Transport Workers Union v Air Pacific Ltd [2004] FJAT 10; Award 03 of 2004 (18 February 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 3 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

THE TRANSPORT WORKERS UNION

AND

AIR PACIFIC LIMITED

TWU: Mr Attar Singh
Air Pacific: Ms G Phillips

DECISION

This is a dispute between the Transport Workers Union (the "Union") and Air Pacific Limited (the "Employer") concerning the termination of employment of Jese Naka (the "grievor")

A trade dispute was reported to the Permanent Secretary on 13 February 2001 after the parties had exhausted the grievance procedure set out in the Collective Agreement. The Permanent Secretary accepted the report and referred the dispute to a Disputes Committee. The Committee handed down its decision on 22 March 2001. The Committee decided that the grievor’s termination of employment was harsh and that he should be re-instated at once with 25% of his benefits to be paid from 19/5/99 to 21/3/01.

The employer challenged both the decision of the Permanent Secretary to accept the report of the trade dispute and the decision of the Disputes Committee by way of Judicial Review in the High Court. The High Court ordered that both decisions be quashed. On appeal to the Fiji Court of Appeal, the decision of the Permanent Secretary to accept the report of the trade dispute was restored but the orders of the High Court quashing the decision of the Disputes Committee was upheld.

As a result the Permanent Secretary referred the dispute to another Disputes Committee. The Employer did not recommend a nominee to the Disputes Committee and consequently the Minister authorized the Acting Permanent Secretary to refer the trade dispute to an Arbitration Tribunal for settlement pursuant to Section 5A(5) (a) of the Trade Disputes Act Cap.97.

The trade dispute was referred to the Permanent Arbitrator on 6 October 2003 with the following terms of reference:

".... for settlement over the termination of employment of Jese Naka with effect from 19 May 1999 which the Association claims

to be harsh and unfair and seeks his re-instatement without loss of benefits".

The dispute was listed for mention before the Permanent Arbitrator on 21 October 2003. On that day the parties were directed to file written submissions by 6 February 2004 and the dispute was listed for hearing on 17 February 2004.

By letter dated 5 February 2004 the Union sought a revision of this timetable. The Union claimed that it was not in a position to file written submissions or proceed with the hearing because the grievor could not be located and instructions obtained. The employer, through its Solicitors, indicated by letter also dated 5 February 2004 that it objected to the Union’s application.

By letter dated 9 February 2004 the Union advised the Tribunal that a decision had been made not to proceed with the dispute.

The Tribunal considered that this letter amounted to an application to withdraw the trade dispute. As withdrawal is a unilateral act of discontinuance of proceeding with the dispute, the Tribunal considered that it would be helpful to hear from the parties.

When the dispute was mentioned on 18 February 2004 the Union confirmed that it was seeking to withdraw the dispute. The Employer consented and a consent award will be made accordingly.

CONSENT AWARD

The Trade Dispute is withdrawn.

DATED at Suva this 18^th day of February 2004

Mr W D Calanchini

ARBITRATION TRIBUNAL