Fiji Electricity and Allied Workers Union v Fiji Electricity Authority [2004] FJAT 41; Award 35 of 2004 (9 September 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO.35 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY AND ALLIED WORKERS UNION

AND

FIJI ELECTRICITY AUTHORITY

FEAWU: Mr Felix Anthony with Mr John Paul
FEA: Mr John O’Connor

DECISION

This is a dispute between the Fiji Electricity and Allied Workers Union (the "Union") and Fiji Electricity Authority (the "Authority") in respect of three outstanding matters arising from the Log of Claims for the year 2000.

A trade dispute was reported by the Union. The report was accepted by the Permanent Secretary who referred the dispute to conciliation. As settlement could not be effected during conciliation, the Minister authorized the Permanent Secretary to refer the trade dispute to an Arbitration Tribunal for settlement pursuant to section 6 (1) of the Trade Disputes Act Cap.97.

The Dispute was referred to the Permanent Arbitrator on 20 September 2001 with the following terms of reference:

".... For settlement over the following matters:

To adjudicate and make appropriate Award over the under-mentioned items of the Union’s Log of Claims:

Item 3. Authority to increase in superannuation its contribution from 8% to 12% in a dollar on behalf of member employees.

Item 4. 100% re-imbursement of all unused sick leave.

Item 6. Electricity concession".

The Dispute was initially listed for a preliminary hearing on 19 October 2001. On that day the parties were directed to file preliminary submissions by 28 February 2002 and the Dispute was listed for hearing on 26 March 2002.

On the hearing day the parties requested further time to enable settlement discussions to continue. The Tribunal listed the Dispute for mention on 3 May 2002. On that day the parties again sought further time for settlement discussions to continue. The Tribunal listed the Dispute for mention on 7 June 2002.

Eventually the dispute was relisted for hearing on 24 and 25 October 2002. The dates were not convenient for the Authority. In early 2003 the parties informed the Tribunal that they were still engaged in negotiations.

Although the Tribunal sought some indication from the parties as to the progress of their negotiations, it was not until the Tribunal received a letter dated 13 November 2003 from the Authority that it was informed as to the position in the Dispute. The Authority indicated in that letter that it had decided to refer the three matters back to Arbitration.

The Dispute was again listed for mention on 20 January and 10 March 2004. It was listed for hearing on 16 June 2004. On that day the parties informed the Tribunal that they wished to proceed by way of written submissions. The last submission was filed in the Tribunal on 9 August 2004.

The Tribunal has read the submissions filed by the parties and makes the following determinations in respect of each of the three outstanding claims.

Sick Leave Reimbursement

In Award No. 28 of 1999 the Tribunal dealt with this claim and concluded by stating at page four that:

"The Tribunal must balance the needs and interests of both parties in deciding whether a claim is a fair and reasonable one. In this case the Tribunal accepts the Authority’s submission on this claim. It is denied".

In arriving at this decision the Tribunal observed that "although parity with other Unions is an important consideration, it is not decisive".

However, it would appear that since then the Tribunal’s views on this issue have shifted. In Award No.33 of 2002 Tropik Wood Staff Union –v- Tropik Wood at page three the Tribunal stated:

"If a segment of the Company’s workforce (ie. Wage earners) is already entitled to be compensated annually for unutilized sick leave, then this Tribunal believes that the dictates of fairness and uniformity of treatment would demand that the staff component of the employees must be paid likewise".

It is not disputed that the staff employees of the Authority already receive 100% re-imbursement for unused sick leave.

The Tribunal considers that it is appropriate for the Union’s members to be treated in the same manner as other workers employed by the Authority. In view of what appears to becoming a common practice, the Tribunal considers that the unused sick leave should be re-imbursed annually.

Increase in FNPF Contributions

The Union seeks an increase in FNPF contributions for its members from 8% to 12%. It claims that this is in conformity with similar benefits provided to other categories of workers employed by the Authority.

The Tribunal is not satisfied that the Union has explained the bases for its claim for an increase in the FNPF contribution of 4%.

So far as equality of treatment is concerned, it is noted that the Union conceded that the entitlement for the staff officers has changed and stands at 1% for 20 years of service or more. This is set out in clause 23 of the Collective Agreement between the Authority and the Fiji Electricity Authority Staff Association.

If the Union in the present Dispute does not have a clause in its agreement similar to Clause 23 in the Agreement between the Authority and the Staff Association, then it should.

In the interests of fairness and uniformity the Union’s members should be in the same position as members of the Staff Association. They too should receive an amount equivalent to 1% in addition to the amount required to be paid by law after 20 plus years continuous service.

Electricity Concession

The Union seeks an electricity concession for its members. The Union claims that concessions to employees working within an industry is also a common practice both by custom and tradition.

The Authority points out that instrumentalities such as Telecom and PWD do not provide either telephone bill concessions nor water bill concessions to their respective employees.

The Tribunal is not entirely satisfied that section 20 (2) of the Electricity Act Cap.180 prohibits the granting of a concession. However, the Tribunal has taken the view that a concession should not be granted to the Union’s members as it would be inconsistent with the practice which prevails in that sector of the economy which is responsible for the provision of water and telecommunications.

The granting of a concession to the Union’s members would lead to similar claims by the other unions with whom the Authority has entered into Collective Agreement.

This claim is rejected.

AWARD

The Authority is to re-imburse annually unused sick leave to union members.

The Authority is to contribute an additional 1% above the contribution required by law for FNPF contributions for Union members who have served twenty and more years continuous service if such an arrangement is not already in place.

These payments are effective from 1 August 2000.

The claim for an electricity concession is rejected.

DATED at Suva this 9^th day of September 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL