IN THE HIGH COURT OF FIJI
(AT SUVA)

JUDICIAL REVIEW NO. HBJ 0015 OF 2002S

THE STATE

v.

THE REGISTRAR OF TRADE UNIONS
Respondent

ex parte

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION
Applicant

J. Apted for the Applicant
Y. Singh for the Respondent

JUDGMENT

The Applicant (the Union) moves for judicial review by leave granted on 16 July 2002. Although the particular industrial dispute which gave rise to the application was subsequently resolved I am of the view that the question of law identified by the Union is one of general public importance and therefore adjudication is warranted (see R.K. Naidu v. Attorney General ABU 39/98).

Put narrowly, the question is whether a trade union which has not reported a trade dispute is entitled to the appointment by the Registrar of Trade Unions (the Registrar) of a supervisor of a secret ballot to be held by the union to obtain a mandate for a proposed strike.

More broadly, the question is whether the Registrar’s decision to answer the narrow question in the negative has placed a further fetter on the right to strike.

Two affidavits were filed:

(i)	Diwan Shankar, trade unionist, in support 7 May 2002; and
(ii)	Brian Singh, Registrar of Trade Unions, in opposition, 22 October 2002.

Both counsel also filed helpful and comprehensive written submissions.

While Fiji is not a party to the International Covenant on Economic, Social and Cultural Rights, Article 8.1 (d) of which ensures:

“the right to strike, provided it is exercised in conformity with the laws [of the party]”

it is not in doubt that sections 1, 24 (1), 32(1) and 33(1), (2) and (3) of the 1997 Constitution together protect the fundamental human right to withdraw one’s labour.

As with many other human rights, the right to strike is subject to qualifications and some of these are set out in Section 33 (4) of the Constitution which provides that:

“A law may limit or authorise the limitation of the rights set out in this section:

(a)	in the interest of national security, public safety, public order, public morality or public health;
(b)	for the purpose of protecting the rights and freedoms of others; or
(c)	for the purpose of imposing reasonable restrictions on members of a disciplined Force;

but only to the extent that the limitation is reasonable and justifiable in a free and democratic society.”

The laws (which for present purposes I take to include subsidiary legislation) which are relevant are the Trade Unions Act (Cap 96), the Trade Unions Regulations (“the Regulations” - Cap 96 – Subs) as amended by the Trade Unions Regulations (Amendment) Regulations 1991 (LN 58/91) and the Trade Disputes Act (Cap 97).

The Union is a trade union which has been registered under Section 6 of the Trade Unions Act. Under section 37 (1) of that Act the rules of the Union must provide for all the matters specified in the schedule to the Act. Item 13 of the schedule requires provision to be made in the union’s rules for:

“13 - 	the taking of decisions by voting members of the trade union by secret ballot on …

(d)	all matters relating to strikes and lockouts.”

Under regulation 10 (1) of the Regulations the secret ballot is to be supervised by the Registrar or his nominee. The Registrar is appointed by the minister under the provisions of section 3 (1) of the Trade Unions Act.

Regulations 10 (2), 10 (3) and 10B set out the procedures which must be followed when a secret ballot is taken for a proposed strike. Regulation 10B (1) (a) emphasises that:

“the ballot shall be held before a trade union authorises or endorses a call for strike action;”

The consequences of not following the procedures set out in the Regulations are severe. Under regulations 10A(b):

“any strike action taken by any union member before the result of the ballot has been declared and the requirements of these regulations are complied with shall be deemed unlawful and an offence under this part punishable with a fine not exceeding one thousand dollars or a term of imprisonment not exceeding twelve months or both such fine and imprisonment.”

On 25 February 2002 Mr. Dewan Shankar wrote to the Registrar (Exhibit DS 4). He advised the Registrar that the union wished:

“to take mandate for a strike action by our members for ….. delaying tactics (by Life Insurance Corporation of India) and failure to negotiate and settle the Union’s log of claims 2001.”

On 5 March 2002 the Registrar replied. He advised that:

“this office will not be supervising the counting of ballots ….. The reason being that the issue of 2001 log of claims has not been reported and accepted as a trade dispute in accordance with the Trade Disputes Act, Cap 97.”

The relevant provisions of the Act referred to by the Registrar, the Trades Disputes Acts must briefly be considered.

Under Section 3 (1) of the Trade Disputes Act a trade dispute “may” be reported to the Permanent Secretary for Labour. Reporting a trade dispute is not compulsory.

If a trade dispute has been reported to and been accepted by the Permanent Secretary then Section 4 (1) provides the Permanent Secretary with a whole range of steps which can be taken in order to promote settlement of the dispute. Section 5 also allows the Permanent Secretary to make use of any machinery or arrangement already in existence between the parties as an aid to the settlement of the dispute.

Where the Permanent Secretary’s use of Sections 4 and 5 is not met with success the Permanent Secretary is required by Section 6 (1) to report the matter to the Minister who, with the parties consent, can refer the dispute to arbitration.

If none of the parties to a trade dispute reports the existence of the dispute to the Permanent Secretary then Sections 4 and 5 and their conciliating provisions do not apply. Section 6(1) does not apply either since its operation is dependent on the previous operation of Section 4 and, optionally, Section 5.

Section 6 (1) however is followed by the important section 6 (2) which introduces a new element of unlawfulness. Under this section the Minister may, in three circumstances, direct compulsory arbitration of a dispute whether or not the dispute was previously reported. The first circumstance, which occurs following a section 8 declaration by the Minister is relevant to this case.

Under Section 8 the Minister can declare a strike to be unlawful where he is satisfied that all practicable means of settling the dispute, including a grievance procedure included in a collective agreement have not been employed. Where the Minister declares a strike to be unlawful in these circumstances he can refer the dispute to compulsory arbitration under Section 6 (2) (c). When a dispute has been so referred the Minister can in addition prohibit the continuation of any strike already in existence.

Before considering the reasons advanced by the Registrar in his affidavit for refusing the Union’s request to appoint a secret ballot supervisor it must be understood that the role and functions of the Registrar who holds an office created by the Trade Unions Act are specific to and limited by that Act. The role and functions of the Permanent Secretary for Labour which are given to the Permanent Secretary by the Trade Disputes Act are quite different and really have nothing to do with the Trade Unions Act at all. As pointed out by Mr. Apted there is no requirement that the Registrar and the Permanent Secretary be one and the same person, although at present Mr. Singh holds both offices. In my view the apparent conflation of the two offices which occurred in this case and which is evident from the Registrar’s affidavit led to an erroneous approach being adopted.

In his affidavit the Registrar offered two reasons for not complying with the Union’s request. The first was that no trade dispute had been reported to him. The second was that the Union, by moving towards strike action before reporting a trade dispute did not appear to be following the grievance procedure in existence between itself and the Life Insurance Corporation of India.

I do not think that the first reason was valid since there is no requirement in the Trade Unions Act or the Regulations thereto that a dispute be first reported before the appointment of a secret ballot supervisor is sought. In the absence of such a specific requirement I take the view that a Union is entitled to hold a ballot complying with the Regulations whether or not the provisions of any other Act have been invoked.

The second reason advanced by the Registrar depends on Section 5 (1) of the Trade Disputes Act. In paragraph 15 of the affidavit the Registrar suggested that the Section:

“is explicit in that all parties to a trade dispute must make use of any existing machinery for the settlement of an existing dispute by virtue of the agreement made between the parties concerned.”

With respect, I do not read Section 5(1) in that way. As already noted the Section only deals with disputes which have already been reported under Section 3 whereas at all material times the dispute under consideration remained unreported. Secondly, the Section, as already noted, merely gives the Permanent Secretary the right to use existing grievance procedures, if thought appropriate, as a means of attempting to secure settlement. Section 5(1) does not deal with unreported trade disputes and contains no element of compulsion.

It appears that the Registrar has confused Section 5(1) with Section 8. This latter section however has no application to this case either since it was not the case that the Minister ever declared any actual or declared strike arising out of a dispute between these parties to be unlawful. Once again, it seems that the Registrar misdirected himself by directing his attention to another Act, the Trades Disputes Act, when responding to a request to discharge a duty vested in him not under that Act but under another Act entirely, the Trade Unions Act.

In paragraph 4.38 of his written submission Mr. Apted argued that the new requirement introduced by the 1991 Amendment Regulations was not intended to curtail the rights of union members. I agree. As already pointed out, the Trades Disputes Act does not make it compulsory to report a trade dispute. This means that subject to Sections 6 (2), 8 and 9 a union may proceed to strike action whether or not the dispute has been reported. If the Registrar’s interpretation were correct then Regulation 10 (1) of the 1991 amendments which inserted the Registrar into the secret ballot process would have the effect of giving the Registrar a right to veto a union’s plan to seek a mandate for strike action in an unreported dispute. I do not think such a fundamental amendment to a quite separate Act can be introduced by regulation.

As noted at the outset, the actual dispute between the Union and the employer which led to the Union’s request to the Registrar was in fact settled and no strike was called. Nevertheless, I find it appropriate to declare that where a union requests the appointment of a supervisor under the provisions of regulation 10(1) of the Regulations neither the fact that the Union appears to be in breach of a collective agreement nor the fact that the 

Union has not reported a trade dispute to the Permanent Secretary for Labour is a sufficient ground to refuse the Union’s request.

M.D. Scott
Judge

30 April 2003