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Fiji Public Service Association v Civil Aviation Authority of Fiji [1997] FJHC 236; Hbc0206d.97l (29 September 1997)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0206 OF 1997L

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
Plaintiff

AND:

CIVIL AVIATION AUTHORITY OF FIJI
Defendant

Mr Prakash for the Plaintiff
Ratu Vakalalabure for the Defendant

Date of Hearing: 1st August 1997
Date of Ruling: 29th September 1997

RULING

This is an application for declarations and injunctive relief. The declaration (as amended) sought are as follows:-

(i) That the Plaintiff is the sole representative of all the salaried employees of the Defendant and entitled to recognition by the employer for the purposes of collective bargaining.

(ii) That the Defendant is in breach of the Trade Union Act by recognising the Civil Aviation Workers Association (CAWA) when it does not have the necessary membership to enable CAWA to carry out collective bargaining on behalf of its members, whether salaried or unestablished employees.

(iii) An injunction to restrain the Defendant whether by itself or its servants and agents from recognising and/or dealing with CAWA as a recognised Union of the salaried employees of the Defendant for the purposes of collective bargaining, until further order.

This matter is very much an inter-union dispute into which the 1st Defendant has most unwisely allowed itself to be drawn.

FACTS

The Plaintiff (FPSA) is an association which undertakes the task of, inter alia, a Trade Union. Included amongst its members are employees of the 1st Defendant.

In 1991, FPSA and CAAF successfully negotiated a collective agreement designed to meet the employment terms of the salaried employees of CAAF. CAAF also employs other persons on an hourly and/or part-time basis. These persons are termed "unestablished workers". These persons are not subject to the collective agreement.

Pursuant to Article B of the Collective Agreement, CAAF recognizes FPSA as the sole representative of, and agent for collective bargaining purposes, of the salaried staff.

More recently CAWA has been formed. It is not disputed that this Association is a properly formed Trade Union. CAWA's members include some unestablished and salaried employees of CAF. By order, CAWA was allowed to join in these proceedings as an interested party.

As well as recognising FPSA, CAAF has recognised CAWA as the collecting bargaining agent for its CAWA's members. FPSA, understandably perhaps, takes objection to this. What FPSA says, no doubt, is that Article B of the collective agreement is clear - it is the sole representative for the salaried employees for the purposes of collective bargaining.

I have heard the submissions of Counsel and have taken time to consider these. I am left with the conclusion that, at least so far as I understand the matter, it is best to simplify the issues. I will now endeavour to do so. In so doing I depart a trifle from the complex submissions of Counsel. For this I extend apology but oft times I find the simple thought process of a predominantly forthright rural upbringing predominate and thus expose any pretences of feigned intellectuality that I may have.

To my mind, the following appear as relevant issues:-

1. There can effectively only be one collective bargaining agent between CAAF and its Salaried Staff at any one time - this to me is the intent of Article G.

Pursuant to Article B, the FPSA is described the sole bargaining agent. This can be changed by agreement under Article D. Hence an organisation of Air Traffic Controllers (also salaried staff) - FATCOA - is permitted to collectively bargain for its members.

Any salaried staff (general, air traffic, unestablished or otherwise), who are not members of FPSA or FATCOA cannot be given better conditions than provided for in the agreement (Article G). The nett effect of this, one presumes, is that the non-union persons are likely to benefit from the bargaining efforts of the two abovenamed Associations.

Unestablished staff are not party to the Collective Agreement and, until CAWA came on the scene, they were effectively unrepresented.

With the above in mind, I turn to consider the declaration sought.

In respect of the 1st declaration sought, I do not consider it within the scope of this Court to rule on it at this stage. As I read the Agreement (and had previously ruled) it is an arbitral agreement. Its purpose is to give the parties (FPSA AND CAAF) a forum for negotiations and dispute resolution by arbitration and only to present to Court as a last resort, and then only in defined circumstances.

This declaration before me now seeks the Court's interpretation of the Agreement and Article 8 in particular.

The application in respect of Prayer 1, evidences a dispute between CAAF and the FPSA in its collective role. As I read Chapter VII of the Agreement, a procedure to resolve such differences has been established. This procedure has not been followed. The parties have gone straight off to Court.

In my view, if either of the parties seek to enforce the Agreement (which the first declaration seeks to do) they should work within the provisions of the Agreement. It is against the spirit of the Agreement for the Court to be asked to intervene. Further, I might add, it is quite against the principles of good administration of Industrial Relations for the Court to do so. This is even more so when the procedure set up within the Agreement itself for resolution and dispute has been ignored.

I decline to entertain declaration 1. CAAF and FPSA should be directed to Chapter VII of the Agreement and should follow the procedure therein. I do not consider it necessary that I comment further on the declarations sought except to direct all the parties' attention to the ruling of the Permanent Arbitrator (as he then was) in FPSA -v- CAAF No. 13 of 1997, which if closely read, offers considered insight into the industrial philosophy underpinning the Agreement. Whilst CAWA (or any other organisation), can clearly come to agreement with CAAF in respect of the unestablished employees, light may be shed on the "grey" area involving salaried worker by a reading of the Permanent Arbitrator's ruling.

Consideration of the second declaration sought involves interpretation of Section 3 of the Trade Unions (Recognition) Act Cap 96A as amended by Decree 43 of 1991, and Section 5 (1) of the Principal Act.

The FPSA submission is to the effect that the combination of the above sections must be taken to mean that if a Trade Union has over 50% of relevant employees as members, a rival Trade Union with less members, should not be recognised by the employer for the purposes of collective bargaining.

CAWA and CAAF submit that recognition per se, is a voluntary decision. It is only if a Trade Union with greater than 50% of employees is not recognised, that the combined effect of Section 3(1) and Section 5 is to make such recognition mandatory.

The view put forward by CAAF and CAWA, is, to my mind, the correct view. Without reciting the section herein, I think the meaning and effect is clear. An employer can voluntarily recognise any duly registered Trade Union for the purposes of collective bargaining - or for that matter refuse to recognise it. If, however, the employer refuses to recognise a Trade Union which has greater than 50% membership of relevant employees then the Trade Disputes (Recognition) Act renders such recognition mandatory.

This is not to say that the Union with only 1% or 49% of employees as members cannot be recognised. If an employer wishes to recognise and negotiate with a collective bargaining agent with a content of only 1% of employees, as members, then so be it.

Accordingly, even if CAWA does not have 50% members CAAF is not in breach by recognising it for collective bargaining purposes. I thus decline to make the declarations sought.

As a result of the above, I decline to order the injunction.

The original summons is therefore dismissed in its entirety.

I make no order as to costs.

I feel constrain to remark on the expressed opinions expressed by Counsel at hearing, that the above ruling was of some great importance. With respect, I do not see any great significance in the legal issues raised herein. In fact I think the Applications and actions of all the parties hereto to be somewhat ill-considered. I can understand the underlying agenda in terms of Industrial politics but the issues of law are, to my mind, very clear.

I well understand that, with the approach of the new millennium and its fast changing world, industrial politics (in fact politics in every sense) are under great challenge. But the greater the challenge the greater the need to carefully consider strategy and responses. I intuitively feel that this matter may get out of hand unless a steady, considered approach is adopted by all parties.

If my intuitive feeling is correct, and the within matter reflects certain "manoeuvring" may I make a plea to all parties for caution. The Courts of law are the last resort for such matters.

It would be safe to conclude humankind is about to enter an era of great change - perhaps the most profound since the Industrial Revolution succeeded Feudalism. Fiji will not escape the effects of this change.

With such all encompassing change comes a human cost and a consequential social disruption.

In the rush to corporatise, privatise, enterprise and collectively bargain (and other "catch phrases" which all have different applications to different situations) it is important not to lose sight of the lessons of history. In the context of modern work practices history illustrates that negotiations and consideration between employer, employee and employee organisation brings greater productivity, work safety, security and increased living standards. It would be a great shame if these human gains were lost in a reckless charge into an uncertain future.

A cautious and respectful eye should be had to the horizon for as history has repeatedly shown, in times of social disruption brought about by profound change, what are mistakenly taken as the approaching clouds of that change are rather the trail dust from the steeds of the apocalyptic horsemen.

I again stress to all parties in this matter to exercise considerable caution and to appreciate the role that each has and will have in the development of the modern Fiji.

J. D. LYONS
JUDGE

HBC0206D.97L