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Tribunal dismisses ATS essential services bid

Felix Chaudhary
Wednesday, April 18, 2018

THE Employment Relations Tribunal has dismissed an application by Air Terminal Services Fiji Ltd for the company to be declared an essential service.

ATS management filed an application on September 8, last year asking the tribunal to declare ATS an essential service industry.

In the application, ATS management — in a Notice of Motion supported by an affidavit from Human Resources manager Richard Donaldson ­— also requested that ATS be declared an essential service employer and for the respondent — Federated Airline Staff Association — to pay costs for the application.

In a ruling delivered on April 6, resident magistrate Ropate Green dismissed the action, saying the tribunal did not have the powers to make such a declaration.

While delivering the ruling, he cited Section 191BV of the Employment Relations Act which states that the minister (of Employment) following consultation with the Board and by Notice in the Gazette could make amendments or revisions to essential industries declared under the Decree or to designated corporations or companies designated under the Decree.

"It is clear that the powers to designate or declare companies as an essential industry are vested with the minister," he said.

"Clearly, this is a statutory function which is subject to judicial review.

"In the context of this matter, the private-public law dichotomy is vitally important.

"From this vantage point, even if the court were to assume that it is vested with jurisdiction to hear this matter, this matter would still fail since the remedies the applicant are seeking falls within the realm of public law and not private law.

"The action is therefore dismissed.

"Having dismissed this action on the basis that this tribunal is devoid of jurisdiction, the tribunal need not deal with the respondent's notice of motion to strikeout."

Magistrate Green also dismissed the application by ATS management for FASA to pay costs and further ordered each party to bear their own costs.

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