IN THE HIGH COURT OF JUSTICE

Transcription

1 REPUBLIC OF TRINIDAD AND TOBAGO Claim No. CV IN THE HIGH COURT OF JUSTICE IN THE MATTER OF AN APPLICATION FOR LEAVE TO MAKE A CLAIM FOR JUDICIAL REVIEW PURSUANT TO PART 56.3 OF THE CIVIL PROCEEDINGS RULES, 1998 AS AMENDED AND PURSUANT TO SECTION 6 OF THE JUDICIAL REVIEW ACT, 2000 AND IN THE MATTER OF THE DECISION OF THE REGISTRATION, RECOGNITION AND CERTIFICATION BOARD CONTAINED AND/OR EXPLAINED IN THE BOARD S LETTER DATED DECEMBER 14, 2015 AND/OR CONTAINED IN THE BOARD S LETTER DATED MAY 8, 2015 BETWEEN THE UNIVERSITY OF TRINIDAD AND TOBAGO Applicant/Intended Claimant AND REGISTRATION, RECOGNITION AND CERTIFICATION BOARD Intended Respondent Before the Honourable Mr. Justice V. Kokaram Date of Delivery: 30 th November 2016 Appearances: Mr. John Jeremie S.C. and Mr. Kerwyn Garcia instructed by Ms. Manisha Lutchman for the Applicant Ms. Keisha Prosper and Ms. Theophilus instructed by Ms. Lesley Almarales for the Respondent Page 1 of 12

2 JUDGMENT-SUMMARY 1. The Claimant, the University of Trinidad and Tobago (UTT) has brought an application for judicial review of the decision of the Registration, Recognition and Certification Board (Board) dated 14 th December 2015 whereby it found that Glenford Joseph was a worker within the meaning of Section 2(3) (e) the Industrial Relations Act Chap 88:01 (IRA). 2. The Board is the only competent body to make a determination under the IRA as to who is a worker. Its jurisdiction to make such a determination in this case was invoked upon the Minister of Labour referring the issue of Mr Joseph s status as a worker to the Board for determination. Such a referral was made as a result of a reported trade dispute between the Oilfields Workers Trade Union (OWTU) who represented Mr Joseph and UTT. 3. The Board conducted a hearing of this issue by means of requesting the parties to submit their Evidence and Arguments in support of their rivalling contentions which documents were shared between the parties. The Board also convened ex parte clarification meetings convened by the Board s Examiner. These clarification meetings were held with the respective parties in the absence of the other to receive the parties submissions. Notes of these meetings were taken by the Examiner and conveyed to the other party in subsequent clarification meetings. Such clarification meetings is the practice of the Board adopted to reduce the likelihood of the proceedings becoming adversarial and to protect union members from possible victimisation. Subsequent to those meetings, a report was prepared and submitted to the Board s Secretary for onward transmission to the Board for consideration. 4. In this case although UTT participated in the clarification meetings it was not afforded the opportunity to view the report or make submissions on it. 5. On the 8 th May 2015, the Board wrote to UTT notifying it that after full and careful consideration of the respective representations of the parties, the Board arrived at the conclusion that Mr Joseph was a worker within the meaning of Section 2(3) (e) of the IRA. Reasons for the decision was provided by letter dated the 14 th December UTT is seeking to have the said decision quashed as illegal and/or ultra vires and/or unreasonable and/or irrational and/or contrary to the provisions of the IRA. They have Page 2 of 12

3 advanced a battery of grounds for judicial review which go to the root of the Board s jurisdiction to make this decision. They contend that the decision is unauthorised and/or contrary to law, in excess of jurisdiction, unreasonable, an irregular or improper exercise of discretion, unreasonably took into account irrelevant considerations, an error of law, committed a breach of duty acted so unreasonably that no reasonable person could have so exercised the power and breached the rules of natural justice. 7. This claim for judicial review also brings squarely into focus statutory ouster clauses under section 23(6) and (7) of the IRA. This has already been the subject of judicial consideration by Gobin J in Desalination Company of Trinidad and Tobago Limited v Registration Recognition and Certification Board CV which decision is under appeal. By way of preliminary issues the Court must determine the scope of review if any depending on its approach to this ouster clause. 8. The agreed issues for determination are as follows: a. What is the effect of Desalination Company of Trinidad and Tobago Limited v Registration Recognition and Certification Board CV on section 23(6) and (7) of the Industrial Relations act. b. Whether the Court s Jurisdiction is ousted by section 23(6) and (7) of the Industrial Relations Act. c. If the Court determines that its jurisdiction is not ousted by sections 23 (6) and (7) of the Industrial Relations Act, whether in arriving at its opinion that Glenford Joseph was a worker within the meaning of section 2 (3) (e ) (i) and (ii) of the Industrial Relations Act, the Respondent: i. acted outwith and/or in excess of its jurisdiction and/or failed or refused to act within its duties and functions; ii. acted in breach of natural justice; iii. exercised its powers on irrelevant grounds and/or took into account irrelevant considerations; iv. addressed itself to the wrong questions; Page 3 of 12

4 v. exercised its powers in a manner that is so unreasonable that no reasonable person could have so exercised the power; vi. failed to exercise its jurisdiction properly or at all in that it based its opinion on a test set by a body which lacked the jurisdiction to establish any test. d. Whether by reason of any of the matters at 3 a. to f., or by reason to any other matters, the Respondent s opinion that Glenford Joseph was a worker within the meaning of the section 2 (3) (e) (i) and (ii) of the Industrial Relations Act, is illegal and/or ultra vires and/or unreasonable and/or irrational and/or contrary to the provisions of the Industrial Relations Act, and is null, void and of no effect. e. If so, what relief is the Claimant entitled? 9. There necessarily is an overlap on the facts falling for consideration under multiple grounds of challenge. The status of the ouster clauses in the IRA 10. There are two sections in the IRA which prohibits a review of the decision of the Board. Section 23(6) (6) No decision, order, direction, declaration, ruling or other determination of the Board shall be challenged, appealed against, reviewed, quashed or called in question in any Court on any account whatever; and no order shall be made or process entered or proceeding taken by or in any Court, whether by way of injunction, declaratory judgment, certiorari, mandamus prohibition, quo warranto or otherwise to question, review, prohibit, restrain or otherwise interfere with the Board or any proceedings before it. Section 23(7) (7) Subject to this Act, and in particular to section 3 1, the Board shall be the sole authority competent to expound upon any matter touching the interpretation and application of this Act relating to functions and responsibilities with which the Board is charged by the Act or any other written law; and accordingly, no cause, application, action, suit or other proceeding shall lie in any Court of law concerning any matter touching the interpretation or application of this Act. Page 4 of 12

5 11. These two sections oust the jurisdiction of the High Court in relation to challenges to the ruling of the Board and any matter touching and concerning the interpretation and application of the Act because the Board is recognised as the sole authority competent to expand on such matters. 12. From a long line of cases beginning with Anisminic Ltd v Foreign Compensation Commission [1969] AC 147, it is now clear that ouster clauses are not sacrosanct and are virtually ineffective in ousting the supervisory jurisdiction of the High Court. From judicial commentary from noting that Courts jealously guard its supervisory jurisdiction to Lord Phillips observation in R (Cart) v Upper Tribunal [2011] UKSC 28 of the controversial nature of such ousters. In 1997 Professor Geoffrey Wilson (para Fordham) commented that nobody should be surprised if in a real case of legislative enormity the Court did not discover a higher principle of law but which they felt free or even obliged to ignore the current version of the doctrine not only in the name of constitutional convention but also in the name of the law. 13. Fordham would also note the judicial hostility to ouster clauses: Legislative provisions which suggest a curtailment of the Courts powers of judicial review strike at the heart of the Courts constitutional function of upholding the rule of law and access to justice testing the remits of the principle of legislative supremacy. Para In the Caribbean ousters have met a similar hostile climate. In the Caribbean Court of Justice The Attorney General et al v Jeffrey Joseph and Lennox Ricardo Boyce CCJ Appeal No. CV 2 of 2005 the Learned Justices in making reference the House of Lords decision in Anisminic v Foreign Compensation Commission [1969] 2 AC 147 emphasized that: courts have made it clear that they will not be deterred by the presence of such ouster clauses from inquiring into whether a body has performed its functions in contravention of fundamental rights guaranteed by the Constitution, and in particular the right to procedural fairness. 15. The ousters in the IRA were however designed to promote the development of a new jurisprudence of industrial relations law. The structure of the IRA has been well rehearsed in Paul Lai v The Attorney General of Trinidad and Tobago Civ App No. P129 of 2012 and Page 5 of 12

6 the creation of the Board is indeed a specialised tribunal staffed with its own expertise on the question relating to special matters of industrial relations such as the definition of workers, bargaining units and other such matters which the Minister will refer to it from time to time. 16. The judicial treatment of these ousters have been met with two approaches. First there is the approach of judicial autonomy that preserves unto the Court the common law supervisory jurisdiction of review of decisions made without jurisdiction. This approach demonstrates that the distinction between errors or law within or without jurisdiction have now vanished into insignificance and it is plain that any error of law made by the statutory body may well deprive it of the jurisdiction to make the decision and fall under the supervisory jurisdiction of the Court to put it right. 17. Aviation Communication and Allied Workers Union v The Registration Recognition and Certification Board CA. No. 35 of 1995 determined that the Court s jurisdiction was not ousted with regard to errors made that affect the jurisdiction of the Board or breaches of the rules of natural justice. Ibrahim J observed: Once, therefore, it is a matter that falls within the functions and responsibilities of the Board then the Board can interpret and apply the Act in any way it thinks fit in relation to those functions and responsibilities. It may do so correctly or incorrectly and, if correctly, it is immune from being put right by any court. If, however, the error made does affect the jurisdiction of the Board then it may be put right, as for example, if it seeks to deal with a matter outside its functions and responsibilities. (South East Asia Fire Bricks Sdn Bhnd v. Non Metalling Mineral Products Manufacturing Employees Union and others [1980] 2 All E.R. 689). Also, if it violates the rules of natural justice as for example, if it makes orders against a party without hearing that party or if some of its members has a real interest in the matter before it. 18. See also Bristow Caribbean Limited v The Registration, Recognition and Certification Board HCA No of See also Pearlman v Keepers and Governors of Harrow School [1979] Q.B. 56 and R v Hull University ex p Page [1993] AC 682, 696F. Page 6 of 12

7 19. The second approach has been of recent vintage in 2015 where the High Court by the judgment of Gobin J in Desalination Company of Trinidad and Tobago Ltd v Registration Recognition and Certification Board CV struck down these sections as unconstitutional as it offended the principles of the separation of powers. Indeed it was the manifestation of the prediction of Professor Wilson that the time eventually came in this jurisdiction where the Court ultimately invoked a higher principle of constitutionality to bury this question of the effectiveness of ousters in its grave. It was perhaps a natural evolution as indeed on a practical level the Court by its own machinations may have treated the ousters quite like the emperor s new clothes invisible in meaning and intent and incapable of truly ousting the Court s supervisory jurisdiction save for questions of fact and degree. 20. For my part I do not think it would be prudent or safe to base this decision on the absence of these ousters as having been struck down in Desalination as that decision is presently under appeal. For my part I do not share the view that the Court should go so far as to strike down these ousters as being unconstitutional, however that issue is not for determination in these proceedings. However, these ousters are incapable of preventing this Court from reviewing the decision of the Board or the reasons set out in Bristow. In any event the grounds of challenge raised by UTT are all legitimate challenges which go to the root of the jurisdiction of the Board in making its decision and fit nicely into the judicial treatment of these ousters as discussed in Bristow and Aviation. 21. However such an approach necessarily recognises the sensitivity of judicial review to the subject matter and to pay due deference to the decision making body for matters within its particular expertise who possess the unique knowledge and expertise on their area of learning and particularly in this matter, in understanding the specialised jurisprudence in the world of industrial relations. Due deference however will not save a decision which plainly lacks any basis or is devoid of jurisdiction. 22. In my view for the reasons set out in this judgment the decision ought to be quashed for the following reasons. Page 7 of 12

8 Unauthorized/ Contrary to Law 23. In considering whether Mr. Joseph is a worker the Board restricted its interpretation of a person who is responsible for formulating policy. The Board stated that: a person is responsible for the formulation in an organisation once the said policy that was devised has been sanctioned. 24. UTT submitted that the Board addressed the wrong question when they considered what the organisation does with the policy formulated by a person, rather than the person s responsibility for the formulation of the policy itself since a person can be responsible for the formulation of a policy even if the organisation does not implement the policy. 25. Section 2 (3) (e) of the IRA provides: (3) For the purposes of this Act, no person shall be regarded as a worker, if he is- (e) a person who, in the opinion of the Board- (i) is responsible for the formulation of policy in any undertaking or business or the effective control of the whole or any department of any undertaking or business; or (ii) has an effective voice in the formulation of policy in any undertaking or business. 26. The Board considered the question of responsibility for the formulation of policy as an inquiry into such policies that have been implemented or sanctioned by the Board. This is however an illegitimate and improper enquiry. This is not a question which goes to the Board s expertise but one of the jurisdiction based on the statutory construction of sec 2(3)(e) which this Court is best placed to determine. The meaning of section 2 (3) (e) turns on the definitions of responsible, formulation and policy. A literal definition of these words are as follows: Responsible: Having control and authority; reporting or accountable (to); sensible and dependable; involving responsibility. Formulation: The action of creating or preparing something. Page 8 of 12

9 Policy: A course or principle of action adopted or proposed by an organization or individual The section therefore permits an inquiry into the person s authority in creating policies which have been either adopted or proposed. It was improper, unreasonable and illegitimate therefore to fail to consider whether Mr Joseph s responsibility included the formulation of policy whether or not it was sanctioned or implemented. 28. It is in my view not open to the Board to adopt its own policy with regard to the application or interpretation of the words responsibility for the formation of policy. The Board is restricted in its jurisdiction to the proper application of the Act. See Best J Bristow Caribbean Limited v The Registration, Recognition and Certification Board HCA No of The Board therefore unlawfully limited the scope on the definition of the question of policy to the implementation of policy and excluded the lawful definition of whether policy was proposed which is a legitimate consideration under the meaning of Section 2 (3) (e) of the IRA. 30. UTT also contends that the Board considered the wrong test in asking whether Mr Joseph had effective control of the department rather than being responsible for effective control. I am of the view that the correct statutory test is whether Mr Joseph was responsible for the effective control of the department. However, in my view the distinction between the two tests are immaterial. In any event the person who is in effective control of the department or business must also be responsible for that effective control. In any event in the submissions advanced before the Board by UTT they too submitted that Mr Joseph had effective control of the department without reference to his responsibility for effective control. Indeed it amounts to the same consideration. Unlawful fettering of the Board s discretion 31. The Applicant submitted that the Respondent relinquished its responsibility under the Act to be the sole authority to expound upon any matter relating to the interpretation and application 1 English Oxford Dictionary. Page 9 of 12

10 of the Act with regard to its functions and responsibilities since the Respondent guided itself on the issue of whether Mr Joseph was a person responsible for the formulation of policy from the Industrial Court s decision of Trade Dispute No. 351/97, an application No. 6/97 of the Association of the Technical Administrative and Supervisory staff and Caroni (1975) Limited. 32. It is true that the Industrial Court does not have the jurisdiction to make a determination as to whether or not a person is a worker within the meaning of the IRA. See De la Bastide C.J. in Association of the Technical Administrative and Supervisory staff and Caroni (1975) Limited. It is also true that the Board s letter appears to give the impression that the sole consideration taken into account by the Board was the judgment of Baker J in making a decision as to what is meant by an effective voice in the formulation of policy. 33. However from a proper reassessment of the evidence it appears perhaps that the letter was inelegantly phrased and it was guided and not bound by those decisions. See the affidavit of Mr. Brandon Taitt paragraph The Board is free to consider any material it views useful within its expertise. Although the Industrial Court has no jurisdiction to make a pronouncement as to who is a worker within the meaning of the Act, it does not render their opinion on the question useless or totally irrelevant. It is noted after all that the Industrial Court is a specialist tribunal with its own jurisprudence on matters of industrial relations whose members possess years of experience in industrial relations law. Indeed it is possible for the Board to refer to such decisions as a Court would consider a dissenting judgment, decisions from different bodies or from different jurisdictions. However it will be wrong for the Board to consider themselves bound by those decisions. 35. While the Board is free to develop its own industrial relations jurisprudence it must not at the same time feel compelled to follow the decisions of the Industrial Court and its decision should reflect a sensitivity to the development of its own considerations of what is an effective voice rather than give the impression that it has felt itself bound to follow the decisions of Baker J. In this case from the totality of the evidence I am of the view that that decision was a mere guide and did not fetter the exercise of the Board s independent judgment. Page 10 of 12

11 Natural Justice 36. UTT submitted that the Board acted in breach of the rules of natural justice in having the Examiner s report prepared which contained material adverse to UTT s case and failed to disclose it. 37. In B Surinder Singh Kanda v The Government of the Federation of Malaya PC 2 Apr 1962, a similar situation arose. The Board of Inquiry in that matter prepared a report which contained a severe condemnation of the Appellant (Inspector Kanda). This report was sent to an adjudicating officer who read it and had full knowledge of its contents but the Appellant never had an opportunity to deal with the report. The Privy Council held that the Appellant was not given a reasonable opportunity to be heard. 38. I do not share the view advanced by the Board that the examiner is an officer intrinsic to the Board and the preparation of such a report is akin to a judge asking its Judicial Research Counsel to prepare a note. That is quite a different scenario where the judge is exercising its independent thought and mind to the facts seeking his own research assistance as he would himself. However here the Board has an intervener, the examiner who engages the parties, conducts a hearing, summarises their respective submissions and makes her own submissions to the Board based on policies and precedents which may or may not have been shared by the parties and making comments which may be adverse to one or the other party. Certainly the principles of fairness will demand that such a report should be shared with the parties for their comments for onward transmission to the Board for it to consider all the materials. 39. The decision of the Board to hold ex parte clarification meetings does open the doors to abuse and although in the facts of this case the ex parte clarification meetings did not demonstrate that there was not a fair hearing, it certainly is a practice which ought to be discontinued. Indeed the reasons advanced to hold such ex parte clarification meetings are baseless and much more good can come from inter partes hearings certainly at the least reducing the risk of further challenges to the hearings as unfair. 40. I am of the view that the Board by restricting the meaning of responsibility for formulating policy asked itself the wrong question, exceeded its jurisdiction, acted unreasonably, took into account an irrelevant consideration, made an error of law, breached its duty by answering the wrong question on policy and was unreasonable by answering the wrong Page 11 of 12

12 question as to whether Mr Joseph was responsible for formulating policy which was sanctioned and proposed. The decision is also unfair and breaches the rules of natural justice in failing to provide UTT a copy of the report for their comment before submitting to the Board. 41. The said decision of the Respondent is therefore quashed and remitted to the Board for re consideration. Vasheist Kokaram Judge Page 12 of 12