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Fiji Bank Employees Union v Housing Authority [1999] FJHC 148; Hbj0022.1999 (14 May 1999)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO. HBJ 0022 OF 1999

BETWEEN:

FIJI BANK EMPLOYEES UNION
Applicant

AND:

HOUSING AUTHORITY
Respondent

Counsel: Sir Vijay Singh for the Applicant
R. Naidu for Respondent

Hearing: 13th May 1999
Decision: 14th May 1999

DECISION ON APPLICATION FOR LEAVE TO APPLY
FOR JUDICIAL REVIEW

The applicant has applied pursuant to Order 53 Rule 3 of the High Court Rules for leave to apply for Judicial Review of the following decisions of the Respondent.

1. The Respondent's decision of 4^th March 1999 to give the Fiji Bank Employees Union qualified recognition under the Trade Unions (Recognition) Act.
   
2. The Respondent's decision of 16^th March 1999 requiring the Union to ratify a collective agreement between the Authority and the former Housing Employees Association.
   
3. The Respondent's decision of 4^th May 1999 to revoke voluntary recognition of the Union failing ratification of the collective agreement.
   
4. The Respondent's decision of 30^th April 1999 requiring two permanent employees to sign contracts of employment with the Respondents.
   

The Applicant also applied for an interim injunction to restrain the Respondents from taking any action relating to the conversion of permanent employees to contract employees.

The court directed that the applications be heard inter parties.

The Respondent opposes both the application for leave, and for interim relief. The grounds of opposition are that Judicial Review is not the appropriate procedure in a case such as this which is essentially a private law matter. Mr Naidu for the Respondent cited the case of Praveen Prakash Palani and Fiji Electricity Authority Association and Fiji Electricity Authority Civil Appeal No. HBU0028/96 and the decision of Pathik J in the Housing Employees Association and The Housing Authority Judicial Review No. 13 of 1997 to support his submissions. He further argued that there were a number of alternative remedies provided under the Trade Unions (Recognition) Act 1998, and the Trade Disputes Act Cap. 97, Laws of Fiji, which the Applicant had not exhausted. He further argued that if there was no basis for the Judicial Review action, then the application for interim relief must also fail.

Finally he submits that in any case, there is no suggestion that any employee is to be terminated pending this application, and that therefore there is no serious mischief or urgency to justify an interim injunction.

Sir Vijay Singh submitted that even if the situation was one of master and servant, the terms of the contracts provided to employees of the Housing Authority appeared to be in breach of section 33 of the Constitution which provided that every person has the right to fair labour practices. As such he was also seeking a declaration that the conduct of the Authority was in breach of this provision. He argued that he could use Order 53 procedures, since the procedures under the High court (Constitutional Redress) Rules 1998, were identical in form. As such he was seeking both leave and an interim injunction.

In an application for leave to apply for judicial review, the court is required to consider, whether the applicant has standing and whether the application discloses an arguable case. However, in this case the issues are whether the decisions of the Authority are decisions susceptible to judicial review at all, and whether leave should be granted if there are alternative remedies.

Public Law Remedies:

The affidavit of Pramod Rae in support of the Application for Leave, states that the Housing Authority is a statutory corporation established by the Housing Act Cap. 267 and that it employs persons who are members of the Respondent Union. There was formerly a collective agreement between the former Housing Employees Association and the Authority. The Respondent Union had asked for voluntary recognition of the Union by the Authority and the Authority had agreed on condition that membership of the Union should exclude contract employees of the Authority. The Authority also asked the Union to ratify the collective agreement that had been in force in relation to the defunct Housing Employees Association. The parties were unable to agree to voluntary recognition on these terms and on 31 March 1999 the Union referred the matter to the Permanent Secretary for Labour and Industrial Relations, requesting compulsory recognition under the Trade Unions (Compulsory Recognition) Act 1998. The Permanent Secretary has yet to make a decision on the matter. However in the meantime the Authority has taken steps to convert some employees to contract employment status.

The question is whether this situation can give rise to a public law remedy.

The Fiji Court of Appeal held in Praveen Prakash Palani and Fiji Electricity Officers Association and Fiji Electricity Authority (supra) that judicial review is not available where the issue is a private law obligation. In considering whether the appellant=s dismissal by the Fiji Electricity Authority could be the subject of judicial review proceedings, the Fiji Court of Appeal said that the mere fact that the Authority was created by statute was not sufficient to inject the necessary element of public law into the master and servant relationship. The court said:-

"Walsh's case makes it clear that the mere fact of Mr Palani being employed by a public statutory authority is not sufficient. The fact that the second appellant is a trade union does not appear to us to bear upon the question and the only relevance of the Trade Disputes Act Cap. 97 appears to be that the collective agreement was registered pursuant to Section 34 and this imported the provisions of the collective agreement into Mr Palani's contract of employment with the authority."

The Court of Appeal found that the Appellant was in a pure master and servant employment situation and that his remedy was in private law rather than public law.

This decision was relied on by Pathik J. in Housing Employees Association and Housing Authority Judicial Review No. 13 of 1997 in relation to an application by the Association to judicially review the decision of the Authority to make its employees redundant.

In that case, Pathik J. found that: ". . . . although the Housing Authority is a public statutory body, the terms and conditions of employment of the members of the Applicant's Association are governed by the Agreement. This is akin to the case of a purely master and servant relationship in the private sector and the situation here amounts to a pure employment situation and judicial review has no place."

Applying the same considerations in the immediate application, I can find no material in the application and supporting affidavit that injects a public law element into the master/servant relationship. Although the collective agreement that formerly existed between the Authority and the Housing Employees Association has now lapsed, the relationship between the Authority and its employees fails to show anything other than a pure employment situation. Thus any attempt to review the Authority's decision to convert terms of employment into contractual terms and conditions through Order 53 procedures would be doomed to failure. At leave stage, the question for the court is whether the grounds are arguable and fit to be considered at a substantive hearing. The Court of Appeal said in National Farmers Union -v-Sugar Industry Tribunal Civil Appeal No. 8 of 1990 that:

"A ready test for deciding this question is whether any particular ground could properly and reasonably be characterised as frivolous, vexatious or hopeless in the sense of being patently devoid of merit."

In my view the ground (numbered 4 of the Application for Leave) seeking the review of Authority's decision to vary the terms of employment of its employees fails to disclose a public law element and is bound to fail.

Sir Vijay Singh argued that the terms of the proposed contracts and of the condition imposed in relation to voluntary recognition of the Union were in breach of the Constitution, and that the Court could consider making a declaration accordingly.

The procedures for seeking a declaration under the Constitution are laid down in the High Court (Constitutional Redress) Rules 1998.

Whilst the procedures may be similar to Order 53 procedures, any application must be made by motion and affidavit with provisions for service on the Attorney-General.

Any application for constitutional redress must be made pursuant to those rules.

Alternative Remedies:

The affidavit of Pramod Rae shows that the issue of voluntary recognition was referred to the Permanent Secretary on 31^st March 1999. The Trade Unions (Recognition) Act 1998 provides for procedures for the recognition of trade unions. Those procedures have not been exhausted by the Applicant.

Furthermore the Trade Disputes Act Cap. 97 provides for the reporting of trade disputes to the Permanent Secretary for Labour and Industrial Relations. A trade dispute is defined by section 2 of the Act as:

"any dispute or difference between employers and employees, or between employees and employees or between employees and any authority or body connected with the employment or non-employment, or with terms of employment, or with the conditions of labour, of any person."

The Trade Disputes Act has its own procedures for the reporting of and setting of trade disputes. These procedures have not been utilised or exhausted. The availability of alternative remedies can be considered in applications for leave to apply for Judicial Review (Reg -v- Hillington London Borough Council ex-parte Royco Homes Ltd. (1974) QB 720).

For these reasons I am of the view that in relation particularly to Grounds 1, 2 and 3 of the Application for Leave, the alternative procedures under the Trade Unions (Recognition) Act 1998, and the Trade Disputes Act Cap. 77 should have been utilised. The issues raised in this application can be fully ventilated using those statutory provisions.

The application for Leave to apply for judicial review is dismissed with costs to the Respondent which is to be taxed unless agreed.

[N Shameem]
JUDGE

At Suva
14^th May 1998