Jalousie (1996) Ltd Claimant v [1] The Labour Commissioner [2] Attorney General Defendants [ECSC]
| Jurisdiction | St Lucia |
| Judge | EDWARDS J |
| Judgment Date | 26 July 2006 |
| Judgment citation (vLex) | [2006] ECSC J0726-2 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 2004/0498 |
| Date | 26 July 2006 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV 2004/0498
Mr. Vern Gill for Claimant
Mr. Deale Lee for Defendants
This claim focuses on the interpretation of statutory provisions relating to the Recognition of a trade union by poll majority, and the meaning of a poll 'tie' under the Registration, Status and Recognition of Trade Unions and Employees Organisations Act, No. 42 of 1999 (St. Lucia).
Jalousie (1996) Limited (Jalousie) is a limited Company under the Companies Act of Saint Lucia 1996. It operates the Jalousie Hilton Spa and Resort Hotel in Soufriere, St. Lucia.
The Labour Commissioner is a public servant employed in the Ministry of Labour Relations, Public Service and Co-operative, and also the Principal Office of the Labour Relations Department of the said Ministry.
The Attorney General is a Minister of Government and the principal legal advisor to the Government of Saint Lucia.
By a fixed date claim filed on the 28th July 2004, Jalousie has claimed:
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(a) Judicial Review of a decision made by the Labour Commissioner outlined in a letter of the 27th day of February, 2004, that the outcome of a poll for Recognition by a Trade Union held amongst the workers of the Claimant's establishment Jalousie Hilton Spa and Resort is a tie requiring a second poll to be held.
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(b) A Declaration that the decision of the Labour Commissioner determining the result of the poll a tie is wrong and that the current findings ought to have been that the Union had lost the poll.
On the 13th July 2004 the Court granted leave to Jalousie to make a claim for judicial review on condition that Jalousie file a claim by 27th day of July 2004 and join the Honourable Attorney General as a party to the claim. At the first hearing of the claim on the 20 September 2004, and the subsequent hearing on the 2nd September 2005, there was no application from Counsel for Jalousie, for the Court to extend the time for filing the fixed date claim, or alternatively, to validate the late filing of the claim. Neither was there any Application from Counsel for the Defendants for the Claim to be dismissed or struck out, on the ground that the force of the Order made on the 13th July 2004, granting leave to file the claim, was spent, and was void, and of no legal effect, on the 28th July 2004 when the claim was filed. Instead, Counsel for the Defendants has chosen to make this a preliminary issue, in his submissions filed on the 15th March 2005, while relying on the decision in the Antigua case The Police Service Commission v Clarence Edwards and Others,Suit No. ANUHCV 2003/0035 delivered by Olivetti J, paragraphs 30 to 31.
In the absence of submissions from learned Counsel Mr. Gill, or any explanations as to why the claim was filed out of time, unhappily, I look to the CPR, its overriding objectives, and PART 26.9. I am satisfied that the Court Order dated 13th July 2004 did not specify the consequences, where there was a failure to file the claim by the 27th July 2004. I will therefore exercise my discretion pursuant to PART 26.9, by validating the late filing of the claim form. Because the claim concerns a matter of public importance, I am moved to give effect to the over riding objectives of the CPR, by allowing the claim to be determined on its merits. This is not to be regarded by Counsel Mr. Gill as condonation of his non-compliance with the Rules. This case presents special circumstances, and I am satisfied that the defendants will not be prejudiced by my ruling.
On the 11th January 2000 the Registration, Status and Recognition of Trade Unions and Employers Organizations Act No. 42 of 1999, (the Act) was passed. It came into force on the 1st February 2000. By Section 24 of this Act, one of the procedures for the Registration and status of trade unions is prescribed. Section 24 (1) provides that:
"A trade union claiming to have as members in good standing a majority of the employees in a bargaining unit may, … apply to the Labour Commissioner to be recognized as the exclusive bargaining agent of the employees in the unit."
By letter dated 21st February 2003 the President General of the National Workers Union (N.W.U.) wrote to the Labour Commissioner, requesting trade union recognition on behalf of the employees of Jalousie Hilton Hotel, who were members of the N.W.U.
Pursuant to other provisions under the Act, the Labour Commissioner informed the General Manager of Jalousie Hotel of the N.W.U. Application.
Section 27 of the Act gives an employer the option to communicate to the Labour Commissioner any doubt the employer has that the trade union is entitled to be recognized as a bargaining agent for that bargaining unit. Section 29 (1) of the Act states that:
"Where 2 or more trade unions have applied … in relation to the same bargaining unit, or where one trade union has applied and the employer has doubted entitlement in a communication made under section 27, the Labour Commissioner shall carry out a secret poll among employees in the bargaining unit and in accordance with section 33 (a) shall recognize as the bargaining agent for the bargaining unit the trade union which is shown by the secret poll to have the greatest support among the employees."
Section 29 (2) states that"Where the results of the secret poll show a tie, a second secret poll shall be carried out within 7 days unless extended for cause."
As a result of the option exercised by Jalousie pursuant to Section 27 (1) (b) of the Act, a poll was subsequently conducted at the Hotel premises by the Labour Commissioner on the 5th February 2004.
Section 2 of the Act defines "bargaining unit" to mean "a group of employees on whose behalf collective bargaining may take place."
The parties are in dispute as to the number of employees who comprised the"bargaining unit." By a previous agreement between the Ministry of Labour, Jalousie, and the N.W.U., the eligible employees in the bargaining unit who were to vote in the secret poll were divided into 2 groups, Management Employees and General Employees.
Jalousie alleges that there were 212 General Employees and 40 Management Employees in the bargaining unit. The Labour Commissioner contends that there were 229 General Employees and 40 Management Employees. Since the Labour Commissioner is responsible for the conduct, organization and timing of the secret poll under the Act, it is more probable that the record of the Labour Commissioner as to the number of General Employees in the bargaining unit would be accurate. I therefore accept that there were 229 employees in this group, so the bargaining unit was compromised of 269 employees.
The results of the poll were as follows:
| (i) Management Employees | —2/40 in favour |
| —34/40 not in favour | |
| (ii) General Employees | —93/229 in favour |
| —93/229 not in favour |
The Labour Commissioner interpreted these results as showing that there was a tie within the meaning of section 29 of the Act. By letter dated 27th February 2004, Jalousie Hotel was informed that the poll showed a tie, so a second secret poll was required.
The parties have agreed that the 2 issues are:
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(a) Whether the results of the poll of the 5th day February 2004 was a tie within the meaning of section 29 (2) of the Act No. 42 of the 1999?
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(b) Whether it is possible to have a tie within the meaning of section 29 (2) of the Act in circumstances where only one trade union applied for recognition.
In order to determine these 2 issues, I must first determine the meaning of the statutory provision in Section 29 of the Act, for the purpose of applying it to the poll results. It is obvious from the submissions of Counsel that I will have to call in aid two particular rules of statutory interpretation.
The literal or plain meaning rules state that Acts of Parliament:
"… should be construed according to the intent of the Parliament which passed the Act. If the words of the statute are in themselves precise and unambiguous, then no more can be necessary than to expound those words in that natural and ordinary sense.": (PER Tindal C.J. in Sussex PeerageCase (1844) 11 Cl. & FN 85, at 143).
Tindal C.J. also recognized that before deciding whether the words in the Statute are 'in themselves precise and unambiguous,' the Court must have regard to the whole of the enacting part of the Statute: (Cross on Statutory Interpretation, 3rd ed. 15)
In one of the authorities cited by Counsel Mr. Lee, Byron C.J. as he then was, adopted the Chief Justice Sir Vincent Flossaic's expression of the other relevant principles connected with the plain meaning rule, in the Dominica case ofCharles Savarin v John William, (1995) 51 W.I.R. 75 at 79, where he stated thus:
"… I start with the basic principle that the interpretation of every word or phrase of a statutory provision is derived from the legislative intention in regard to the meaning which that word or phrase should bear. That legislative intention is an inference drawn from the primary meaning of the word or phrase with such modifications to that meaning as may be necessary to make it concordant with the statutory context. In this regard the statutory context comprises every other word or phrase used in the statute, all implications therefrom and all relevant surrounding circumstances which may properly be regarded as indications of the legislative intention.": (The Attorney General v Barbuda Council, Civil Appeal No. 7 of 2001 at para. 10)
I am further guided by Lord Reid's statement of the relevant principles in...
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