Appeal should have followed the earlier case and accepted that recognition by conduct had already been decided. This would have meant the earlier collective agreement between FPSA and CAAF was to be applied.

[39] The Court below said the Judge was under a duty of fairness to reconvene the Court and inform Counsel that he might rely on the 2005 case in his judgment and invite further submissions from them if they wished to make any. The Court concluded “That he failed to do this in our judgment is another reason why we cannot uphold his decision in the present case.”

[40] Since recognition was the main litigation issue in the case, this failure was even more significant. The Court was right so to hold.

[41] Counsel for the employer in the High Court had raised the issue of the late signing of the recognition agreement [[9^th June 2002], signed after lodgement of the union’s report to the Permanent Secretary. At the time of lodgement the union lacked the tackle to enter upon this procedure. This argument should have been dealt with by the Judge in his judgment. The mistiming was fatal to the Union’s case. The Union had made a premature commencement. The Court of Appeal was correct in its approach, and the petition must fail.

[42] Had the Trade Unions (Recognition) Act been followed accurately the Union would likely have achieved lawful and voluntary recognition by the employer, and no doubt a collective agreement would have followed and been properly registered.

[43] One cannot say why some of these matters did not feature in the learned judge’s judgment. Delay, as suggested by the Employer’s counsel, could have been one reason. But it must be remembered that this was a refusal of leave and not a substantive decision on the judicial review.

Conclusion:

[44] The Judge had refused leave saying there was no arguable case. However, this Court finds the Court of Appeal’s decision rejecting that conclusion to have been correct. The arguments in favour of the grant of leave for judicial review have substance.

[45] It is noteworthy that the Trade Unions (Recognition) Act 1998 has since been repealed by the Employment Relations Promulgation (now Act) 2007 Section 265 (1) (e).

[46] In the result:

(1) the petition is dismissed;

(2) the orders of the Court of Appeal are to stand [as set out in paragraph 23 of this judgment].

(3) the Petitioner is to pay costs to the First Respondent of $3,000.00.

[47] Chitrasiri. J

I have read the draft judgment and agree with the reasoning and conclusions of Hon.
Justice Anthony Gates.

[48] Gates J

Orders accordingly.

.........................................

Hon. Mr Justice Anthony Gates

Judge of the Supreme Court

.........................................

Hon. Mr Justice Kankani Chitrasiri

Judge of the Supreme Court

Solicitors: Messrs Sherani & Co.
For the Petitioner

Messrs Young & Associates
For the First Respondent