National Union of Hotel and Catering Employees v Turtle Island Lodge [2004] FJAT 45; Award 47 of 2004 (3 November 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 47 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOTEL AND CATERING EMPLOYEES

AND

TURTLE ISLAND LODGE

DECISION

In Award No.1 of 2004 dated 6 February 2004 the Tribunal determined by way of a preliminary ruling that:

"1. The Tribunal has no jurisdiction to examine the decisions made by the Permanent Secretary up to and including the reference of the trade dispute to the Permanent Arbitrator for settlement.

2. Only the parties to the trade dispute may settle the arbitration proceedings before the Permanent Arbitrator. The grievors are not parties to the trade dispute.

3. The dispute will be listed for mention on a date to be advised for the purpose of fixing a hearing date".

The Employer subsequently commenced judicial review proceedings in the High Court and on 13 May 2004 was granted leave to apply for Judicial Review of Award No. 1 of 2004 (JR No.11 of 2004).

On 25 June 2004 the Chief Executive Officer pursuant to section 10 (1) of the Trade Unions (Recognition) Act 1998 determined that the Union membership in employment with Turtle Island Resort was nil percent of the average number of persons in employment with Turtle Island Resort. The Chief Executive concluded that the Union ceased to be entitled for Recognition by Turtle Island Resort with effect from 25 June 2004.

It should be noted that the Union has not sought to challenge either the finding of fact nor the legal consequences of the finding of fact.

It would appear that the Judicial Review application was mentioned before Mr Justice Pathik in Chambers on 2 August 2004. During the course of those proceedings His Lordship suggested that this Tribunal may wish to reconsider the position in view of the Chief Executive Officer’s decision that the Union is no longer entitled to recognition by the Employer.

By letter dated 2 July 2004 the Legal Practitioners for the Employer wrote to the Tribunal requesting directions in view of the Judge’s observations. In that letter it was pointed out that there was as yet no stay order made by the High Court in respect of the proceedings before this Tribunal.

As a result the Dispute was listed for mention on 14 July 2004. On that day leave was granted by the Tribunal for the Employer to file a copy affidavit which exhibited a copy of the Chief Executive Officer’s de-recognition determination dated 25 June 2004. The parties were directed to file written submissions in turn on the effect of the finding of fact and the determination made by the Chief Executive Officer on the status of the Dispute before the Tribunal. The Dispute was otherwise adjourned to a date to be fixed.

The Employer filed its initial submission on 5 August 2004. The Union filed its answering submission on 1 October 2004 and the Employer filed its final reply submission on 6 October 2004. The submissions were detailed and helpful.

The Tribunal has taken the view that this Award will be in the form of a Preliminary Ruling determining whether there is still a live dispute between the parties requiring settlement by way of an Award by the Tribunal.

As noted, the Tribunal is not precluded by law from proceeding to determine this issue as the High Court has not to date granted a stay order. As this is a new issue which was not in existence at the time the Tribunal made its Preliminary Rulings in Award No.1 of 2004, the Tribunal cannot be said to be reviewing its own decision. Furthermore, as Award No. 1 of 2004 was by way of Preliminary Ruling, the Tribunal cannot be said to have exhausted the terms of reference and is therefore not yet "functus officio".

The Employer’s position is that as a result of the finding that the Union has no members among the employees, the Union no longer qualifies to be treated as a party under the Trade Disputes Act Cap.97. Furthermore, in all the circumstances, the Employer submits that the Union now has insufficient interest to justify continuing the hearing.

The basis of the application for a preliminary ruling is that the Union is not representing anyone in the dispute. It is submitted that the Grievors have settled any claim they may have had against the Employer and the Chief Executive Officer’s determination of fact has revealed that the Union now has no members among the employees.

The Union’s position is that once a dispute is referred to the Tribunal no party is at liberty to change the status quo which existed at the time when the dispute was referred to the Tribunal. The Union relies on section 5A(6) and (7) of the Trade Disputes Act Cap.97. The Union submits that the Employer has violated the provisions of Section 5A(6) by signing a deed with the two grievors when the Dispute was before the Tribunal. The Union submits that the Employer has also violated the same section by seeking de-recognition of the Union. The Union’s submissions also refer to constitutional provisions and the validity of the Trade Unions (Recognition) Act 1998.

This Dispute was referred to the Tribunal for settlement pursuant to section 5A(5)(a) of the Trade Disputes Act on 17 July 2001.

Section 5A(5) of the Act states:

"If one or both parties fail to comply with sub-section (2) or where the Disputes Committee is unable to arrive at a decision by consensus or where the Disputes Committee fails to comply with sub section (3) of this Section:

(a) The Permanent Secretary shall refer the dispute to the Minister who shall authorize the Permanent Secretary to refer such dispute to a Tribunal for settlement; and

(b) The Tribunal after hearing the parties to the dispute shall make an award which shall be binding on the parties to the dispute".

The submissions filed by the parties have raised a number of issues concerning the meaning and effect of section 5A(5).

The effect of section 5A(5) is that in respect of a trade dispute involving a dispute of rights, if one of the three events referred to in the section occur, then the dispute must be referred to an arbitration tribunal for compulsory arbitration. After the parties have been given an opportunity to be heard, the Tribunal must make an award which is binding on the parties to the dispute.

Although section 5A(5) refers to a "dispute", this word is defined in section 2 as meaning "a trade dispute".

Under Section 5A(5) there are a number of steps which occur before a binding award is made by the Tribunal. First, the trade dispute is referred to the Minister by the Permanent Secretary. Secondly, the Minister authorizes the Permanent Secretary to refer the trade dispute to a Tribunal for settlement. Thirdly, the Tribunal hears the parties to the trade dispute. Finally the Tribunal makes an award in respect of the trade dispute which is binding on the parties.

The common denominator, as it were, in each step, is the existence of a trade dispute. It is the Tribunal’s view that the jurisdiction of the Tribunal to make a binding award on the parties pursuant to section 5A(5) is dependent upon the continuing existence of a trade dispute between the parties.

The present definition of trade dispute is set out in section 2 of the Trade Disputes (Amendment) Act 1998 and provides:

"trade dispute" means any dispute or difference –

(a) between any employer and a registered trade union recognized under the Trade Unions (Recognition) Act (Cap 96A) and connected with the employment or with the terms of employment or the conditions of labour of any employee;

(b) between an employer and a registered trade union that has applied for recognition under the Trade Unions (Recognition) Act and connected with the termination of employment of any employee during the time when the application for recognition by the trade union is being processed; or

(c) between an employer and an employee who is a member of a registered trade union that has applied for recognition under the Trade Unions (Recognition) Act and connected with the termination of employment of that employee during the time when the application for recognition of the trade union is being processed".

Although paragraph (a) of the definition refers to the Trade Unions (Recognition) Act Cap 96A, it is apparent that at the material dates in this dispute, the relevant applicable legislation is the Trade Unions (Recognition) Act 1998 (No.53 of 1998) (see section 18).

The question for the Tribunal is whether there is still a trade dispute in existence before the Tribunal which requires settlement by way of a binding award. The Tribunal is not concerned with the question whether there was a trade dispute in existence prior to the reference to the Tribunal. This Tribunal has consistently taken the view that it has no jurisdiction to examine the decisions taken or the discretions exercised by either the Minister or the Permanent Secretary prior to the reference of the dispute to the Tribunal.

In the Affidavit of Marigold Moody sworn on 7 July 2004, there is an annexure marked MM1 being a copy of a letter dated 19 June 2003 from the Employer’s Legal Practitioners to the Permanent Secretary for Labour, Industrial Relations and Productivity, the first full paragraph of which states:

"On 22 January 2003 you issued a Compulsory Recognition Order (CRO) under the Trade Unions (Recognition) Act 1998 (the "Act") against "Turtle Island Resort requiring it to accord recognition to the Union for the purposes of collective bargaining with effect from 7 November 2002".

The application for compulsory recognition had been made by the Union by letter dated 13 March 2000.

The Dispute was referred to the Tribunal on 17 July 2001.

The Tribunal accepts that from the date of referral of the Dispute to the Tribunal, there was in existence a trade dispute under paragraph (b) of the relevant definition of trade dispute.

The definitions of trade dispute make it clear that recognition is an element which must be shown to exist in one of two forms. There must be a registered trade union which has been recognized (either voluntarily or by compulsory order) or there must be a registered trade union which has applied for recognition (either voluntary or compulsory). For the trade dispute, as defined, to continue in existence the registered trade union must continue to be recognized, become recognized or its application for recognition remains pending.

When the compulsory recognition order became effective from 7 November 2002, a trade dispute continued in existence but from that time under paragraph (a) of the definition of trade dispute.

However, when the Chief Executive Officer found that the registered Union ceased to be entitled to recognition then the element of recognition required of a registered trade union for the existence of a trade dispute ceased to exist. As a result there was no longer a trade dispute as defined before the Tribunal.

In the event that this view is subsequently held not to be correct, the Tribunal has also concluded that there is no longer a trade dispute in existence as a consequence of the combined effect of two matters raised by the Employer. First, the two grievors have settled their grievance with the Employer by private Deeds of Settlement. Secondly, as a result of the Chief Executive Officer’s finding that the Union no longer has any members among the employees, any interest which the Union may have had in any declaration which the Tribunal may have been prepared to consider is no longer present.

The Tribunal is also prepared to exercise its discretion and decline to proceed to make a binding award on the basis that it would serve no useful purpose and would be futile.

The Tribunal has taken the view that by allowing the parties to make detailed written submissions there has been sufficient compliance with the provisions of section 5A(5)(b) of the Act. There was no request by either party for an oral hearing for the taking of evidence in respect of this preliminary issue.

The constitutional issues and the penal provisions of section 5A(6) & (7) of the Act which have been raised by the Union are beyond the terms of reference of this Dispute and as a result fall outside the jurisdiction of the Tribunal.

The Tribunal is not satisfied that the two workers (the grievors) have been denied any right to seek redress for unfair dismissal. They initially sought union assistance which the union provided by reporting the existence of a trade dispute. The Union then assumed the role of a party to a trade dispute. The union has not sought to challenge the statutory actions of the Chief Executive Officer which have now ultimately lead to the conclusion there is no longer a trade dispute in existence.

Whatever the wider issues may be in relation to the nature of the industrial relations which exist between the Union and the Employer, this Tribunal’s jurisdiction is always limited to the issues which require settlement pursuant to the terms of reference.

PRELIMINARY RULING

For the reasons stated above the Tribunal finds that there is no longer a trade dispute in existence between the parties.

DATED at Suva this 3^rd day of November 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL