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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
EMPLOYMENT JURISDICTION
ERCC Case No. 8 of 2011
BETWEEN:
SALIM BUKSH
PLAINTIFF
AND:
BANK OF THE SOUTH PACIFIC GROUP
DEFENDANT
Appearances: Mr John Apted for the plaintiff
Mr R. Chaudhry for the respondent
Date of hearing: 1st February, 2012
JUDGMENT
On 30th December, 2011, the defendant had been granted time to file affidavit in reply and the application for interim relief was fixed for 11th January, 2012.
Meanwhile, a summons was filed by the defendant on 6th January, 2012, seeking:
a declaration under O.12 r7 of the High Court Rules. that.. this .Court has no jurisdiction over the defendant in respect of the subject matter of the claim, and that the Action be dismissed.
Alternatively,..... that the originating summons be struck out.
On 11th January, 2012,the matter was taken up before me. Counsel for the plaintiff,Mr Chaudhry sought a week's time to file affidavit in reply to the cross-summons. Counsel for the defendant, Mr Apted objected to the application. I permitted the application to file affidavit in reply and the matter was fixed for argument on 1st February, 2012.
On 1st February, 2012, Mr Chaudhry and Mr Apted addressed me on the preliminary issue whether the Employment Court had jurisdiction to entertain this application. Mr Chaudhry stated he was not pursuing the interim relief sought, until this issue was decided.
The principal contention of Mr Apted was that this court has no jurisdiction over the defendant, by virtue of Section 28(2) of the Essential National Industries (Employment) Decree,2011,(ENI). This section provides that the Employment Relations Promulgation,2007 shall not apply to "a person employed in any designated corporation or any essential national industry". The defendant was declared as a designated corporation by Legal Notice No 81 of 2011.
It would be convenient at this stage to refer to Mr Chaudhry's riposte .He contended that the objectives of the Decree, as set out in section 5, demonstrates that the Decree regulates workplace bargaining and is intended to apply only to a "worker" as defined in section 2 of the ENI. He asserted that unless a person is defined as a "worker", the provisions of the ENI Decree do not apply to him. Accordingly, Mr Chaudhry submitted that since the plaintiff was not a "worker" within the meaning of section 2, the ERP is applicable to him.
Section 28(2) of the ENI Decree provides:
"Except as otherwise provided in this Decree, the provisions of the Employment Relations Promulgation 2007 shall not apply to any essential national industry, designated corporation or any person employed in any designated corporation or any essential national industry".(emphasis added).
"Worker" is defined in Section 2 of the ENI in these terms:
"Worker" means any person who is employed by a designated corporation and is subject to a collective agreement, but does not include:
(a) persons on individual employment contracts with a designated corporation at the date of commencement of this Decree.
(b) persons in managerial, supervisory, coordinating or other roles in which those persons are authorised to exercise discretion to bind or act on behalf of their employer up to certain pre-delegated authorities; or
(c) persons with access to financial information, commercially sensitive information or critical managerial operational information." (emphasis added)
Both counsel agreed that the plaintiff does not fall within the definition of a "worker", as he is not subject to a collective agreement and comes within limbs (b) and (c), but beyond that stage they parted company completely. The arguments of counsel diverged on the construction of the opening words "Except as provided in this Decree" in section 28(2) of the Decree.
Mr Apted advanced four propositions. The first was that the expression "Except as provided in this Decree" could not bring in terms defined in the Decree. If the legislature intended section 28(2) to apply only to "workers" as defined, it would have used that term in section 28(2). This term, he submitted, was deliberately avoided.
The second was that the expression under review, makes it clear that there are exceptions to the general proposition, that the ERP does not apply. These exceptions are expressly saved in sections 10 and 20 of the Decree.
The third proposition arises from section 7,which refers to " employees" and section 24 (2) which refers to "persons employed in any "designated corporation"".It was asserted further that that when the ENI Decree is read as a whole, it is evident that the legislature did not intend that the whole Decree should be restricted to "workers". The use of different terms was intentional .The legislature intended to restrict only the provisions relating to collective bargaining to "workers" (as defined), and the other provisions of the Act to apply broadly to all "employees" or to designated corporations" and not only "workers".
Finally, Mr Apted argued that section 30 (2) and (3) of the Decree fortifies his submissions, as these provisions provides that any "proceeding, claim, challenge or dispute" under the ERP shall "wholly terminate" upon the commencement of this Decree.
In his written submissions, Mr Apted has reproduced extensively several provisions of the Decree including the following.
The long title of the Decree which reads as follows:
"A DECREE TO PROVIDE FOR THE GOVERNING OF RELATIONS BETWEEN EMPLOYEES AND EMPLOYERS IN ESSENTIAL NATIONAL INDUSTRIES IN FIJI" .
The purpose of this Decree, as provided in section 3," is to ensure the viability and sustainability of certain industries that are vital or essential to the economy and the gross domestic product of Fiji".
Section 4 provides that "in interpreting and implementing the provisions of this Decree, consideration and due regard must be given as far as practicable and subject to available resources to the following principles –
(a) the need to promote the development, viability and sustainability of designated
corporations for the benefit of Fiji;
(b) the need to provide workers in designated corporations with a framework and process by which they may bargain as a group and enter in collective agreements with designated corporations, or by which they can decide to deal directly with their employer without union representation; and
(c) the need to provide a means to resolve any disputes that may arise between workers and designated corporations".
The "objectives" of the Decree are set out in section 5, as follows –
(a) to ensure the present and continued viability and sustainability of essential national industries for the benefit of Fiji;
(b) to avoid any interruption to the continued viability and sustainability of designated corporations;
(c) to provide for the complete independence of employers and workers in the matter of self organisation to carry out the purposes of this Decree;
(d) to provide certain guarantees to workers in essential national industries relating to joining or not joining unions and engaging in the process of collective bargaining subject to the provisions of this Decree; and
(e) to provide for the prompt and orderly settlement of all disputes including but not limited to those that may concern rates of pay, work rules, working conditions or disciplinary actions".
This case raises an interesting point of construction of section 28(2) of the ENI.
The section states the provisions of the ERP are not applicable to "any person employed in any designated corporation or any essential national industry". It is preceded by the expression "Except as provided in this Decree".
On a construction of this section, I am of the view that the introductory words "Except as provided in this Decree" creates an exception to the general proposition that the provisions of the ERP are not applicable. The scope of the ERP is limited to the provisions saved in the Decree, which are sections 10 and 20, as submitted by Mr Apted.
Section 10(a) provides that " a prospective or existing representative must apply in writing to be elected or re-elected as a representative of a Bargaining Unit
and provide... the information required by Section 119(3) of the Employment Relations Promulgation,2007".
Section 20 provides that " the principles of good faith set out in Division 1 of Part 16 of the Employment Relations Promulgation,2007 shall apply to all negotiations and interactions between the employer and the registered representative."
It is a fundamental principle of statutory interpretation that the words in a section must be construed in their natural and ordinary sense. In support of this principle, Mr Chaudhry has cited Tindal CJ in the Sussex Peerage Case,(1844) 11 C1 & Fin 85, in his written submissions. Mr Apted cited Lord Wensleydale in Grey v Pearson[1857] EngR 335; , (1857) 10 ER 1216 at 1234, qualifying this principle in what is termed the "golden rule",which provides that " the grammatical and ordinary sense of the words may be modified.. so as to avoid ... absurdity and inconsistency, but not farther".
Mr Chaudhry, in his submissions, has also invited my attention to the decision in RB Patel Group Ltd v Suva City Council, (2011) FJHC 606, which refers to the following dicta Lord Reid and Buckley L J.
Lord Reid in Black-Clawson International Ltd v Papierwerke,(1975)1 A.E.R 810 at 814 stated:
"We often say that we are looking for the intention of Parliament, but that is not quite correct. We are seeking the meaning of the words which parliament used. We are seeking not what Parliament meant, but the true meaning of what they said". (emphasis added)
Buckley L J stated in Swiss Bank v. Lloyds Bank, (1980) 3 W.L.R. 457 at 474 the approach to be adopted by Court in constructing a statue as follows:
"In my judgment, the language of paragraph 88(B) must be construed in accordance with the ordinary rules of construction. The language must be given its normal meaning if this is clearly expressed, unless this would lead to so surprising a result in the context and having regard to the subject matter as to lead convincingly to the conclusion that the author cannot have intended that meaning, and even so the language cannot be construed in any other sense unless it is capable of bearing it." (emphasis added)
The following excerpt from the speech of Lord Guest in Cramas Properties Ltd v Connaught Fur Trimmings Ltd, (1965) 2 A.E.R 382. at page 387 on the exercise of statutory construction is also appealing:
"Where a statute has used words which prima facie have an unambiguous meaning it is not, in my view, legitimate to extract a forced and unnatural meaning from a consideration of other provisions in the same statute, particularly where the result of such a construction is to lead to difficulties of the interpretation of the secondary meaning". (emphasis added)
It is permissible to search for the object and purpose of legislation, but it cannot be taken to restrict the wide words of a section. This must particularly be so where the language has no evident ambiguity or uncertainty.
Mr Chaudhry's contention was that the objectives of the Decree, as set out in section 5, demonstrates that the Decree regulates workplace bargaining and is intended to apply only to a "worker". But this argument overlooks the objective set out in the long title of the Decree: the governing of relations between employees and employers.
I do not find it possible to conclude that the expression "Except as provided in this Decree" in section 28(2) is to be construed with the definition of "worker", as contended. More importantly, the expression "any person employed" in that section cannot be given a strained construction in circumstances when both terms have been expressly used in the context of other particular sections of the Decree.
There are two provisions which militate against any such constricted approach. One is in section 7,which provides that ".all office-bearers, officers, representatives, executives, and members of a union which represent workers employed by designated corporations must, at all times, be employees of the designated corporation which they represent". The other is section 24 (2), where the decree expressly states "No person employed in any "designated corporation" that operates on a full-time .. basis shall, .. be entitled to any overtime pay for work performed on .. public holidays".
Halsbury, Laws of England, (4th Edition) Vol 16,1A provides a elucidation at paragraph 5 on the terms under consideration as follows:
"Some employment-related statutes achieve wider application by the use of either the term 'worker' or a deliberately wider definition of 'employment' and employee'"(footnotes omitted).
I have come to the conclusion that section 28(2) is applicable to the plaintiff .In my judgment, this action under the ERP cannot be maintained.
This conclusion is sufficient to dispose of this application, and I need not consider the defendant's application to strike out this matter.
The plaintiff's originating summons is dismissed with costs summarily assessed in a sum of $1500 payable by the plaintiff to the defendant.
A.L.B.Brito Mutunayagam
Judge
2nd May, 2012
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