Fiji Electricity and Allied Workers Union v Fiji Electricity Authority [2004] FJAT 50; Award 52 of 2004 (22 November 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 52 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY AND ALLIED WORKERS UNION

AND

FIJI ELECTRICITY AUTHORITY

FEAWU: Mr F Anthony with Mr J Paul
FEA: Mr J O’Connor with Mr P Vunituraga

DECISION

This is a dispute between the Fiji Electricity and Allied Workers Union (the "Union") and Fiji Electricity Authority (the "Employer") in respect of items 1,2,3,4 and 7 of the Union’s Log of Claims for 2003.

A trade dispute was reported by the Union on 5 January 2004. The report was accepted on 28 January 2004 by the Chief Executive Officer who referred the dispute to conciliation. As the dispute was not settled the Minister authorized the Chief Executive Officer to refer the 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 14 April 2004 with the following terms of reference:

"I do hereby refer items 1,2,3,4 and 7 of the said trade dispute to the Permanent Arbitrator for settlement over the failure to negotiate, conclude and reach an agreement over the Union’s Log of Claims for the year 2003, which the Union contends the Authority’s action to delay in reaching an agreement of the Union’s 2003 Log of Claims is unfair and unwarranted, hence seeks immediate dialogue to reach an amicable settlement over its claims.

The log of Claims is:

1. Wages and Allowances

The Union is seeking a 5% increase in wages and allowances for all its members effective 1 August 2003.

2. Retirement Benefits

Retirement benefit for all FEAWU members is to be improved from current 48 days to 60 days and 12 days thereafter.

3. Overtime Payment

All time worked outside normal working hours in particular on Saturdays shall attract double the normal rate of pay.

4. Bonus

To bring about a level of consistency amongst the same group of workers therefore the Union is seeking a bonus payment of $300.00 per member to be paid at the end of each calendar year.

5. ...................

6. ...................

7. Job Evaluation

Commencement of Job Evaluation exercise for all un-established member employees which shall be backdated from the time of the claim made.

The Union reserves the right to raise all other matters during negotiations that may have not been covered through this claim".

The Dispute was listed for a preliminary hearing on 12 May 2004. On that day the parties were directed to file preliminary submissions on or before 9 June 2004 and the Dispute was listed for further mention on 18 June 2004. On that day the dispute was listed for a two day hearing commencing on 6 September 2004.

When the hearing of the Dispute commenced on 6 September 2004, the Tribunal was advised that there had been an agreement reached in respect of four of the matters which were the subject of the reference and that the only outstanding issue concerned wages and allowances.

The hearing of the Dispute was adjourned to 9.30 am on 7 September 2004 to allow the parties further time to obtain instructions and conduct further negotiations.

However, when the parties returned to the Tribunal the following day, they informed the Tribunal that the agreement could not be finalized due to the insistence by the Employer of a "no strike" clause to be included in the agreement.

The parties informed the Tribunal that they wished to make written submissions in respect of the five matters which had been referred to the Tribunal. As a result a timetable for the filing of final submissions was determined. The Union filed its final submissions on 24 September 2004. The Employer filed answering submissions on 15 October 2004 and the Union filed a brief submission in reply on 3 November 2004.

The submissions have been prepared on the basis that the Tribunal is required to settle the Dispute by making an award in respect of each of the five matters specified in the Reference.

Wages and Allowances

The Tribunal has read the submissions on this issue. The tribunal has also considered the agreements made between the Employer and the Fiji Electricity Workers Association dated 10 June 2004 and the Employer and the Electrical Trades Union of Fiji dated 26 March 2003.

The Tribunal has concluded that it is appropriate to award the Union’s members a total increase of 4% under this heading with effect from 1 August 2003. This consists of a 3% increase as COLA and a 1% wage increase.

Retirement Benefit

The submissions on this issue were brief. The Employer did not raise any substantive objection to the claim. The Tribunal awards the Union 50 days after 7 years of service and thereafter 10 days for every year of service.

Overtime Payment

In view of the submissions, the Tribunal awards the Union the rate of double time for overtime worked on Saturdays.

Bonus Payment

The bonus payment is a matter which should be subject to further negotiation between the parties and is therefore rejected as presently claimed. The Tribunal has not been informed as to the content of clause 12(b) (v) of the Collective Agreement.

Job Evaluation

There is substantial agreement between the parties on the need to conduct a job evaluation exercise. The Tribunal is reluctant to set out a timetable which may turn out to be unrealistic. The Tribunal accepts that the terms of reference for such an exercise should at least include the matters outlined by the Employer in its letter dated 24 May 2004 to the Union’s General Secretary. The Terms of Reference should be able to be finalized by the parties by the first week of December. It is noted that the parties appear to have agreed that the job evaluation is to have retrospective effect from 1 August 2002. The exercise should be completed by the end of March 2005.

There is one final observation which needs to be made. A considerable part of the submissions has dealt with the existence of a "no-strike" clause in the agreement between the Employer and the Electrical Trades Union of Fiji (ETU). Such a clause does not appear in the Agreement between the Employer and the Fiji Electricity Workers Association (FEWA).

The Tribunal has noted the Employer’s contention that the benefits derived by the ETU members under the agreement with the Employer have been negotiated on the basis that there has been mutual agreement concerning the inclusion in the agreement of such a clause.

The Tribunal has also noted the submissions made by the Union concerning the background to that agreement.

The Tribunal’s Award in the terms stated above has been made without any reference to a no strike clause.

The Tribunal is of the opinion that there is in Fiji a right to strike under the law and as a consequence of certain International Labour Organization conventions. The right to strike is subject to the limitations which are set out in section 33 (4) of the Constitution. The provisions in the Trade Disputes Act dealing with strike activity are consistent with those limitations.

The Tribunal does not consider it to be appropriate to include in an Award a term which would have the effect of granting certain benefits upon the condition that there be a "no-strike" clause inserted into an agreement between the parties.

AWARD

The Award of the Tribunal is contained in the aforegoing decision.

DATED at Suva this 22^nd day of November 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL