IN THE HIGH COURT OF FIJI
(AT SUVA)
JUDICIAL REVIEW

ACTION NO. 17 OF 1993

IN THE MATTER of Wages Regulations (Manufacturing Industry) Order 1993
under Wages Council Act Cap 98.

AND

IN THE MATTER of approval of the said order by Minister for Labour,
Industrial Relations and Information.

AND

IN THE MATTER of Tropical Food Products Manufacturing (Fiji) Limited.

BETWEEN:

TROPICAL FOOD PRODUCTS MANUFACTURING (FIJI) LIMITED
Applicant

AND

THE MINISTER FOR LABOUR, INDUSTRIAL
RELATIONS AND INFORMATION
Respondent

M. Narsey: For the Applicant
J. Udit: For the Respondent

Dates of Hearing: 7th, 21st October, 4th, 11th November 1993
Date of Judgment: 28th December 1993

JUDGMENT

This is an opposed application for leave to judicially review the decision of the Respondent published in the Fiji Republic Gazette Supplement on the 16th of July 1993 whereby a new wages structure for the Manufacturing Industry was promulgated.

The Applicant is an employer in the manufacturing industry. It complains that it was denied natural justice in that it was not given an opportunity to make any submissions to the Manufacturing Industry Wages Council before the Council submitted to the Respondent Minister Notice of new Wages Regulations Proposals which if approved would come into force in 1993.

Two affidavits sworn by Solomone Makasiale the Chief Executive of the Applicant have been filed on behalf of the Applicant and an Affidavit in Reply has been filed on behalf of the Respondent by one Gyan Singh a civil servant who is the Secretary to the Manufacturing Industry Council. An attempt was made by the Applicant to file two further affidavits by other employers in the manufacturing industry but as no leave to file these affidavits was requested by the Applicant and as leave was opposed by the Respondent I refused to allow the Applicant to rely on them.

The Applicant gives various grounds to support its application for leave. These may be summarised as follows:

(i) The Applicant was denied natural justice in that it was not given an opportunity to reply to any submissions made to the Manufacturing Industry Wages Council.

(ii) That the Wages Council failed to publish details of the proposals in the manner prescribed by the Wages Councils Act Cap. 98.

(iii) That before the Respondent ordered what is termed "a massive wage increase" the Wages Council did not with due diligence carry out a proper investigation or inquiry as required by Section 8(2) of the Wages Councils Act.

(iv) That the Respondent's Order approving the increase in wages was arbitrary, unfair and improperly made.

(v) That the failure to conduct the proper inquiry resulted in the Respondent taking into account unverified material and irrelevant matters.

(vi) That the decision of the Respondent in approving the wages increase was unreasonable and unlawful and an abuse of the discretion vested in the Respondent.

I received compendious written submissions from the parties containing the citation of most of the well-known authorities relevant to the questions before me. For reasons which will appear I have found it unnecessary to refer to most of these cases but I shall discuss those I consider of assistance when dealing with the submissions of the parties.

Before doing that it is desirable to refer to the relevant legislation.

Under Section 3 of the Wages Councils Act the Minister for Labour, Industrial Relations and Information ("the Minister") is given power to establish Wages Councils for particular industries by order published in the Gazette when he is satisfied that no adequate machinery exists for the effective remuneration of workers in particular industries.

Under Section 6 a First Schedule is included in the Act prescribing the Constitution, officers and proceedings of Wages Councils.

Under Clause 1 of the First Schedule a Wages Council shall consist of persons appointed by the Minister, being-

(a) not more than three persons chosen by the Minister as being independent persons;

(b) such number as the Minister thinks fit of persons who, in his opinion, represent employers in relation to whom the council or, as the case may be, the councils in question, is or are to operate;

(c) such number as the Minister thinks fit of persons who, in his opinion, represent workers in relation to whom the council or, as the case may be, the councils in question, is or are to operate.

Section 8 of the Act deals with Wages Regulation Orders. It says that subject to the section, any Wages Council shall have power to submit to the Minister Wages Regulation Proposals for fixing the remuneration to be paid by employers to all or any of the workers in relation to whom the Council operates and for the holidays to be given by their employers to their employees.

Sub-section 2 is important for the purposes of this application and I therefore quote it in full.

"Before submitting any wages regulation proposals to the Minister, a wages council shall make such investigations as it thinks fit and shall publish, in the prescribed manner, notice of the proposals, stating the place where copies of the proposals may be obtained and the period within which written representations with respect to the proposals may be sent to the council; and the council shall consider any written representations made to it within that period and shall make such further inquiries as it considers necessary and may then submit the proposals to the Minister either without amendment or with such amendments as it thinks fit having regard to the representations:

Provided that if the council, before publishing its proposals, resolves that, in the event of no representation with respect to the proposals being made to it within the said period the proposals shall without further consideration be submitted to the Minister, the proposals shall, if no representation is so made, be submitted to the Minister accordingly."

By Sub-section 3 where the Minister receives any Wages Regulation Proposals, he shall make a Wages Regulation Order giving effect to the proposals from the date specified in the order. There is a proviso that the Minister may, if he thinks fit, refer the proposals back to the Council for reconsideration.

Section 18 enables the Minister to make regulations prescribing anything required or authorised to be prescribed by the Act and various Wages Council Regulations have been passed.

The Applicant complains that it was not consulted before the wage increase was made and that the Respondent did not comply with the procedures prescribed by the Act before making the Wages Regulation (Manufacturing Industry) Order in dispute in these proceedings. It states that the Wages Council did not make any investigation or any sufficient investigation into the capacity of employers in the manufacturing industry to pay the wage increase ordered by the Minister.

The Shorter Oxford English Dictionary, Third Edition, 1970 defines the verb "investigate" as:

"to search or inquire; to examine systematically or in detail ......."

It is common ground that at a meeting of the Wages Council on the 11th of November 1992 at which were present all the representatives required by the Act, i.e. the Chairman, four representatives of employers, three representatives of employees, Mr. Gyan Singh and the Secretary to the Council, Pita Leweniqila, Mr. James Raman one of the employees' representatives suggested that employees in the industry should receive a wage increase of 38.5 percent. The Chairman then allowed a five minutes break at the request of one of the employers' representative Mr. Ken Roberts and after this short adjournment on behalf of the employers Mr. Roberts proposed that the existing rate of $1.13 per hour be increased to $1.50 per hour.

This was agreed to by the employees' representatives.

Following this meeting the Secretary to the Manufacturing Industry Wages Council published in the Gazette a Notice of the Wages Regulation Proposals agreed at the meeting of the 11th of November 1992 and rather than paraphrase the notice I shall now quote the relevant parts of it in full. They are:

"IN accordance with the provisions of subsection (2) of Section 8 of the Wages Council Act, the Manufacturing Industry Wages Council constituted by the Wages Council (Manufacturing Industry) Order hereby gives notice of its intention to submit to the Minister for Labour and Industrial Relations the undermentioned Wages Regulation Proposals.

Copies of these Proposals are displayed at the offices of the Ministry of Labour and Industrial Relations in Suva, Lautoka, Labasa, Ba, Nausori, Nadi and Savusavu, at the offices of District Officers Navua, Sigatoka, Tavua, Rakiraki, Korovou, Vunidawa, Levuka, Taveuni and Rotuma.

Written representation with respect to these Proposals may be sent to the Council at the undermentioned address so as to reach the Secretary on or before 14 May 1993.

Representations should be signed by or on behalf of a person or body making them and the address of that person or body should be clearly set out therein.

The address of the Secretary is:

c/- Ministry of Labour and Industrial Relations
P.O. Box 2216
Government Buildings
Suva

Issued by order of the Manufacturing Industry Wages Council in Suva this 16th day of April, 1993.

G. SINGH
Secretary
Manufacturing Industry Wages Council"

The Applicant complains that this Notice is contrary to Section 8 of the Act in that it refers to the fact that copies of the Wages Proposals are displayed at the places mentioned in the Notice whereas under Section 8(2) it should have stated where copies of the proposals may be obtained.

The Applicant argues that this failure to comply with Section 8(2) is fatal to the Minister's order and that consequently for this reason alone leave should be granted to judicially review the Respondent's decision.

Before that question can be considered however there are two preliminary hurdles which the Applicant must negotiate:

(1) Whether it has sufficient interest in the proceedings to justify it applying for judicial review?

(2) Whether on the material it has an arguable case justifying the granting of leave? 

The question of sufficient interest is always related to the locus standi of an Applicant for judicial review.

It is clear from the decision of the House of Lords in IRC v. The National Federation of Self-employed and Small Business Houses (1982) A.C. 617 that whether an Applicant has a sufficient interest to maintain an application for judicial review cannot be answered in the abstract. It is necessary to consider the subject matter of his complaint and how he stands in relation to it or, generally how it affects him: see Lord Wilberforce at p.630.

At 653 Lord Scarman said that the busybody, the crank and the mischief-maker do not have sufficient interest. At 642 Lord Diplock said that the Court had an unfettered discretion to decide what, in its own judgment, on the particular facts of the case before it is a sufficient interest.

In R. v. Legal Aid Board Ex.p. Bateman (1992) 3 All E.R. 490 at 499 Jowitt J. said words which I respectfully adopt:

"For myself, I think that though the problem of definition is elusive common sense should enable one to identify a sufficient interest when it presents itself, like the horse which is difficult to define but not difficult to recognise when one sees it."

In the instant case it is not disputed that the Applicant is a member of the industry affected by the order of the Minister. In my judgment also as such the Applicant and the public have an interest in seeing that the decisions of bodies such as the Wages Council are made according to law. Accordingly I hold that the Applicant has sufficient locus standi to initiate these proceedings.

The second "hurdle" as I have termed it facing the Applicant before it can be given leave to judicially review the decision is whether it has an arguable case. The answer to this involves a consideration of all the facts as they are at present known. The first fact is that Wages Councils for the manufacturing industry have been in existence since 26th of August 1981 - see Annexure G1 to Respondent's Affidavit in Reply.

The second fact is that on the Manufacturing Industry Wages Council there are representatives of employers one of whom in the instant case, Mr. K.J. Roberts, is the Chief Executive of the Fiji Employers Federation who, according to the Minutes of the meeting of the Manufacturing Industry Wages Council held on the 11th November 1992 was present and who clearly acted as spokesman for the other employer representatives at the meeting. This is shown on page 2 of Annexure G8 of the Respondent's Affidavit in Reply.

It is also clear to me from the material that since 1986 unionised workers, which I presume means workers belonging to a trade union, had been given a total wage increase of 38.5 percent. According to Annexure G8, and again this is not disputed, the employees representative suggested that the current rates in the manufacturing industry be adjusted likewise.

In these circumstances I have no hesitation in rejecting the statement made on page 5 of the Applicant's submission that "it was the Employers Federation that had their representatives on the Council and not the Manufacturing Industry". I have no doubt, and it would be contrary to the legislation creating wages councils, to hold that the manufacturing industry had no representation on the Wages Council. It obviously did and these were the four persons named in Annexures G5 and G8 in the Respondent's Affidavit.

There is nothing to suggest in the evidence that the Applicant ever mentioned the concern about the wage increase which it now expresses with its own representatives in the Employers Federation. I would have thought that any responsible employer will always anticipate possible wage rises in his industry and that it therefore behoves any such employer to be active in his federation. One of the prime objects of any group of employers or employees is to concern itself with the possibility of any wage increases or the possibility of industrial disputes relating to wage increases and the principal way in which this knowledge is obtained is by taking an active part in the affairs and activities of the organisation to which the individual employer or employee belongs so as to be aware of current developments.

I would have also thought that any reasonable employer would be aware that details of proposed wage increases are published in the Government Gazette and that any reasonable employer would regularly read the Gazette so as to keep himself informed of any changes in industrial conditions such as wages.

Whether or not the Applicant read the Government Gazette regularly is not clear but apparently it did not do so in this case. If it had then it would have seen the Notice published in the Gazette dated 16th April 1993, Annexure G7 to the Respondent's affidavit.

I shall now deal with the Applicant's complaint that the Notice published in the Gazette did not comply with Section 8(2) of the Wages Council Act.

It is true that the Notice did not comply with the strict requirements of Sub-section (2) by its reference to copies of Wages Proposals being displayed at various offices of the Ministry of Labour and Industrial Relations as distinct from being obtained as stated in Sub-section (2). The question is whether this is fatal to the Minister's decision? Here I remind myself that this is a case in administrative law and not for example contract. In New Zealand Institute of Agricultural Science Inc v. Ellesmere County (1976) 1 NZLR 630 at 636 Cooke J. delivering the judgment of the Court of Appeal said:

"Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."

In the later case of A J Burr v Blenheim Borough Council (1980) 2 NZLR 1 at page 4 Cooke J. said:

"When a decision of an administrative authority is affected by some defect or irregularity and the consequence has to be determined, the tendency now increasingly evident in administrative law is to avoid technical and apparently exact (yet deceptively so) terms such as void, voidable, nullity, ultra vires. Weight is given rather to the seriousness of the error and all the circumstances of the case. 

Except perhaps in comparatively rare cases of flagrant invalidity, the decision in question is recognised as operative unless set aside. The determination by the Court whether to set the decision aside or not is acknowledged to depend less on clear and absolute rules than on overall evaluation; the discretionary nature of judicial remedies is taken into account." 

Later on page 5 he quoted with approval the words of Lord Hailsham L.C. in London & Clydeside Estates Ltd v. Aberdeen District Council (1980) 1 WLR 182 at 189-190:

"Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind."

In the instant case is the use of the word "displayed" as distinct from the word "obtained" so serious an error in all the circumstances as to invalidate the decision complained of? I think not. Whilst I do not agree with the comment by counsel for the Respondent that the Applicant's argument here is frivolous, nevertheless I do not think that it can be supported when viewing the evidence as a whole in this case.

 It will be noted that Annexure G7 stated that written representation with respect to the proposals could be sent to the Council on or before 14th May 1993, that is one month after the date of publication.

I have no doubt that if the Applicant through one of its officers attended the office of the Ministry of Labour and Industrial Relations in Suva after the Notice was published in the Gazette it would have had no difficulty in obtaining copies of the Proposals for wage increases. The contrary is not suggested by any body. In the view I have formed, if the Applicant has a cause to complain against anybody it is possibly its own Employers Federation but certainly not the Respondent. I agree with the comment of counsel for the Respondent that the Wages Council is under no obligation to hear individual employers before making a decision. It is entitled to presume, in my judgment, that the representatives of the employers on the Council will have been fully briefed by their members as to their ability or otherwise to pay any proposed wage increases.

In my judgment the Minister was entitled to assume (indeed the Act by clear implication allows him to) that the Wages Council, having made proposals to the Minister, had done so with the concurrence of the representatives of the various groups on the Council. In my judgment the Minister can not be made the whipping boy for the alleged mistake of somebody else.

This leads me to consider whether the Council made any mistake under Section 8(2) of the Wages Councils Act. The Applicant argues that the Council made no inquiries of it as to its ability to pay the proposed increase. The first meaning of "investigate" in the Oxford Dictionary is "to search or inquire into". Section 8(2) requires the Wages Council to make such investigations as it thinks fit. The Applicant concedes in its submission in reply that the Wages Council has to make some investigation, but that the nature, form or extent of the investigation does not matter. All that is necessary is that the investigation should seem appropriate for the particular situation or industry concerned.

I agree.

I again comment that no less a person than the Chairman of the Employers Federation Mr. Roberts was a member of the Wages Council in this case. The inquiry which he and his colleagues instituted was obviously from the evidence whether the claim by the employees representatives as to the 38.5 percent wage increase since 1986 was correct. It would appear that the employers' representatives did not seriously doubt this because on my calculations the increase they suggested and which was then agreed by the employees representatives was approximately 33 percent. This Court cannot substitute its opinion for that of either the Wages Council or the Respondent by holding that such an inquiry by the Council was not fit and proper in the circumstances unless it was patently unreasonable. In my judgment, information as to the amount of wage increases over a previous period in industry must be relevant to any proposed changes in wage rates. I am therefore not prepared to hold, as submitted by the Applicant, that the Wages Council should have made inquiries from a randomly chosen group of employers in the industry as to the capability of individual employers to pay the proposed increases. Whether or not it would have been more prudent for the Council to have done so is not to the point. The question I have to decide is whether the action of the Wages Council here was arguably so unreasonable as to enable me to hold that it possibly failed to take into account all relevant matters. I consider it did not. The phrase "as it thinks fit" is very wide. The Oxford Dictionary defines the word "fit" as "suitable; to adapt to the object in view". Applying that definition to the material before this Court I am of the opinion that the inquiry made by the Wages Council in this case was appropriate to the object before the Council. If the Applicant thought otherwise then in my judgment it should have endeavoured to persuade the Council that it was wrong and to submit a revised proposal to the Respondent. Clearly it did not.

Accordingly in my judgment the Applicant has failed to satisfy the Court that in all the circumstances of this case it has an arguable case. I therefore refuse leave to judicially review the decision of the Minister complained of. The application is dismissed and the Applicant must pay the Respondent's costs.

That then is my decision on the present application but before parting with the application it is desirable that I should say something more about the Wages Council's failure to use the word "obtained" in its Notice of the proposed wage rises. Whilst in this judgment I have condoned the failure of the Council to follow the directions in Section 8(2) because I consider the Applicant in the circumstances of this case has not suffered any injustice or been denied any rights available to it under the law, nevertheless I consider that on all future occasions Wages Councils in giving notices under Section 8(2) should state where copies of the proposals may be obtained and not merely displayed. This will mean that at the various offices of the Ministry of Labour and Industrial Relations and the offices of the District Officers mentioned in the notice there should be available copies of the notice for any person who wishes to obtain them. If this is done it may result in litigation such as the present not being commenced so that Wages Councils will not lay themselves open to the criticism that they have not acted in accordance with the strict letter of the law.

JOHN E. BYRNE
J U D G E
HBJ0017J.93S