Home | Databases | WorldLII | Search | Feedback High Court of Fiji

State v Minister for Labour, Industrial Relations & Productivity [2005] FJHC 19; HBJ0004.2005 (3 February 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ 4 OF 2005

BETWEEN:

THE STATE

v.

THE MINISTER FOR LABOUR, INDUSTRIAL
RELATIONS & PRODUCTIVITY
1ST RESPONDENT

THE ATTORNEY-GENERAL OF FIJI
2ND RESPONDENT

THE HOLIDAY INN
3RD RESPONDENT

EX-PARTE: NATIONAL UNION OF HOSPITAL CATERING & TOURISM INDUSTRIES EMPLOYEES
APPLICANT

Dr Sahu Khan with Ms S. Sahu Khan for the Applicant
Ms T. Vuibau for the 1st Respondent
Ms N. Karan for the 2nd Respondent
Mr. G. Leung for the 3rd Respondent

RULING ON LEAVE AND STAY

This matter was argued before me at length on 1st February 2005. The 3rd respondent had been served with papers as an affected party but was deleted from the proceedings by consent as the issue of legality of minister’s order did not concern it directly. I understand from parties that the workers are still on strike; the Holiday Inn would continue to suffer and visitors would be inconvenienced. Counsels made helpful submissions.

BRIEF FACTUAL BACKGROUND:

One Sevanaia Naliwa who was a member of the applicant Union was dismissed in December 2003 for allegedly throwing a punch at a fellow worker during the Christmas party. The allegations levelled against Naliwa were disputed. The applicant reported the existence of a trade dispute to the Permanent Secretary under the provisions of Section 3 of the Trade Disputes Act Cap 97. However, once the report was lodged, the Permanent Secretary (CEO) was bound to consider the trade dispute and take any one of the steps stated in Section 4 to promote settlement. The Permanent Secretary rejected the report as he was entitled to do under Section 4(1)(a). The relevance of report being rejected is that it is deemed that no report had been made. The consequence of this is that the provisions of Section 5, and 6 of the Act cannot be invoked.

The reason given for rejecting the report is contained in annexure E which is the letter dated 25th June 2004 stating that the parties had failed to adhere to the Grievance Procedure of the collective agreement.

The upshot of this was that on 17th September 2004 the applicant gave 21 days notice to hold secret ballot for a strike mandate. On 24th December 2004 the union gave notice to the first respondent of its intention to take strike action on 25th January 2005

“in furtherance of a trade dispute in existence between the union and the Holiday Inn on the unfair and unjust termination of Mr. Sevanaia Naliwa”.

On 25th January 2005, the first respondent purportedly acting under Section 10(1)(a) of the Trade Disputes Act declared the strike unlawful. Section 10(1)(a) reads:

“10. - (1) Where it appears to the Minister that there is an actual or a declared strike, lock out or boycott in any trade or industry or section of industry and the Minister is satisfied –

(a) that the strike, lock out or boycott has any object other than or in addition to the furtherance of a trade dispute within that trade or industry or section of industry;

the Minister may by order declare any strike, lock out, or boycott, whether actual or declared, in that trade or industry or section of industry to be unlawful.”

There are three different sections under which the Minister has powers to declare a strike, lock out or boycott unlawful. These sections are 8, 9 and 10 of the Act. Each section applies to a different fact situation.

Section 8 covers situations where the Minister is satisfied that the grievance procedures under collective agreement or settlement procedures laid in the Act have not been exhausted before a strike was declared by a Union.

Section 9 covers situations where the Minister is satisfied that matters subject of trade dispute have been settled or some award is still in force. This would arise in situations where parties for example have agreed to resolve issues by certain date pending which time neither party would indulge in strike action or lock out and one of them back tracks on that deal.

Section 10 is headed sympathy and certain other strikes. It is aimed not at the immediate protagonists but others who are not directly involved in the trade dispute but who are minded to go on a strike or lock out to force a result. The primary purpose of such a strike is to show solidarity among unions. Section 10 is aimed at such strikes.

The strike in the present case was declared without the grievance procedure being followed. The parties agree that is so. The Order by the Minister in its recital says “whereas a trade dispute exists” between the Holiday Inn as employer and the applicant union. He does not say that the strike had its object other than or an addition to the furtherance of a trade dispute. The strike in the present case is not a sympathy strike. The Minister must be satisfied as to that prerequisite before he can invoke his powers under Section 10. The undisputed facts do not meet that prerequisite so Section 10 could not have been invoked.

For the sake of completeness I must say the Minister could have declared the strike unlawful under Section 8 as grievance procedure had not been invoked. Having done that he could have then resorted to Section 6(2) and refer the dispute for arbitration. Support for above view can be found in the judgment of Justice Scott in State v. The Registrar of Trade Unions ex-parte Fiji Bank and Finance Sector Union – HBJ 15 of 2002 where he stated as follows:

“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). When a dispute has been so referred the Minister can in addition prohibit the continuation of any strike already in existence.”

The applicant has sufficient interest in the matter before me. It has also presented a strong arguable case.

Accordingly I grant leave to the applicant for judicial review of the Minister’s decision dated 24th January 2005 and I further order that pending determination of substantive matter no action be taken against the fifty members of the applicant union by the first respondent.

[ Jiten Singh ]
JUDGE

At Suva
3rd February 2005