Fiji Airline Pilots Association v Air Pacific Ltd [2004] FJAT 54; Award 57 of 2004 (16 December 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 57 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI AIRLINE PILOTS ASSOCIATION

AND

AIR PACIFIC LIMITED

FAPA: Mr P Rae
Air Pacific: Ms G Phillips and Mr N Barnes

DECISION

This is a dispute between Fiji Airline Pilots Association (the "Association") and Air Pacific Limited (the "Employer") concerning the interpretation and application of clause 10.5.1 of the Collective Agreement.

A trade dispute was reported by the Association on 11 September 2003. The report was accepted on 20 October 2003 by the Permanent Secretary who referred the dispute to a Disputes Committee. As the Employer failed to nominate a member to the Disputes Committee, the Minister authorized the Permanent Secretary to refer the Trade Dispute to an Arbitration Tribunal for settlement pursuant to section 5A(5)(a) of the Trade Disputes Act Cap.97.

The Dispute was referred to the Permanent Arbitrator on 22 March 2004 with the following terms of reference:

"...... for settlement over the interpretation and application of clause 10.5.1 of the Agreement made and entered on 18 September 2001. The Association claims inter alia that Air Pacific Limited is in breach of the aforesaid clause by employing the following contract Pilots, namely":

[23 contract pilots listed by name]

who are less senior than the Pilots who are members of the Fiji Airline Pilots Association employed by Air Pacific Limited. The following is a list of Fiji Airline Pilots Association members that have been deprived by Air Pacific Ltd:

[23 pilots listed by name]
The dispute was listed for a preliminary hearing on 12 May 2004. On that day the parties were directed to file preliminary submissions by 9 June 2004 and the Dispute was listed for further mention on 18 June 2004.

At the request of the parties, the Dispute was listed for mention on 20 May 2004. On that day the parties submitted that there was a preliminary issue upon which the Tribunal should deliver a ruling prior to the final hearing. By consent the Tribunal vacated the directions given on 12 May 2004 and gave fresh directions concerning the filing of submissions in respect of the preliminary issue.

The Dispute was again listed for mention on 18 June 2004. On that day the Employer sought an extension of time to file its submissions on the preliminary issue. As the Association did not oppose the application, the Tribunal granted the Employer a further 14 days.

The Employer eventually filed its submissions on 16 September 2004 and the Association filed answering submissions on 25 October 2004.

When the Dispute came on for mention on 19 November 2004, the parties informed the Tribunal that they did not wish to make any further submissions on the preliminary issue and sought a Ruling on notice from the Tribunal.

The preliminary issue is whether a contract pilot is a less senior pilot for the purposes of clause 10.5.1 of the Collective Agreement.

The starting point in considering the issues raised by the parties in their written submissions is to determine the limits of the Tribunal’s jurisdiction. In the State v the Permanent Arbitrator and the Fiji Public Service Association ex parte Fiji Islands Revenue and Customs Authority (Judicial Review No. 11 of 2001) Justice Shameem at page 8 observed:

"The jurisdiction of the Permanent Arbitrator is therefore limited to the trade dispute referred to him for decision. His jurisdiction is limited to his terms of reference"

The Dispute which has been referred to the Tribunal concerns the interpretation and application of clause 10.5.1 of the Agreement. In particular the Tribunal is required to determine whether the Employer is in breach of that clause by employing 23 contract pilots whom the Association claims are less senior than 23 pilots who are members of the Association employed by the Employer.

Clause 10.5.1 states:

"Where a pilot who is eligible for progression in accordance with clause 10.3.1 and 10.4 above and through no fault of his own is by passed by a less senior Pilot, he shall receive the applicable type increase as from the date the less senior Pilot qualifies".

It is clear from the wording of clause 10.5.1 that the breach, if there is one, is not in the act of employing contract pilots but in not paying the applicable type increase to an eligible pilot who has been by-passed by a less senior pilot. It is assumed that the Association is claiming that eligible pilots have been by-passed by less senior pilots and are therefore in all other respects entitled to receive the applicable type increase.

In its written submissions, the Association also claims that the Employer is in breach of the Agreement in respect of its failure to consult and in respect of clause 1.0 and 24.1 of the Agreement. These matters are not part of the reference and fall outside the jurisdiction of the Tribunal in this Dispute.

The Tribunal is satisfied that this preliminary issue is a necessary first step in settling the dispute and does therefore fall within the terms of reference. If a contract pilots does not and cannot fit the description of "a less senior pilot, then there is no obligation on the part of the Employer to pay the applicable type increase to any eligible pilot. If a contract pilot can fall into the category of a less senior pilot then whether the Employer is liable to pay the applicable type increase will involve a consideration of the eligibility requirements and will necessitate a hearing for the purpose of calling evidence.

Clause 10.5.1 is concerned with the entitlement of an eligible Pilot to be paid the applicable type allowance when he is by-passed by a less senior Pilot.

The word "Pilot" is defined in clause 2 of the Agreement as:

"Pilot" means and includes duly qualified Captains of all grades, First Officers of all grades, second officers, engaged in the flying of Commercial Aircraft but shall not include any other members of aircrew".

An eligible pilot is one who is eligible for progression in accordance with clauses 10.3.1 and 10.4 of the Agreement.

Clause 10.3.1 states:

"Pilots selected for flying duties with the Company shall progress subject to minimum experience requirements (see 10.4) through aircraft fleet is detailed in the Flight Operations Training Manual".

Clause 10.4 states:

"The minimum experience requirements as detailed in the Flight Operations Training Manual will be the result of discussions between the Company and the Association. Any changes to these will be discussed with the Association".

The question of seniority is dealt with in a number of provisions in clause 10 of the Agreement.

Clause 10.2.2 states:

"The Company shall maintain the Pilots" seniority list which shall specify the seniority member and name of all Pilots and the date of employment on the flight staff of the Company"

Clause 10.1.1 states:

"The seniority number of a Pilot shall be decided by the date of appointment to the flight staff of the Company and shall where and as prescribed in the provisions of this agreement".

Clause 10.1.4 states:

"A Pilot once having established a seniority position in accordance with 10.1.1 and 10.1.2 shall not lose that position except by termination of employment as a Pilot with the Company".

If a line were to be drawn at this point there it could be easily be included that these provisions applied to all Pilots employed by the Company.

However, there are three other significant provisions in the Agreement which must be considered.

The first provision is clause 3.1 which states:

"This agreement shall be binding on Air Pacific Limited and the Fiji Airline Pilots’ Association in respect of Pilots who are employed by the Company and replaces all previous conditions of employment whether written or implied except that it shall not apply to Pilots in the following categories:

(i) Executive Pilots

(ii) Contract Pilots

(iii) Cadet Pilots

The effect of this clause is that the parties are bound by the terms of the agreement which applies in respect of all Pilots employed by the Company (whether Association members or not) except for Executive Pilots, Contract Pilots and Cadet Pilots.

Contract Pilot is defined in clause 2 as:

"an expatriate Pilot employed by the Company on contract for a specified period".

The second relevant provision is clause 10.1.5 which states:

"Contract Pilots are excluded from Company Seniority and any who subsequently obtain Fiji Citizenship while continuing in Company Employment are to be ranked for the purposes of seniority from the date of obtaining Fiji Citizenship"

Finally, clause 3.3 states:

"Prior to appointment of a Contract Pilot by the Company, consultations with the Association on the terms of the Contract to be offered and accepted will take place".

The Association claims that the pilots specified in the reference have been denied progression and one entitled to what it terms "by-pass pay" under clause 10.5.1.
Whilst the Association appears to acknowledge that the Collective Agreement does not apply to Contract Pilots unless and until the contract Pilot requires Fiji Citizenship by naturalization, it claims that the consequence of this together with what it says is the implied effect of clause 3.3 is that contract pilots are to be considered as less senior to "National Pilots". The thrust of the submission appears to be that because Contract Pilots are outside of the agreement they are therefore less senior than pilots covered by the Agreement.

The Employer points out that clause 10.5 of the Agreement clearly states that Contract Pilots are excluded from Company seniority. The Employer claims that the plain words of the agreement clearly indicate that Contract Pilots are excluded from the operation of the Agreement. It claims that there is no basis for inserting an implied term into clause 10.5.1 which would have the effect of extending the application of the Agreement for the purposes of determining who was a less senior pilot.

The Tribunal has carefully assessed the submissions filed by the parties and considered the arguments put forward in those submissions.

If the Tribunal accepts the Association’s submission than it would appear that on every occasion when a contract pilot is employed by the Company, then, so long as that Contract Pilot remains an expatriate, he will be less senior than all the "National Pilots" employed by the Company.

The Tribunal cannot accept this proposition as the consequences of such an interpretation when though through are unworkable.

However, the Tribunal acknowledges that the position taken by the Employer means tat there may be occasions when a "National Pilot" is deprived of profession and the applicable type increase under clause 10.5.1 when a Contract Pilot is employed by the Company.

The Tribunal has concluded that the Agreement as presently drafted allows the Company to employ expatriate pilots and that in doing so it does not breach clause 10.5.1. Furthermore, the Tribunal concludes that Contract Pilots, because they are not included within the scope of the agreement, cannot be less senior pilots for the purposes of clause 10.5.1 of the Agreement. Finally and as a consequence, "National Pilots" are not entitled to "by-pass pay" when the Company employs a Contract Pilot as such a pilot is not a less senior pilots for the purposes of clause 10.5.1

AWARD

Clause 10.5.1 does not prohibit the Company from employing Contract Pilots who are defined as expatriate pilots under clause 2 of the Agreement.

As the Agreement expressly excludes Contract Pilots from its operation, a Contract Pilot cannot be a less senior pilot for the purposes of clause 10.5.1.

DATED at Suva this 16^th day of December 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL