Fiji Public Service Association v Fiji Islands Revenue and Customs Authority [2004] FJAT 55; Award 58 of 2004 (1 December 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 58 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY

FPSA: Mr R Singh
FIRCA: Mr K Buatoka

DECISION

This is a dispute between Fiji Public Service Association (the Association) and the Fiji Islands Revenue and Customs Authority (the Employer) concerning the refusal to pay housing allowance to Mr Deo Karan (the Grievor).

A dispute was reported by the Association on 2 July 2002. The report was accepted on 24 July 2002 by the Permanent Secretary who refined the dispute to a Disputes Committee. As a consensus decision was not reached, the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5) (a) of the Trade Disputes Act Cap 97.

By latter dated 13 May 2004, the Dispute was referred to the Permanent Arbitrator with the following terms of reference:

"...... for settlement over the refusal on the part of the Authority to pay Housing Allowances to Mr Deo Karan, a member of the association in accordance with clause 51.1 of the Collective Agreement dated 8 February 2002".

The Dispute was listed for a preliminary hearing on 18 June 2004. On that day the parties were directed to file preliminary submissions by 9 July and the Dispute was listed for further mention on 14 July 2004.

The Association filed its preliminary submissions on 12 July 2004 and on 14 July. The Employer was decided to file its submissions by 28 July 2004. The Dispute was again listed for further mention on 11 August 2004. After two further mention listings, the parties advised the Tribunal on 19 November 2004 that the Dispute was to the settled by the Tribunal on the submissions and that a hearing was not necessary. The Employers had filed the submission on 2 August 2004.

The claim by the Association on behalf of the Grievor ( Mr Karan) is made under clause 51.1 of the Collective Agreement which states:

"Employees of the Authority will continue to be eligible for housing and be allocated houses in a fair and equitable manner. Employees recruited within their station are not eligible for housing unless transferred to another station rather than Suva".

By memorandum dated 21 December 2001 the Grievor requested a transfer to the Customs Office at Nadi Airport from Suva from the beginning of 2002. His reasons were personal and related to his two daughters employment as first time teachers in either Nadi, Lautoka or Sigatoka.

As a result and in order to accommodate the Grievor’s request, the Employer made certain staff changes in the Western Division. It would appear that at least one of these changes caused some concern amongst the staff on the Western Division. A memorandum dated 26 February 2002 from a Mr Allen Lockington to the Director General in relation to the transfer of Peter Pramesh from Nadi to Lautoka outlines some of these concerns.

By letter dated 18 February 2002 addressed to the Grievor and signed on behalf of the Manager Human Resources, the transfer was approved. The relevant part of the letter states:

"FICS (Fiji Islands Customs Service) Staff Board after perusing your letter at its meeting held on 6/2/2002 and taking into consideration decision given has agreed

that you will be transferred to Nadi Airport as Manger Investigation with effect from 01/03/2002on your existing terms and conditions of service. This is subject to your agreeing to the following:

(a) That you will provide your own accommodation in Nadi this year.

(b) That you will not claim any housing allowance from FIRCA this year.

In this transfer, you will be eligible for transfer allowance and reasonable travelling expenses. Transport will be provided to cart your personal effects from Suva to your destination in Nadi."

As requested in the letter the Grievor by his signature "accepted the terms of my transfer from Suva to Nadi Airport on the above condition".

By memorandum dated 23 May 2002 addressed to the Director-General of the Customs Service, the Grievor sought some housing assistance for the rest of the year. The memorandum omitting journal parts is as follows:

"I shall be very grateful if I could be provided with some housing assistance for the remainder of the year.

I am fully aware of the conditions under which I was transferred to Nadi Airport, however, following the marriage of my daughter in March and my recent trip to the United State of America. I have incurred a debt of about seven thousand dollars.

I would be grateful of the Authority could assist me reduce my debt during these difficult times".

In a letter dated 28 May 2002 addressed to the Employer’s Chief Executive, the Association pointed out to the Employer that the Grievor was not receiving any housing entitlement to which he was entitled under Clause 51.1 of the Collective Agreement. The Association requested that the Employer give its urgent attention to the matter.

The Employer replied to the Association by letter dated 7 June and to the Grievor by letter dated 13 June 2002. In both cases and for similar reasons the Employer declined the request to pay to the Grievor housing allowance for this year 2002.

The Association replied to the Employer by letter dated 21 June 2002. The second paragraph in particular is relevant to this Dispute:

"We had sought clarification from Mr Deo Khan on the circumstances surrounding his transfer to Nadi and was advised that the Staff Board had approved his transfer and advised him to look for a house of rental between $350 - $450 dollars. Immediately on the Authority to advice Mr Karan went to Nadi and made commitment with a Landlord to occupy the house for monthly rental of $450.00 per month. After making all the necessary arrangements, he was to told to sign an agreement that his transfer to Nadi is on a condition that hehad to pay the rentals of the house".

These was the material in the submissions which would indicate that the Employer took issue with the facts as outlined in the above paragraph, other then the language of the last sentence.

There does not appear to be any further correspondence between the parties on the issue.

However, in a memorandum dated 7 March 2003 to the Director-General, the Grievor states:

"I wish to advise you that I will be resigning as an employee of the Fiji Islands Revenue and Customs Authority with effect from 10 April 2003 because I am migrating to the United States.

As an employee I enjoyed every moment of my stay and it was a privilege serving our stakeholders.

Grateful of a certificate of service could be provided to me.

I very sincerely apologise if I hurt anybody during the course of my stay with the Authority".

The Association submits that the actions of the Employer amount to an extra contractual attempt to alter the terms and conditions of employment of its members as set out in the Collective Agreement. The Association submits that Clause 51.1 remains intact and applies to all its members including the Grievor. As a result the Grievor should receive the benefit of Clause 51.1 for the year 2002. The Association claims that the conditions composed upon the Grievor by the Employer amounted to duress on the sense that his transfer to Nadi was conditional upon his agreement to relinquish the benefits of Clause 51.1. As the transfer to Nadi had been sought by the Grievor for personal reasons, he had no choice but to accept the conditions.

The Employer submits that the Grievor is no longer eligible for or entitled to the housing allowance because he relinquished his right to the Clause 51.1 benefits as a result of a daily executed agreement. The Employer claims that the Grievor made a choice to relinquish his right to the Clause 51.1 benefits. The Employer also submits that Clause 51.1 does not apply to the Grievor because he had
voluntarily requested his transfer for personal reasons. The transfer was not to meet the requirements of service delivery. The Employer also claims that internal arrangements had to be made within the Western Division to accommodate the transfer request.

There is also an alternative submission by the Employer that as the Grievor is no transfer an employee the claim made by the Association under Clause 51.1 on behalf of the Grievor is contrary to Article C of the preamble and is ultra-vires.

At the outset, the Tribunal notes that it would appear to be common ground that but for the signed acceptance of the conditions which appeared in the correspondence dated 18 February 2002, the Grievor would otherwise have received the benefits under Clause 51.1. Furthermore it cannot be disputed that the Grievor should have received the benefits under Clause 51.1 for the period from 1 January 2003 to 10 April 2003.

Whether the Grievor should be paid the benefits under Clause 51.1 for the period 1 March to 31 December 2002 or any part thereof will depend what effect if any, the Tribunal gives to the arrangements entered into by the Employer and the Grievor on 18 February 2002.

The Tribunal considers that the present avoiding of the relevant clause is somewhat ambiguous. Clause 51.1 which refers to employees who are eligible
for housing is part of Clause 51.0 which is headed "Housing Entitlement". The meaning of the two avoids is quite different. In considering a similarly avoided provision in the General Orders of the Public Service, this Tribunal in Award No 10 of 1994 (FPSA V PSC) at page 97 stated:

"The destination between eligibility and entitlement to government housing is important. The former means that housing is subject to availability while the latter suggests a right".

Although the destination is not relevant in this dispute, it would appear that the Grievor, but for the conditions which he accepted, would have out only been eligible but also entitled to either provided accommodation or an allowance in lieu to pay for accommodation under Clause 51.1.

The Tribunal does not accept the Employer’s submission that a voluntary request for a transfer for personal reasons to another station other than Suva falls outside Clause 51.1. There is no reason from the words used in the clause to refer that the clause has the limited application which the Employer claims.

The Tribunal accepts that the Collective Agreement contains the terms and conditions of employment for members of the Association employed by the Employee. As a result it is not open to an Association member to undertake individual negotiations with the Employer in relation to these terms and conditions. However it is accepted that any individual agreement subsequently reached may give use to an estoppel.

The agreement between the Employer (a party to the Collective Agreement) is contained in the correspondence dated 18 February 2002. The conditions which the Employer has set out in the letter of that date are contrary to the provisions of Clause 51.1. The material suggests that the conditions are also contrary to the practice which existed up to that time. The Employer has not put toward an acceptable reason for making the transfer dependent upon for making acceptance of those conditions. The imposition of the conditions appears arbitrary and as a result unreasonable.

It is also apparent to the Tribunal that the Grievor had very little choice in the matter. His reasons for seeking a transfer to Nadi were personal but were fully explained to the Employer they related to family matters. The Employer could either accept or reject the request for a transfer. The Employer’s letter makes it been that the transfer to Nadi is conditional upon the Grievor relinquishing his benefits under Clause 51.1. If he did not accept the conditions, the transfer would not take place. He was forced to relinquished the benefits he was in all other respects eligible to receive.

As a result the Tribunal does not accept that the Grievor voluntarily agreed to relinquish those benefits. There was no agreement. As a result this is not a case (PTO).

However the Grievor did not complain about the arrangements for some time and only then when he was in some financial difficulty as a result of a daughter’s wedding and overseas visit. The Grievor did not ask for payment of some housing allowance because he was eligible to receive payments and had been found to accept the conditions in order to the transferred. Instead the Grievor referred only to his financial predicament when he wrote to the Employer.

The first time a claim is formally made for payment under Clause 51.1 is when the Association wrote to the Employer by letter dated 28 May 2002. If the Grievor had felt genuinely concerned about the conditions which had been composed on him by the Employer then it would have been appropriate for that concern to the raised with the Association well before May 2002. It is apparent that what prompted the Grievor to raise the matter with Union was not so much a concern about the conditions which he had accepted, allied under dines in February but within the financial situation he found himself in May 2002.

Having sat on his rights for about 3 months, it is the Tribunal’s opinion that the Grievor’s claim for payment of the benefits under Clause 51.1 slimed run from the date of the Association’s letter to the Employer, being 28 May 2002.

The Grievor was a member of the Association at the time the dispute was reported to the Permanent Secretary. It is the Tribunal’s opinion that it is not essential that the Grievor continue in employment with the Employer after that date for a trade dispute to continue in existence. The Grievor is not a party to this trade dispute.

AWARD

The Grievor is to be paid the benefits in which he was eligible under Clause 51.1 from 28 May to 31 December 2002.

DATED at Suva this 1^st day of December 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL