Fiji Public Service Association v Maritime and Ports Authority of Fiji [2004] FJAT 32; Award 26 of 2004 (20 July 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 26 of 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

MARITIME AND PORTS AUTHORITY OF FIJI

FPSA: Mr R Singh
MPAF: Mr J Apted

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and the Maritime and Ports Authority of Fiji (the Authority) concerning the Association’s Log of Claims for 2003.

A preliminary issue concerning section 16 of the Trade Disputes Act Cap. 97 was raised by Counsel for the Authority. The parties were directed to file written submissions when the Dispute was mentioned before the Tribunal on 18 June 2004. The parties filed their submissions and subsequently appeared before the Tribunal on 16 July 2004 to make any further necessary submissions.

Section 16 of the Trade Disputes Act provides:

"(1) Where any strike on lock out is contemplated by persons employed in or in control of an essential service in pursuance of a trade dispute with their employer the following procedure shall be followed:

(a) a report of the trade dispute shall be made to the Permanent Secretary in accordance with the provisions of section 3;

(b) at least twenty-eight days’ notice of strike or lock out shall be given in writing to the Permanent Secretary and to the employer of every person by or on behalf of whom it is given;

(c) the notice shall be signed by the person or persons giving it and specify the names, addresses and employment of all persons by or on behalf of whom it is given and if given by a trade union, the name of such trade union;

(d) the notice shall state the date on which the strike or lock out is contemplated; and

(e) the notice shall be delivered by hand or by forwarding the same by registered post

2. Where the report of a trade dispute in an essential service does not comply with the provisions of subsection (1) or does not specify the date on which the strike or lock out is contemplated or the strike or lock out does not take place on the date it is contemplated the report shall be deemed not to have been made."

A trade dispute was reported by the Association by letter dated 9 February 2004. The matter in dispute was reported as being the refusal of the Authority to negotiate the 2003 Log of Claims. In the letter reporting the dispute the Association made no reference to any contemplated strike action.

The report was accepted by the Labour Ministry’s Chief Executive Officer by letter dated 27 February 2004 and subsequently referred to conciliation.

By letter dated 14 April 2004 to the Association the Ministry’s Chief Executive Officer formally declared the conciliation to be deadlocked.

By letter dated the same date the Association wrote to the Registrar of Trade Unions. The letter indicated that the Association would like to conduct a secret ballot to seek a mandate from its members to take industrial action against the Authority. The letter also stated that the Association wished to obtain a mandate for strike action from members in lieu of the Authority’s refusal to negotiate and agree to the COLA claim in the 2003 Log of Claims.

As a result of the deadlocked conciliation process the Minister authorized the Chief Executive Officer to refer the trade dispute to an Arbitration Tribunal for settlement pursuant to section 6 (2) (b) of the Trade Disputes Act. The Dispute was referred to the Permanent Arbitrator on 23 April 2004 with the following terms of reference:

"............for settlement over the refusal of the Maritime and Ports Authority of Fiji to negotiate the union’s log of claims for 2003."

By letter dated 10 May 2004 and addressed to the Permanent Secretary, the Association formally gave notice of strike action under section 16 of the Trade Disputes Act. The letter indicated that strike action was contemplated on 11 June 2004 at all of the Authority’s stations nationwide.

By letter dated 1 June 2004 and addressed to the Chief Executive Officer, the Association indicated that the Notice of strike action dated 10 May 2004 "is hereby withdrawn".

It was not disputed that the strike was contemplated by persons employed in an essential service. Nor was it disputed that the notice of strike action and the contemplated strike was in pursuance of a trade dispute with the employer. There was no complaint made by the Authority of the contents of the strike notice.

The issue was whether the Association was required to specify the contemplated date of the strike in the report of the trade dispute.

Counsel for the Authority submitted that the words of subsection (2) of section 16 lead to the conclusion that not only must the Notice of strike action required by sub section (1) (d) state the contemplated date of the strike action but the report of the trade dispute must also state the date on which the strike is contemplated. The Authority’s argument is that no such date was stated in the report lodged by the Association and as a result the report of the trade dispute is deemed not to have been made. This is the consequence provided for by section 16 (2) if the requirements stated in that sub-section are not satisfied. The Authority then submits that as the report is deemed not to have been made there is no longer any dispute before the Tribunal.

The Association contends that the trade dispute has been reported and accepted in accordance with the requirements of the Trade Disputes Act. The Association then argues that the parties are free to continue with the various dispute settling mechanisms for which provision is made in the Act, including conciliation, arbitration or industrial action. The Association also claims that the procedure adopted by the Association in this dispute is the same procedure which it and other union have always followed in the past.

The Tribunal acknowledges that this preliminary issue does not appear to have been raised before the Tribunal on any previous occasion.

The Tribunal accepts the submission put forward by the Authority. The words of sub-section 2 of section 16 clearly support the submission that it is necessary to state the date on which the strike is contemplated in the report of the trade dispute. This was not done in this case and both parties accepted this fact. There is no requirement to state any other information concerning the proposed strike in the report of the trade dispute. However the contemplated date must be stated.

It is noted that this Ruling will have some repercussions in relation to the sequence of activities which must now be followed by a union contemplating strike action by its members who are employed in an essential service in pursuance of a trade dispute with the employer.

This Ruling leaves open the question of whether a purported withdrawal of a strike notice, where there has been in all other respects compliance with section 16, can avoid the consequences which are stated in section 16(2). This may become an issue as section 16 (2) also provides that when the strike does not take place on the date it is contemplated, then the report is deemed not to have been made.

The Association is at liberty to re-report the same trade dispute to the Chief Executive Officer in accordance with section 3 of the Act. The first report is now deemed not to have been made.

PRELIMINARY RULING

As the report of a trade dispute dated 9 February 2004 did not specify the date on which the strike was contemplated, the report is deemed not to have been made pursuant to the provisions of section 16(2) of the Act.

As a consequence there is no live dispute before the Tribunal.

DATED at Suva this 20^th day of July 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL