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Fiji Public Service Association v Ports Authority of Fiji [1997] FJHC 255; Hbc0386d.97l (27 November 1997)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0386 OF 1997L

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
Plaintiff

AND:

PORTS AUTHORITY OF FIJI
Defendant

Mr A Singh for the Plaintiff
Mr R. Naidu for the Defendant

Date of Hearing: 27th November 1997
Date of Ruling: 27th November 1997

RULING

The FIJI PUBLIC SERVICE ASSOCIATION (FPSA) has applied to this Court for declarations in respect of its relationship with the PORTS AUTHORITY OF FIJI (PAF).

The FPSA is, as a Trade Union, the collective bargaining agent for the employees (both salaried and unestablished of PAF).

The material before me is the Affidavit of Mr N. SINGH filed on the 9th November 1997.

Although the substantive cause of action seeks declaratory relief Mr NAIDU for PAF, was not in a position to argue same and that was adjourned to a date to be fixed.

Mr A. SINGH Counsel for or FPSA submitted argument on an interim injunction seeking relief very much in line with the declarations sought.

As is usual with these matters (as Mr NAIDU pointed out in response), argument for injunctive relief often follows directly on issues relevant to the substantive cause of action - in this case, very much so.

In line with a general sentiment sweeping Government organisation, perhaps worldwide, PAF is undertaking the process of restructure. This, I accept, may or may not involve re organisation of manpower. Most likely it will.

As a result, PAF wrote to all its employee on 21st October 1997 (Circular 6/97) advising that it proposed a "voluntary service of employment (VSE) scheme" to cater for the restructure of manpower members in connection with the current re-organisation exercise.

The scheme proposed payment of severance pay at the rate of 1.5 years basic salary plus 4 additional weeks salary for every completed year of services.

The letter said that applications to sever employment was to be received by 4.00pm on the 4th November 1997.

It seems some employees have made such an application. Some of these remain current. Some (as evidenced by annexure 40 Mr N. SINGH's Affidavit) have withdrawn their application. Quite rightly PAF has accepted this withdrawal and, I suppose, will only proceed to deal with those applications which have not been withdrawn.

Similarly, as the Court was advised by Mr A. SINGH, FPSA does not intend to restrict rather PAF nor the applications from completing the severance arrangement - That is, the one's who have not withdrawn. In fact this reflects the position of FPSA as advised in their letter to PAF of the 30th October 1997 which states:-

"We outline below, our position on the reorganisation of PAF .....................

There shall be no redundancy except by the voluntary will of an employee wishing to terminate his/her employment in which event he/she shall be paid compensation as offered in PAF Staff Circular NO. 6/97 of 21st October 1997."

In short, the FPSA agreed to allow the acceptance of the proposal (by way of voluntary application) of the 21st October 1997. In so doing, FPSA is, quite correctly in my view, recognising the individual rights of its members to voluntarily agree with PAF on terms of severance.

Indeed, to do otherwise, is for the Union, FPSA, to take the role of telling its members (its principal) what to do. This of course a Union cannot do. It is the members who instruct the Union, not vice versa.

Despite advising PAF in terms of its letter of 30th October, 1997, FPSA did another correspondence (the date of which is undecipherible), to question the efficacy of Circular 6/97 of 21st October 1997.

The FPSA then claimed that the VSE proposal was in fact a redundancy package and as such was not negotiated with Union approval, it was contrary to the Collective Agreement. (By way of curiosity, I am inclined to the view that this correspondence is dated earlier than the 30th October - It looks like 29th October).

The FPSA now seeks to restrain the PAF from offering a redundancy and or severance package without following the procedures set aside in the Award Agreement between the two.

Such an application must fail if based on the material before me.

There is no evidence that a redundancy package is in fact being offered. A severance proposal has been put, but that is not a redundancy package. The difference is that severance carries without a voluntary application by the employee. Redundancy requires compulsion.

That is to say: In respect of severance the employee, of his or her volition, comes to terms with an employer to quit work. I do not see that a union has any right to interfere with this. In fact the FPSA implicitly acknowledges this in its letter of the 30th October 1997.

Redundancy is a different matter. Redundancy occurs when an employee's work is terminated by the employer because the position held is superfluous to the needs of the employer (See MAZENGARBS EMPLOYMENT LAW VOL 1 para 1202 and following). In the matter now before me, there is no element of compulsory termination and hence no redundancy. The provisions of the Collective Agreement or Award are thus not invoked.

There is consequently no issue before this Court.

Further, if the point in issue is the circular 6/97, the applications for that have closed on 4/11/97.

There is no evidence that further applications will be considered or that a further proposal has been put.

Both parties agree that those who have withdrawn the application and those who have not, will be treated in accordance with their wishes.

I pose the question - What are the parties arguing about? The proposal has been put and the time for applications passed. Those who still wish to have their application considered can do so. PAF can go ahead. There is no desire by FPSA to restrain that. And of course there will be no further applications to restrain. Those application closed on 4th November, 1997, the day before this application was first brought to Court.

There is simply nothing to restrain.

There is no issue to be tried. There is no redundancy package in evidence. By FPSA's own admission, there is only an acceptable voluntary serving proposal. And the time for closing the door on that proposal (if I were so minded, which I am not) has passed.

Furthermore neither party intends to interfere with those employees who accepted it.

The application is premature.

I decline to order an interim injunction as there is no issue to be tried.

I award costs to the Defendant in the sum of $250.00.

Application for injunction dismissed.

JOHN D. LYONS
JUDGE

HBC0386D.97L