Airports Fiji Limited v Fiji Public Service Association [2004] FJAT 24; Award 18 of 2004 (24 June 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO.18 OF 2004

INTERPRETATION OF
AN AWARD

IN THE DISPUTE BETWEEN

AIRPORTS FIJI LIMITED

AND

FIJI PUBLIC SERVICE ASSOCIATION

FPSA: Mr Rajeshwar Singh
AFL: Mr K Vuataki

INTERPRETATION

In Award No.28 of 2003 dated 15 August 2003 the Arbitration Tribunal settled a trade dispute between the Fiji Public Service Association (the "Association") and Airports Fiji Limited (the "Employer") pursuant to a Reference dated 12 August 2002 from the Permanent Secretary in accordance with Section 6(1) of the Trade Disputes Act Cap 97.

The Dispute was referred for settlement over:

"(i) AFL’s refusal to negotiate the Association’s Log of Claims for a 10% salary and wages increase with effect from 1 January 2001,

(ii) AFL’s refusal to negotiate the Association’s Log of Claims for a 20% increase in all work related allowances with effect from 1 January 2001".

By letter dated 13 October 2003, the Association sought to make an application under section 27 of the Trade Disputes Act. In that letter the Association raised two specific issues upon which it sought clarification.

The first issue is dealt with in paragraphs 1.1 to 1.10 of the letter. In particular the Association claims that it did challenge the "Naikarua Affidavit" by way of rebuttal in its written submissions from pages 10 to 16. It claims that there are good grounds for further clarification of this important aspect.

The second issue is an assertion by the Association that the second part of the terms of reference dealing with a claim for a 20% increase in allowances was not dealt with in Award No. 28 of 2003 and therefore is yet to be determined by the Tribunal.

Section 27(1) of the Trade Disputes Act provides:

"(1) If any question arises as to the interpretation of any award of a Tribunal, the Minister or the Permanent Secretary or any party to the Award may apply to the Tribunal for the determination of such question, and the Tribunal shall decide the matter either after hearing the parties, or without hearing the parties if it thinks fit. The determination of the Tribunal shall be notified to the parties and Tribunal shall be notified to the parties and shall thereafter be deemed to form part of and shall have the same effect in all aspects as the original award.

(2)....."

The jurisdiction bestowed upon the Tribunal by section 27 is a limited one of interpretation of a final award. As such it represents a statutory exception to the general rule that once the Tribunal has finished making its decision its grant of jurisdiction is terminated and thereafter it has no power to render any further decision or award. Once the Tribunal has delivered an Award settling the trade dispute, it is said to be "functus officio".

When the application for interpretation of the Award came before the Tribunal by way of preliminary hearing on 3 March 2004, the parties were directed to provide written submissions on the question of jurisdiction and on the merits of the application.

So far as jurisdiction is concerned, the issue is whether the two matters raised by the Association in its letter are questions arising as to the interpretation of Award No.28 of 2003 thereby activating the jurisdiction given to the Tribunal under Section 27.

As previously noted, the first matter is related to a proper consideration of the material provided to the Tribunal by the Association in relation to the wages claim. The Association claimed that the Tribunal had incorrectly concluded that affidavit evidence had not been challenged by the Association. The Association claimed that the Affidavit material had been challenged in detail in its final written submissions.

At the preliminary hearing the Tribunal indicated to the parties that this issue was not a question of interpretation. The Association claims that the Tribunal did not consider at all or sufficiently relevant material put forward by the Association. It was noted that such a claim should proceed by way of an application for judicial review in the High Court.

However, it is appropriate to make one further observation in relation to this question. When the Tribunal made the comment on page 4 of the Award that "Simione Naikarua’s unchallenged affidavit unequivocally states .........", the use of the word "unchallenged" needs to be looked at in the context of the difference between evidence and submissions. In all probability the Tribunal used the word "unchallenged" in the sense that the Association did not adduce any evidence which challenged the contents of the affidavit. It should be noted that written submissions are not evidence and any factual material in a written submission cannot be relied upon unless it was adduced either as evidence during the course of the hearing in the form of oral or documentary evidence or as evidence by affidavit.

The second matter concerns the claim for an increase in allowances. Once again this is not really a question of interpretation. If the Tribunal failed to complete its task by considering and settling part of the terms of reference then it is not "functus officio". The Tribunal is required to hear and determine all matters necessary to settle the trade dispute the subject of the Reference from the Permanent Secretary. If the claim for an increase in allowances was not dealt with in Award No.28 of 2003 then the task has not been completed by the Tribunal.

Having considered the submissions filed by the parties the Tribunal is of the opinion that the question of an increase in allowances was considered and dealt with in Award No.28 of 2003. In the reasons which are set out on pages 4 and 5 of the Award, the Tribunal has indicated that it did not consider it appropriate to award an increase in allowances. Particular reference is made to the first dot point on page 5 of the Award which states:

"Similarly since the ‘other’ workers no longer enjoy their previous allowances, any increases in the allowances of "FPSA workers" would be inconsistent with the dictates of equity and fairness".

Having reached the conclusion that the Tribunal has settled the dispute on the basis that there should not be an increase in allowances as claimed, the terms of reference have been properly addressed. The task given to the Tribunal was completed and there is no jurisdiction for the Tribunal to re-open or re- consider the Award.

The Association’s claim appears to be that in Award No. 28 of 2003 the Tribunal has either failed to understand the thrust of the submissions or has taken into account matters which it should not have considered and failed to consider matters which it should have considered The Association goes on to claim that as a result the Tribunal has reached the wrong conclusions. However, these are not matters of interpretation. If the Association wishes to challenge the Award relating to allowances it must do so by way of reliance upon the grounds for an application for judicial review.

The Tribunal considers that an application for interpretation of an Award under section 27 cannot include an application for the Tribunal to comment on the correctness of a previous award or to amend a previous award.

In conclusion, it follows that there is no question arising as to interpretation of the Award for the consideration of this Tribunal under section 27.

DATED at Suva this 24^th day of June 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL