Tropik Woods Employees and Allied Workers Union v Tropik Woods Industries Ltd [2004] FJAT 36; Award 30 of 2004 (19 August 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 30 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

TROPIK WOODS EMPLOYEES AND ALLIED WORKERS UNION

AND

TROPIK WOODS INDUSTRIES LIMITED

Union: Mr M Serukalou
Company: Mr S Valenitabua

DECISION

This is an application for variation of Award No 41 of 2002 dated 25 November 2002 (the Award).

The Union applied to the Minister for permission to make the application to vary the Award pursuant to section 28 of the Trade Disputes Act Cap. 97.

The basis of the application is that there has been an omission in the Award concerning the definition of "casual" contained in the Employment Act Cap. 92.

The Minister gave his consent for the making of the application on 5 March 2003. The application was listed for mention on 15 April 2003. There was no appearance by the Cmpany and the application was listed for hearing on 23 September 2003. On that day it was agreed that the application would proceed by way of written submissions. Submissions were eventually filed by the Union on 18 March and by the Company on 27 July 2004.

It should be noted that the Company has not sought to challenge, either in the Tribunal or elsewhere, the jurisdiction of the Tribunal to determine the application for a variation of the Award.

The application to vary the Award is concerned specifically with only one of the five grievors who were the subject of the initial trade dispute. At page 6 of the Award the Tribunal stated:

"Quite plainly, with the exception of Mesulame Namua, all other grievants have been in the employment of the Company from 26/10/99 to 26/1/00, although admittedly not continuously in the true sense of the word."

The effect of the Award was that four of the five grievors were determined to have the status of permanent employees pursuant to clause 9 of the Memorandum of Agreement signed by the parties and dated 26 October 1999.

The Tribunal’s reason for excluding Mesulame Namua from the status of permanent employee was apparently based on its construction of clause 9 which came into effect on 26 October 1999. Clause 9 provides:

"If casual works more than 3 months without any break he shall automatically become full time (permanent) employee."

The Tribunal took the view that the three month qualifying period commenced on and from 26 October 1999. On page 6 of the Award the Tribunal concluded:

"Only casual workers who have been in employment from 26/10/99 to at least 26/1/00 have the right to be elevated to permanent workers by virtue of clause 9."

As Mesulame Namua’s employment was terminated on 30 December 1999, he fell short of the three months qualifying period prescribed by clause 9 and therefore remained a casual.

In reaching this conclusion the Union claims that the Tribunal failed to have regard to the provisions of the Employment Act. The Award does not make any reference to the provisions of the Employment Act (the Act).

Under the Trade Disputes Act, the Tribunal’s jurisdiction to make an award in any particular dispute begins with the reference from the Chief Executive Officer of the Ministry and concludes when an Award has been published. Where the Tribunal has completed its task it is said to be functus officio and cannot afterwards alter the award except to correct clerical mistakes, accidental slips or omissions, or errors of a merely technical nature.

The Trade Disputes Act provides for two limited exceptions to this general principle of functus officio. First, section 27 gives a limited jurisdiction to the Tribunal to determine any question which arises as to the interpretation of any award. Secondly, section 28 provides for an application to vary any award in the following terms:

"No application to vary any award shall, except with the permission in writing of the Minister, be made within nine months of the publication of the award."

There is no statutory definition of the word "vary" to assist the Tribunal in determining the parameters of this exception to the general principle that the Tribunal is functus officio once it has handed down its award.

In general terms the dictionary meaning of the word would seem to suggest that to vary an award means that the award is to undergo some modification or alteration due to the introduction or intrusion of some change.

In the submissions filed by the parties, in particular the applicant Union, there is no suggestion that circumstances have changed, the introduction of which would justify the Tribunal varying the award. What the submissions have addressed is what amounts to a claim by the Union that the Tribunal has erred in law by failing to consider what the Union considers to be relevant provisions of the Employment Act.

It is the Tribunal’s opinion that the Union’s application is more appropriately a matter for the High Court by way of judicial review.

The Tribunal is of the opinion that the limited jurisdiction to vary an award under section 28 of the Trade Disputes Act does not extend to a review or an appeal function. The Tribunal has no jurisdiction to undertake either a review or an appeal function.

The Minister is tasked with making a decision as to whether or not an application to vary an award may be made within nine months of the publication of an award under section 28 of the Trade Disputes Act. The matters which the Minister considers in making that decision are not specified. However the Minister’s decision does not in any way fetter the discretion which the Tribunal exercises in making its decision as to whether or not the award should be varied. Furthermore the function of the Tribunal is to determine such an application as an independent and quasi-judicial body applying the principles of natural justice and procedural fairness and arriving at a decision according to law.

AWARD

The Tribunal refuses the application to vary Award No. 41 of 2002 for the reasons stated above.

DATED at Suva this 19^th day of August 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL