IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Action No. HBJ15 of 2007

IN THE MATTER of an Application by FIJI PUBLIC SERVICE ASSOCIATION
for a Judicial Review under Order 53 of the High Court Rules of Fiji 1988

AND

IN THE MATTER of the Decision made by the PERMANENT SECRETARY
OF LABOUR, INDUSTRIAL RELATIONS, TOURISM AND ENVIRONMENT
made on or about the 8th day of May 2007 whereby he purported to accept a Trade
Dispute reported by NATIONAL UNION OF TRADE UNION WORKERS

BETWEEN:

THE STATE

AND:

PERMANENT SECRETARY OF LABOUR, INDUSTRIAL
RELATIONS, TOURISM AND ENVIRONMENT
First Respondent

AND:

NATIONAL UNION OF TRADE UNION WORKERS
Second Respondent

AND:

ELIZABETH DASS
Third Respondent

EX PARTE:

FIJI PUBLIC SERVICE ASSOCIATION
Applicant

Coram: Hickie, J

Date of Hearing: 13 October 2008

Appearances: Mr H. Nagin for the Applicant
Ms K. Naidu for the First Respondent
Mr Lateef with Ms D. Prakash for the Second & Third Respondents
Written submissions filed by Dr S. Shameem as Amicus Curiae

Date of Decision: 17 October 2008

JUDGMENT

A. THE BACKGROUND

[1] This is a matter which I have been advised by Counsel for the parties is of a similar nature to a recent judgment I handed down on 8 October 2008 in State v Permanent Secretary of Labour, Industrial Relations, Tourism and Environment & 2 Ors; Ex parte New India Assurance Company Limited ("New India Assurance") (Unreported, High Court of Fiji at Suva, Civil Action No. HBJ 22 of 2008, Hickie J). That being the case, I will attempt to set out this judgment in the same format as that of the judgment in New India Assurance to allow easy reference and comparison for the parties.

[2] On 31 March 2005, a Collective Agreement was signed between the NATIONAL UNION OF TRADE UNION WORKERS (the "Second Respondent") and the FIJI PUBLIC SERVICE ASSOCIATION (the "Applicant"). It is not in dispute that the said document was then registered with the Permanent Secretary for employment and industrial relations. Clause 6.3 of that Collective Agreement states:

"Compulsory Retirement - the compulsory retiring age shall be sixty (60) years. After the age of 60 years, an employee's services may be retained on contract, renewable on an annual basis but not withstanding the provisions already stipulated in Article 1.2.1"

Article 1.2.1 states:

"Where it is considered necessary, the FPSA may contract out or make temporary appointments for the purpose of carrying out specific tasks in consultation with the NUTUW for substantive post holders who have turned sixty (60) years and over and/or for temporary reliving positions. Any such appointments shall not exceed a period of Twelve (12) months without the agreement of both parties."

[3] On 16 March 2007, the National Council of the Applicant decided to retire ELIZABETH DASS (the "Third Respondent") in accordance with Clause 6.3 of the Collective Agreement. A formal retirement notice was issued by the Applicant to the Third Respondent on 16 April 2007 advising of the National Council's decision of 16 March 2007 and that she was being given a month's notice that she would be retired from the Association on 16 May 2007.

[4] On 24 April 2007, the Second Respondent wrote on behalf of the Third Respondent to the Applicant that "she has advised the Association that she does not wish to retire but to continue on her employment". Attention was also drawn to the judgment Fiji Human Rights Commission v Suva City Council (Unreported, High Court of Fiji at Suva; Civil File No. HBC0073.2004, 17 November 2006, Coventry J) (PacLII: [2006] FJHC 44, http://www.paclii.org/fj/cases/FJHC/2006/44.html) wherein the Second Respondent alleged that:

"High Court ... declared compulsory retirement provisions in a collective agreement void and unenforceable as it constituted discrimination on the grounds of age and offended the Constitution of Fiji".

Thus, the Second Respondent implored the Applicant "to withdraw Mrs Dass's [sic] retirement notice and allow her to continue in her employment" and, in addition, "humbly requested [the Applicant] not to enforce any further retirements in pursuance to relevant retirement clauses stipulated in our collective agreement as such clauses are now void".

[5] On 24 April 2007, the Second Respondent wrote to the PERMANENT SECRETARY OF LABOUR, INDUSTRIAL RELATIONS, TOURISM AND ENVIRONMENT (the "First Respondent") that pursuant to Section 3 of the Trades Disputes Act, they wished "to report the existence of a Trade Dispute" being "the employers actions to forcefully retire Mrs. Dass on the grounds of age" which the union views "as unreasonable and unfair as well as discriminatory and unconstitutional and seeks the immediate withdrawal of notice and that Mrs. Dass be allowed to continue with her employment".

[6] On 25 April 2007, the Applicant replied to the Second Respondent suggesting "that you read the High Court Judgment [in Fiji Human Rights Commission v Suva City Council] again to ascertain where in the judgment the Judge states that retirement provisions in Collective Agreements ... are void and unenforceable" and that "on the contrary the Judge specifically states ... that it be renegotiated".

[7] On 1 May 2007, the First Respondent advised the Second Respondent (with a copy to the Applicant) that he had accepted the report of a trade in accordance section 4(1)(a) of the Trades Disputes Act [Cap 97] "and in terms of paragraph (h) of the said Section refer the dispute to a Disputes Committee" and asking both the Second Respondent and Applicant to each recommend an independent person to represent each body respectively on the said Disputes Committee.

[8] On 11 May 2007, the Applicant's solicitors wrote to the First Respondent alleging "fast tracking" of the dispute and asking that the First Respondent review his decision "and refer the matter for legal opinion and subsequently refer the matter back to the parties".

[9] On 15 May 2007, the First Respondent advised the Second Respondent (with a copy to the Applicant) that he had accepted the report of a trade dispute in accordance section 4(1)(a) of the Trades Disputes Act [Cap 97] "and in terms of paragraph (h) of the said Section refer the dispute to a Disputes Committee" and asking both the Second Respondent and Applicant to each recommend an independent person to represent each body respectively on the said Disputes Committee.

B. THE APPLICATION

[10] An Application for leave to reply for Judicial Review was filed on 15 June 2007 with leave granted by Coventry J on 20 June 2007. The matter then came before the Master on 30 July, 10 September 2007, 11 October, and 1 and 12 November 2007. It was then listed before me in a general call-over on 14 March 2008 whereupon an Order was made that the Fiji Human Rights Commission ("FHRC") be invited to appear as Amicus Curiae and the matter put over before the Master on 8 April 2008. The matter then came before the Master again on 6 May, 10 June and 1 July 2008, whereupon it was adjourned before me on 8 July 2008 to allocate a hearing date which was done and the matter was listed for hearing on 13 October 2008.

[11] The Grounds upon which the Applicant is seeking relief are, in summary, as follows:

(a) That the Permanent Secretary abused his discretion in that -

(i) He did not take into consideration the following

• That the Third Respondent was 64 years of age and had gone past the retirement age.

• That the First Respondent failed to take into account that there was no breach of the Collective Agreement or of any "Trade Dispute".

• That the Second Respondent was raising constitutional issues that should have been dealt with the High Court and not under the "Trade Dispute" procedure

(ii) That he acted unreasonably and/or arbitrarily

(b) That the Permanent Secretary made the following errors of law-

(i) He misinterpreted the provisions of the Trade Disputes Act and the provisions of the Collective Agreement.

(ii) He failed to properly understand the definition of a trade dispute in the Trades Disputes Act.

(iii) He accepted the trade dispute in contravention of the Trades Disputes Act when there was no allegation of a breach of the collective agreement.

(iv) He failed to accept that a trade dispute cannot be accepted in relation to termination of contract of service in accordance with a Collective Agreement.

(v) The Second Respondent was raising constitutional issues which should be dealt with by the High Court and not under the "Trade Disputes" procedure.

(c) That the Permanent Secretary exceeded his jurisdiction and acted ultra vires the provisions of the Trade Disputes Act when he accepted the trade dispute on the 11 July 2007.

(d) That the Permanent Secretary acted contrary to the legitimate expectations of the Applicant in that he failed to reject the report of the trade dispute.

[16] The Affidavit in Opposition filed on behalf of the Second and Third Respondents also raises allegations concerning negotiations over a Log of Claims for 2006 as well as the Third Respondent being formally warned on 29 January 2007 for raising "issues about the safety of workers during the political crisis" of December 2006 which was later followed by the Third Respondent receiving her compulsory retirement letter of 16 April 2007.

[17] On 20 June 2007, the Proceedings Commissioner of the FHRC filed written submissions in her role as Amicus Curiae raising "the sole issue for the amicus" as: "Whether Fiji's Human Rights laws apply in this case?"

[18] In answering this question, the Proceedings Commissioner of the FHRC covered the following matters:

(a) Statute Law -

(i) The Constitution is the supreme law of the Fiji Islands and binds the State at all levels;

(ii) The Human Rights Commission Act ("HRC") "extends the constitutional rights provisions ... to the private sector";

(iii) Unfair discrimination on the basis of age is not permitted under section 38(2) of the Constitution and section 17 of the HRC Act;

(iv) The employment rights of workers are protected by section 33 of the Constitution and specifically section 33(2) "the right to bargain collectively";

(v) Section 22 of the HRC Act prohibits "victimisation" while a person is involved in any of the areas set out under section 17 of the HRC Act which prohibits discrimination in the area of employment.

(b) Case Law -

(i) Fiji Human Rights Commission v Suva City Council (supra) where Coventry J made the following points

• That a Collective Agreement is "law";

• That even the retirement age of 60 would be "unfair discrimination";

• That in Newfoundland Association of Public Employees v Newfoundland Hospital [1996] 2 SCR 3 it was stated that -

"Human rights legislation sets out a floor beneath which the parties cannot contract out. Parties can contract out of human rights legislation if the effect is to raise and further protect the human rights of the people affected. For example, a staff association comprising for the most part heterosexual males of one particular race could not conclude any kind of collective agreement which discriminated against persons of a particular sexual orientation or women or those of a different race. To allow this would mean those without bargaining power might be coerced or forced to give up their rights under human rights legislation."

(ii) Fijian Teachers Association and Fijian Public Service Association v Public Service Commission (Unreported, High Court of Fiji at Suva, Civil Action No. HBJ 3J of 2007S, 20 December 2007, Jitoko J) which discussed Section 38(7) of the Constitution which states -

"A law is not inconsistent with subsections (1), (2) or (3) [the equality provisions of the Constitution] on the ground that it ... (b) imposes a retirement age on a person who is the holder of a public office ... but only to the extent that the law is reasonable and justifiable in a free and democratic society"

It also discussed section 194 of the Constitution which states that -

"public office means:

(d) an office in a state service;

(g) an office in, or as a member of, a statutory authority"

Thus Jitoko found -

• That "all members of ... trade unions are holders of public office";

• That 'the burden is on the Respondents to show that the decision to lower the retirement age to 55 is reasonable and justifiable in a free and democratic society"; and

• That "to satisfy the Court that any of the grounds advanced are of a substantial and pressing nature to satisfy the test for application of exclusionary provisions under section 38(7) [of the Constitution]."

[19] In her conclusion, the Proceedings Commissioner's final submission is significant:

"The amicus' submissions is that the Commission and HRC Act, as well as interpretation of these statutes on the issue of unfair discrimination, on the ground of age, by Coventry J in the case of FHRC v SCC and Jitoko J in FTA and FPSA v PSC and AG show that it would be unlawful in Fiji to unfairly discriminate against any person, whether in public or private spheres, on the basis of her age irrespective of whether a discriminatory clause exists in any collective agreement between the parties. No one can contract out of the Constitution to remove rights guaranteed by the Constitution which is the supreme law of Fiji. Everything done in Fiji must be done consistently with the Constitution and human rights laws of the country. This case is no exception to that rule."

D. THE LAW

1. What is a 'trade dispute'?

[18] As I noted in my recent judgment in New India Assurance (supra), according to section 2 of the Trade Disputes (Amendment) Act, 1998, section 2 of the 1978 Act was amended as follows:

" 'trade dispute' means any dispute or difference -

(a) between any employer and a registered trade union recognised under the Trade Unions (Recognition) Act (Cap. 96A) and connected with the employment or with the terms of employment or the conditions of labour of any employee ..."

[19] Counsel for the Applicant in the present case has again submitted (as he did in New India Assurance) that "a Trade Dispute does not arise when one party says that a provision of the Collective Agreement is unconstitutional" as it "doesn't come within the definition of a Trade Dispute". The Court notes that in their written submissions the Applicant has not cited any evidence or case law in support of this ground.

[20] The First Respondent in reply has again submitted (as he did in New India Assurance) that the "current dispute falls under the ambit of part (a) under the definition of a trade dispute".

[21] The Second and Third Respondents have cited section 38(2)(a) of the Constitution that a person must not be discriminated against on the ground of their age, as well as section 17 of the HRC Act. They have also cited the judgment in Proceedings Commissioner, Fiji Human Rights Commission v Suva City Council (supra).

[22] At the hearing of this matter, Counsel for the Applicant cited two cases in support: Chief Executive Officer for Labour, Industrial Relations and Productivity v Fiji Public Service Association (Court of Appeal Fiji Islands, Civil Appeal No. ABU0084JR.2004, 11 November 2005, Scott, Wood and Ford JJA) (PacLII: [2005] FJCA 66, http://www.paclii.org/cases/FJCA/2005/66.html) on the issue of the role of the First Respondent, that is, as the Applicant's Counsel put it "he can't merely act as a rubber stamp"; and State v Chief Executive Officer of Labour &Industrial Relations and PAFCO Employees Union; Ex-parte Pacific Fishing Company Limited, High Court of Fiji at Suva, Civil Action No. HBJ 01 of 2007, 30 November 2007, Singh J) that "unions wishing to express a trade dispute, should ... refer to particular provisions in a collective agreement ... which has been breached and then give facts which show a breach ... or dispute or differences" and that the Chief Executive Officer of Labour & Industrial Relations "should have sworn an affidavit outlining facts" as he "is not there merely to rubber stamp the union's wishes".

[23] In relation to the "rubber stamp" submission as made by Counsel for the Applicant, the Court refers to Annexure "RS 9", Annexure "RS 11" and Annexure "RS 14" as annexed to the Affidavit of in Support of RAJESHWAR SINGH, the General Secretary of the Applicant Association, sworn on 14 June 2007. These documents, which are copies of letters dated 1, 8 and 15 May 2008, from the First Respondent to the parties, clearly show (amongst other matters):

(a) That the First Respondent did not act as some sort of "rubber stamp";

(b) That the First Respondent set out "that the dispute is over the Association's intention to terminate the employment of Ms. Elizabeth Dass through retirement ... pursuant to Clause 6.3 of your Collective Agreement"; and

(c) That the Applicant employer as being asked "to maintain the status quo and refrain from taking any action on the dispute until it is finalized [sic] by a Disputes Committee or the Arbitration Tribunal".

[24] In the present case (as in New India Assurance), the matter had been accepted as a trade dispute and had been referred to a Disputes Committee for hearing. It is again this Court's view (as was also held in that case) that the definition of what is a "trade dispute" is extremely wide being "any dispute or difference…connected with the employment or with the terms of employment or the conditions of labour of any employee ..." Therefore, the matter should have been allowed to "run its course" as a "Trade Dispute", before the Disputes Committee rather than the Applicant seeking Judicial Review before the Disputes Committee had been formed, held a hearing and made its determination. Only AFTER that determination, if a party was dissatisfied, should Judicial Review proceedings have been implemented.

[25] In addition, the Court notes that there is an allegation in the Affidavit in Opposition filed on behalf of the Second and Third Respondents concerning negotiations over a Log of Claims for 2006 as well as the Third Respondent being formally warned on 29 January 2007 for raising "issues about the safety of workers during the political crisis" of December 2006 - clearly all matters for a Disputes Committee to consider.

[26] It is the FIRST FINDING of this Court that the matter clearly came within the definition as set out in section 2 of the Trade Disputes (Amendment) Act, 1998, and thus the First Respondent correctly accepted the matter as a Trade Dispute.

2. What is the procedure for settlement of disputes?

[27] It is the Court's view that the First Respondent by his letter of 1 May 2007 to the Applicant, attempted to invite a response from the Applicant concerning the report of a trade dispute. Further, the First Respondent by its letter of 8 May 2007 to the Third Respondent (a copy of which was sent to the Applicant) advised:

(a) That he had accepted the report of a trade dispute in terms of section 4(1)(a) of the Trade Disputes Act; and

(b) That in terms of section 4(1)(h) he was referring the dispute to a Disputes Committee constituted under section 5A(2) of the Act for a decision and in that regard inviting the union and the employer to each recommend an independent person to represent each body respectively on the Disputes Committee.

In addition, as noted above, the First Respondent by his letter of 15 May 2007 again set out the details of the trade dispute and asked the Applicant employer "to maintain the status quo and refrain from taking any action on the dispute until it is finalized [sic] by a Disputes Committee or the Arbitration Tribunal".

[28] It is the SECOND FINDING of this Court that the First Respondent has clearly complied with the procedural requirements as set out in the Trade Disputes Act.

3. Has the Third Respondent by being the President of the Second Respondent Union which signed the retirement age clause in the Collective Agreement thus bound by her acceptance of it as 'fair' discrimination?

[29] This issue was raised at the hearing in the oral submissions by Counsel for the Applicant, that is, it was the Third Respondent who, as President of the Second Respondent, had negotiated the Collective Agreement with the Applicant employer and thus would have known about the Constitution when the Agreement was signed being signed some years after the provisions of the Constitution came into effect.

[30] In addition, Counsel for the Applicant drew the Court's attention to paragraph 32 of the judgment in New India Assurance:

"if unions do not re-negotiate such agreements and, as has been observed by the Proceedings Commissioner for the Fiji Human Rights Commission, 'tend to depend on the Human Rights Commission and court judgments rather than their negotiation mandates to protect their members from unfair discrimination of the grounds of age', the solution is not to penalise individual workers (who may then, in turn, need to take separate legal proceedings against their respective union for negligence)."

[31] As Counsel for the Applicant noted, as the Third Respondent was the President of the Second Respondent when the Collective Agreement was signed, she is the Union. On this issue, Counsel for the Third Respondent's reply was simply "So?" He submitted, that the Third Respondent was still an employee whose job was to represent employees and whether the Third Respondent was aware or unaware, the parties cannot put an illegal clause into any form of a Collective Agreement.

[32] The problem, as raised in the recent judgment in New India Assurance, is that the Applicant "is bound by section 17(1) and (3)(b) of the Human Rights Commission Act and section 38(2) of the Constitution". That is, as with any form of contract, one cannot, as it were, "contract out" of the provisions of the Constitution as the supreme law of the Fiji Islands.

[33] What then is the solution? As legal proceedings have now been are brought as a result of a discriminatory clause in a Collective Agreement which was consented to by the Third Respondent at a time when she was also President of the respective union and, in fact, she countersigned the Collective Agreement on the Union's behalf, then (as was also raised in New India Assurance) the Applicant is entitled to ask the Court to consider awarding costs against the other parties (and perhaps even indemnity costs) though this may prove difficult to sustain as a Collective Agreement is a joint agreement, or at least that each party be liable for their respective costs of the present action.

[34] In addition, as Counsel for the Applicant also submitted at the hearing, the First Respondent registered the Collective Agreement which he is now saying should be referred to a disputes committee as a Trade Dispute. As was also noted by the Court, this was the implied reason why in New India Assurance the First Respondent (as with the other parties) was held to be liable for their respective costs of the action. It would seem appropriate that a similar order should apply in the present case.

[35] It is the THIRD FINDING of this Court that although the Third Respondent has by her position in agreeing to the retirement age clause in the Collective Agreement considered such clause to be 'fair' discrimination, she could not agree to do so. Further, although the First Respondent registered such Collective Agreement containing such offending clause (and thus could be considered to have accepted such clause to be 'fair' discrimination), he could not agree to do so. The remedy for the Applicant against the three Respondents may be in the apportionment of the costs of the proceedings.

4. Other Grounds upon which the Applicant is seeking relief

[36] Returning to the grounds upon which the Applicant is seeking relief, the Court makes the following findings in relation to other issues raised by the Applicant not already covered above, they being:

(a) That the Permanent Secretary abused his discretion in that he failed to take into consideration that the Third Respondent was 64 years of age and had gone past the retirement age -

(i) The Court notes that the Applicant in neither set of their written submissions, nor at the hearing, cited any case law in support of this ground;

(ii) Conversely, the Court noted that it raised at the hearing with Counsel for the Applicant that in many countries there is no "retirement age" as such and instead if there is a work performance problem then individuals are assessed on a case by case basis when job performance, medical evidence if relevant, and the like can be considered - as perhaps should have occurred in the present case in any hearing before the Disputes Committee. Indeed, it is noted that in Australia the Human Rights and Equal Opportunity Commission have been conducting an awareness campaign on this very issue: see, for example, "Mature Workers Mean Business", http://www.hreoc.gov.au/matureworkers/index.html, 9 July 2008, where, as the website notes, it "showcases stories from the workplace featuring older workers and their employers. It also debunks common myths about older workers and offers strategies to attract and retain mature workers"; and 1 October 2008, "Take time on International day of older persons to value older workers" http ://www.hreoc.gov.au/about/media/media releases/2008/102 08.html, wherein it has reported the comments of its Commissioner responsible for Age Discrimination, Elizabeth Broderick as follows:

"… the Australian Human Rights Commission had received 417 age discrimination complaints between mid 2004 to mid 2008, with 73 per cent of these being employment-related."

"In a time of skills shortage, we must be innovative and act now to make workforce participation attractive to the mature aged. Employers could consider retraining programs over the work cycle, or phased retirement and flexible work options for example. Likewise, the federal government should continue to review and improve laws and policies in the area." Ms Broderick said.

"This is not about forcing every mature age person to work. This is about choice. If nothing else, we must realise that to build a strong economy, we are reliant on the ongoing contribution of older people now more than ever," Ms Broderick said.

"International Day of Older Persons has given us the long overdue opportunity to honour the contributions older people make and continue to make to the strength of our economy and the health and wellbeing of our country. After all, our future depends on it."

Whilst acknowledging that the age mix in Fiji may be different to that of Australia, the issues are still very relevant.

(iii) In addition, as noted above, it is unlawful in the Fiji Islands to unfairly discriminate against any person, whether in public or private spheres, on the basis of their age;

(iv) Thus, it is the FOURTH FINDING of this Court that, on its face, the fact that the Third Respondent was 64 years of age was irrelevant as there is no longer a "retirement age" per se in the Fiji Islands and the First Respondent did not abuse his discretion in accepting a trade dispute in which the Third Respondent was alleging age discrimination.

(b) That the Permanent Secretary abused his discretion in that he did not take into consideration that the Second Respondent was raising constitutional issues that should have been dealt with the High Court and not under the "Trade Dispute" procedure -

(i) The Court notes that the Applicant did not cite in their written submissions nor at the final hearing any case law in support of this ground;

(ii) Thus, it is the FIFTH FINDING of this Court that the just because a matter raises constitutional issues does not mean that it cannot also be the subject of a trade dispute and thus the First Respondent did not abuse his discretion in accepting a trade dispute in which the Second and Third Respondents were raising constitutional issues.

(c) That the Permanent Secretary acted contrary to the legitimate expectations of the Applicant in that he failed to reject the report of the trade dispute -

(i) The Court notes that the Applicant in neither set of their written submissions, nor at the hearing, cited any case law in support of this ground;

(ii) The Court also notes (as was also raised in New India Assurance) that there is a difference between a right to procedural fairness and that of a Court declaring that a Defendant has created in a Plaintiff a legitimate expectation: see Attorney-General of New South Wales v Quin (1990) 170 CLR 1 at 21; Pacific Transport Ltd v Khan [1997] FJCA 3 (Unreported, Court of Appeal Fiji Islands, ABU0021U of 1996S, 12 February 1997, Thompson, Barker and Dillon JJA) (PacLII: http://www.paclii.org/fj/cases/FJCA/1997/3.html), page 6 endorsing the judgment of Pathik J in Dewa v University of the South Pacific [1996] FJHC 125 (High Court of Fiji, No. HBJ0007J of 1994S, 4 July 1996) (PacLII: http://www.paclii.org/fj/cases/FJHC/1996/125.html; see also a recent detailed judgment on this issue in Cama v Attorney General (Unreported, High Court of Fiji, HBC051 of 2005, 25 July 2008, Hickie J) (PacLII: [2008] FJHC 149, http://www.paclii.org/fj/cases/FJHC/2008/149.html).

(iii) Thus, it is the SIXTH FINDING of this Court that the First Respondent did not act contrary to the legitimate expectations of the Applicant in accepting the report of a trade dispute.

E. CONCLUSION

1. Motion dismissed

[37] In view of the six findings made by this Court as set out above, the Motion for Judicial Review is dismissed. Indeed, the Court is of the view (as was also raised in New India Assurance) that the Application for Leave to Apply for Judicial Review was premature. Instead, the matter should have been allowed to run its course before the Disputes Committee. Only AFTER that determination, if either party was dissatisfied with the outcome, should Judicial Review proceedings have been commenced.

2. Costs

[38] As noted above, the Applicant employer cannot be solely responsible for the legal costs of this matter (even though it instituted the Judicial Review proceedings). The Second Respondent union had an obligation as much as the Applicant employer to ensure that the retirement age clause in the Collective Agreement did not offend the Constitution and HRC Act. In addition, the Third Respondent as the President of the Second Respondent at the time when the Collective Agreement was negotiated (and, indeed, one of the signatories to that Agreement), had a responsibility to her members (including herself) to see that the Collective Agreement did not offend the Constitution and HRC Act. As this was a joint agreement, the Applicant, Second and Third Respondents shall be liable for their respective costs.

[39] In relation to the First Respondent, as he was responsible for registering the Collective Agreement with the offending discriminatory clause (which he is now saying should be referred to a disputes committee as a Trade Dispute), he should also be responsible for his own costs.

[38] Accordingly, the Orders of this Court are as follows:

1. That the Motion for Judicial Review is dismissed.

2. That each party is responsible for their respective costs.

Thomas V. Hickie
Judge

Solicitors:

Sherani & Co., Barristers & Solicitors, Suva, for the Applicant
AG Chambers, Suva, for the 1st Respondent
Lateef and Lateef, Lawyers, Suva, for the 2nd & 3rd Respondents
Proceedings Commissioner, Fiji Human Rights Commission as Amicus Curiae