University of the South Pacific Staff Union v University of the South Pacific [2004] FJAT 21; Award 15 of 2004 (25 May 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 15 of 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

THE UNIVERSITY OF THE SOUTH PACIFIC STAFF UNION

AND

THE UNIVERSITY OF THE SOUTH PACIFIC

USPSU: Ratu Joni Madraiwiwi with Ms L Waqalevu
USP: Mr John Apted

DECISION

This is a dispute between The University of the South Pacific Staff Union (the "Union") and The University of the South Pacific (the "Employer") concerning the applicability of the Collective Agreement to the employment of intermediate and junior staff to permanent and temporary positions at The University of the South Pacific.

A trade dispute was reported by the Union on 22 April 2003 to the Permanent Secretary who subsequently accepted the Report and referred the Dispute to a Disputes Committee. The Disputes Committee convened on 6 June 2003 and after considering the parties’ submissions agreed that the Dispute should proceed to Arbitration. As a result the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (2) (b) of the Trade Disputes Act Cap. 97.

The Dispute was referred to the Permanent Arbitrator on 29 July 2003 with the following terms of reference:

"...... for settlement over the University breaching the Agreement (USP Staff Union) Clause 4.0.01. The Union requests that all contracts signed from 2002 by Intermediate and Junior staffs be reversed and that all established permanent positions remain as permanent positions until the matter has been discussed and agreed to by the University and the USP Staff Union as per the signed agreement and other associated clauses.

The second issue is the recruitment of Ms Victoria Yee as a Student Officer, which is a breach of clause 4.03.03. The Union request that the position be reversed and that clause 4.03.03 and clause 3.01.01 be adhered to. Ms Victoria Yee was a temporary staff at USP. The position was established and was allocated to Ms Yee. The position was not advertised as per the Collective Agreement".

The Dispute was listed for mention on 28 August 2003 and on that day the Union was directed to file preliminary submissions by 14 November. The Employer was directed to file submissions by 28 November 2003 with the Union to file any necessary reply submissions within 7 days thereafter. The Dispute was listed for hearing on 21 January 2004.

By letter dated 15 January 2004, the Solicitors for the Employer advised the Tribunal that the parties had agreed to proceed with the Dispute by way of written submissions without the need for a hearing. The hearing date was vacated.

At the request of the Permanent Arbitrator the parties through their Counsel appeared before the Tribunal on 1 and 18 March 2004 to clarify issues arising out of the written submissions. The final submission was filed with the Tribunal on 21 April 2004.

The first issue arising out of the Reference relates to clause 4.01.01 of the Collective Agreement. In particular the issue is whether this clause of the Agreement applies to all Intermediate and Junior Staff. The Union also raises the issue in its submissions that the University is required to employ all Intermediate and Junior Staff on permanent tenure under clause 4.01.01.

Clause 4.01 deals with terms of employment and clause 4.01.01 provides:

"Staff will be appointed on a full time basis".

It would appear that the Union has equated the requirement of full time employment with permanent employment. This interpretation forms the basis of the Union’s argument.

The clause raises the question which staff are required to be appointed on a full time basis. The simple answer is the staff who are governed by the Agreement. In order to determine which staff are governed by the Agreement it is necessary
to go to the definition clause of the Collective Agreement. Clause 1.03 is headed definitions and clause 1.03.01 provides:

"In this Agreement unless the context otherwise indicates or requires:

"Staff" or "staff members" will mean staff employed on a permanent basis as Intermediate and Junior staff by the University of the South Pacific, Laucala Campus...."

This definition of "staff" has the effect of limiting the applicability of the Collective Agreement to staff who are employed as:

(a) Permanent staff

(b) Junior and Intermediate staff

(c) Staff on the Laucala campus.

The use of the word permanent is to distinguish Junior and Intermediate staff who may be employed by the Employer on the basis of some other tenure. The USP Personnel Management handbook (the Handbook) provides in clause 4.02.14 that:

"Intermediate and Junior and Permanent hourly positions can be:

- Continuing – no end date

- Fixed term (>1 year up to 3 years, as in the case of Institutes)

- Temporary (up to 1 year)

Clause 4.02.14 of the Handbook makes it clear that Intermediate and Junior Staff may be continuing (or permanent) employees, on fixed term contracts for one to three years or temporary employees on a fixed term contract for a period of one year or less.

The Handbook also classifies employees in a functional sense by distinguishing between academic staff and Intermediate and Junior staff. There is also a distinction between those employed on a full time basis and those employed on a part time basis. For Intermediate and Junior staff to be classified as "part time" (rather than "casual") regular hours are performed each week and must be less than 25 hours per week.

The effect of the relevant provisions in the Handbook is that Intermediate and Junior Staff may be categorized according to both the nature of their tenure and the basis of their employment. The result is that in theory Intermediate and Junior Staff may be employed on continuing or permanent tenure on a full time or part time basis. Alternatively Intermediate and Junior staff may be employed either on fixed term contracts or as temporary employees on either a full time or part time basis.

However the definition of "staff" in the Collective Agreement is clear and in the Tribunal’s opinion is unambiguous. The Agreement applies to those Intermediate and Junior staff who are employed on permanent tenure. As a result clause 4.01.01 requires the University to employ permanent Intermediate and Junior on the Laucala Campus on a full time basis. There is no such requirement in relation to Intermediate and Junior staff employed on any other basis at any other location of the University. The requirement to employ on a full time basis only applies to permanent Intermediate and Junior staff.

The Union contends that the Agreement covers all Intermediate and Junior staff positions at the University and claims that at the time the Agreement was signed all Intermediate and Junior positions were permanent staff.

The Tribunal does not accept this submission. Whether or not all or most Intermediate and Junior Staff were permanent at the time the Agreement was signed does not alter the fact that the definition of staff in the Agreement simply does not support the contention that the Agreement applies to all Intermediate and Junior staff. It is not stretching the language of the definition to insert the words "who are" after the work "staff" in the definition. It is however going too far to ignore the words "employed on a permanent basis".

It is also important to note that the version of the Handbook relied upon by the parties is dated 4 August 2000. The Collective Agreement was concluded on 10 November 2000. The provisions in the Handbook to which reference has already been made are therefore relevant in determining the scope and meaning of the Collective Agreement.

The Tribunal does not consider that the University is in breach of the Collective Agreement if it employs Junior and Intermediate staff as either fixed term or temporary employees. Furthermore the University is not in breach of the Collective Agreement if it employs Intermediate or Junior staff for a fixed term or as temporary employees on a part time basis. The Employer will however be in breach of the Collective Agreement if it were to employ permanent Intermediate or Junior staff on a part time basis.

It may be that, as the nature of employment of staff at the University is changing, it is now time for the Union to open negotiations on either amending the present Collective Agreement or concluding a new agreement.

There is no material before the Tribunal to suggest that the Employer has engaged in any activity which is designed to interfere with an employee’s right to form a Union. The fact that the present Collective Agreement does not cover all
Intermediate and Junior staff does not represent an attempt by the Employer to interfere with rights conferred by sections 32 and 33 of the Constitution.

The second issue raised by the Reference concerns one particular employee, a Ms Victoria Yee. The Reference requires the Tribunal to determine whether the recruitment of Ms Victoria Yee as a Student Officer is in breach of clause 4.03.03 which in turn also requires a consideration of clause 3.01.01 of the Collective Agreement.

Clause 4.03.03 provides:

"Any vacancies occurring within the establishment of the Intermediate and Junior Staff category which may allow existing staff to be appointed to a higher position will be advertised".

Clause 3.01.01. provides:

"Vacancies to established positions will be advertised internally and in the press by the Registrar. All attempts should be made to fill the positions within three months of the vacancy occurring".

The Union submits that the position of student officer is a permanent position and not a temporary position. The Union argues that the Tribunal must examine the nature of the appointment. It is submitted that there is now a permanent aspect to the position that brings it within the scope of the Collective Agreement.

It is further argued that even if Ms Yee’s appointment was initially a temporary appointment, which the Union does not admit, it has lost that characteristic and should now be regarded as a permanent appointment.

The Employer denies that Ms Yee is employed on a permanent basis. It relies on a letter dated 18 December 2003 from the Employer to Ms Yee. This letter contains an offer of an extension of temporary appointment as Student Officer for a further six months from 1 January to 30 June 2004. The Employer submits that although Ms Yee’s current appointment as Student Officer has been extended and now totals a period of 18 months, this does not indicate that the appointment is or should be considered as one of permanent tenure.

The Tribunal accepts the submission of the Employer that it is not the position itself which is either permanent, fixed term or temporary, but rather the appointment of the employee to that position which may be of a permanent, fixed term or temporary nature.

Having diligently considered the submissions filed by the parties and the material annexed to those submissions, the Tribunal is of the opinion that the appointment of Ms Yee to the position of Student Officer is of a temporary nature. The material indicates that the nature of the tenure is temporary, ie. less than one year. The fact that the appointment has been extended does not alter the temporary nature of the tenure.

As the appointment sought to be made by the Employer was a temporary one, the Employer was not obliged to advertise the appointment as the Collective Agreement, according to the definition of staff in clause 1.03, only applies to Intermediate and Junior staff who are to be appointed on the basis of permanent tenure. Consequently the Employer has not breached the Collective Agreement.

AWARD

The Collective Agreement applies only to those Intermediate and Junior Staff who are employed as permanent employees.

The Collective Agreement does not impose an obligation on the Employer to employ Intermediate and Junior Staff as permanent employees.

The Employer is not in breach of the Collective Agreement by employing Intermediate and Junior Staff on fixed term contracts.

The Employer is not in breach of clause 4.01.01 of the Agreement.

The appointment of Ms Yee to the position of Student Officer is of a temporary nature. The extension of that appointment has not altered the temporary nature of her tenure.

The Employer is not in breach of clause 4.03.03 or 3.01.01 of the Agreement.

DATED at Suva this 25^th day of May 2004.

Mr W D Calanchini
ARBITRATION TRIBUNAL