National Union of Hotel and Catering Employees v Turtle Island Lodge [2004] FJAT 57; Award 01 of 2004 (6 February 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO.1 OF 2004

AWARD OF THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF HOTEL AND CATERING EMPLOYEES

AND

TURTLE ISLAND LODGE

NUHCE : Mr Anthony
Turtle Island Lodge: Mr Apted

DECISION

This is a dispute between the National Union of Hotel and Catering Employees (the Union) and Turtle Island Lodge (the "Lodge") over the dismissal of Rosa Vakaloloma and Elenoa Marama (the "grievors") with effect from 3 March 2000.

By letter dated 4 April 2000 the Union reported the existence of a trade dispute to the Permanent Secretary for Labour and Industrial Relations pursuant to Section 3 of the Trade Disputes Act Cap 97 (the Act).

The Permanent Secretary referred the trade dispute to a Disputes Committee. The Lodge failed to recommend its nominee to the Disputes Committee within the prescribed time. As a result the Permanent Secretary referred the trade dispute to the Minister for Labour and Industrial Relations who then authorized the Permanent Secretary to refer the trade dispute to an Arbitration Tribunal for settlement pursuant to section 5A (5)(a) of the Act.

The dispute was referred to arbitration on 17 July 2001 with the following terms of reference:

".... for settlement over the termination of Rosa Vakaloloma and Elenoa Marama with effect from 03/03/2000 which the Union claims as unfair and unjustified and therefore seeks their re-instatement without loss of pay and benefits".

The Dispute was listed for a preliminary hearing on 10 December 2001. On that day the parties were directed to file written preliminary submissions by 28 February 2002 and the dispute was listed for hearing on 23 April 2002.

The Lodge filed written submissions through its Solicitors, Messrs Munro Leys, on 15 March 2002 and the Union on 9 April 2002. The hearing date was vacated on a number of occasions and eventually the dispute was listed for hearing on 3 October 2003.

On 3 October 2003, the Tribunal was informed that the two grievors had settled their disputes with the Lodge and had each executed a Deed of Release both of which were dated 2 October 2003. As the Union was not aware of this development the dispute was adjourned to 21 October 2003 for further mention.

On that day the parties were directed to file written submissions on the question of whether the purported settlement of the grievance by the grievors settled the trade dispute between the Union and the Lodge. The parties subsequently filed written submissions and were requested to appear before the Tribunal on Tuesday 3 February 2004 to clarify certain issues arising from the written submissions.

The written submissions filed by the Solicitors for the Lodge raise two preliminary issues. The first concerns the existence of a trade dispute and hence the jurisdiction of this Tribunal. The second concerns the purported settlement of the trade dispute by the grievors. This award deals only with these two preliminary issues.

The first preliminary issue relates to whether a trade dispute exists for the purpose of bestowing jurisdiction on the Tribunal to adjudicate the matter. The Lodge’s Solicitors claim that there is no trade dispute as defied in section 2 of the Act.

As previously stated, this dispute comes before the Tribunal under section 5A(5)(a) of the Act as a result of an authorization from the Minister to the Permanent Secretary to refer the dispute to the Tribunal. Under Section 23 of the Act, the Tribunal makes its award or furnishes its advice on any matter referred to it under the provisions of the Act.

Under section 4 of the Act the Permanent Secretary is given a discretion whether to accept the report of a trade dispute. Before exercising this discretion, the Permanent Secretary must satisfy himself that a trade dispute as defined in section 2 exists and that it has been reported in accordance with section 3 of the Act.

In the exercise of this discretion and making the requisite decisions, the Permanent Secretary is subject to the supervision of the Courts by way of judicial review. The appropriate course of action for a party who considers that the Permanent Secretary has erred in the exercise of a discretion or in making a decision is to seek judicial review of that decision by the High Court without delay. It is beyond the terms of reference and hence the jurisdiction of this Tribunal to examine the exercise of a discretion or the making of a decision which was a condition precedent to this Tribunal having jurisdiction.

In this dispute the Permanent Secretary exercised his discretion to accept the report of the Trade Dispute under Section 4 of the Act. The reference to this Tribunal was pursuant to section 5A(5) (a) of the Act on account of the failure of the Lodge to recommend to the Permanent Secretary a member for appointment to the Disputes Committee. It is the opinion of this Tribunal that any challenge to either of those decisions falls outside the jurisdiction of the Tribunal and is more appropriately to be undertaken by judicial review.

It should be noted that these comments are consistent with previous pronouncements by the Tribunal when similar preliminary objections have been raised. (See Award No.24 of 1998 at page 6 and Award No.24 of 2001 at page 7).

The second preliminary issue concerns the effect of the Deed of Release executed by each of the grievors. The Deeds were executed on 2 October 2003, being the day before the dispute was listed for hearing in the Tribunal.

In considering this issue, the starting point must necessarily involve the acceptance of the fact that there is a valid trade dispute. This Tribunal cannot come to any other conclusion as is apparent from the analysis of the first preliminary issue.

The first preamble of the Reference, which is dated 17 July 2001, states that a trade dispute exists between the Union and the Lodge. The last paragraph of the Reference states that it is the said trade dispute which is being referred to the Permanent Arbitrator for settlement.

The subject matter of the trade dispute is the termination of Rosa Vakaloloma and Elenoa Marama which the Union claims as unfair and unjustified and seeks their reinstatement without loss of pay and benefits.

As at the date of the report of the trade dispute to the Permanent Secretary, it must be assumed for the purpose of this arbitration that the Union was a party as defined in section 2 of the Act as amended by the Trade Disputes (Amendment) Act 1998. Section 2 states that:

"party with reference to a trade dispute, means: -

(a) a trade union of employees acting for all or any number of its members in the trade dispute;

(b) ...

(c) ...

(d) ... "

This means that the Permanent Secretary must have been satisfied that the Union was acting in the trade dispute for the two grievors who were employees and members of the Union. The Tribunal accepts that there may be an implicit requirement that the employees be Union members at the time the dispute was reported. To determine whether these facts existed is to go beyond the jurisdiction conferred on this Tribunal pursuant to the Reference. The nomination by the Permanent Secretary of the Union as a party to the dispute has not been challenged by Judicial Review, nor has the Reference to the Permanent Arbitrator.

It is interesting to note that the definition of party does not refer to any requirement that the employees be members of a recognized trade union. However, the definition of trade dispute does expressly refer to a registered
trade union which is either recognized or applying for recognition under the Trade Unions (Recognition) Act 1998.

It should also be noted that in the amended definition of party, an employee acting for himself in the trade dispute may also be a party to a trade dispute. This would allow for a non-union employee to be a party to a trade dispute.

In recital D of each Deed it is stated that the grievor complained (presumably about the termination) to the Union which reported a trade dispute under the Act in respect of the said termination. The Tribunal finds that this recital suggests an acceptance by each grievor that the Union was the party to the trade dispute.

It is the opinion of this Tribunal that as the Union has been nominated as the party to the trade dispute, it is the Union which might settle, withdraw or abandon the grievance which is the subject matter of the dispute. Any decision made by the Union would bind the individual grievors.

However, in this case it is the decision of the individual grievors to settle the grievance by executing Deeds of Release in favour of the employer which it is claimed binds the Union. When the Deeds of Release were executed, the arbitration process contemplated by the reference had already commenced. The Deeds were executed on 2 October 2003. The arbitration had been listed for hearing on the following day.

The Tribunal is of the opinion that it would seem unusual that the reference of the trade dispute to the Permanent Arbitrator for settlement could be brought to a premature conclusion by the actions of a person or persons who were not themselves parties to the dispute. This Tribunal considers that it would be strange if an individual grievor could, without the consent of the party (the Union) to the dispute, bring an end to the process which appears to be one which the Union has the right to control.

It is apparent from the material which is set out in the written submissions that this trade dispute raises issues which go beyond the concerns of the individual
grievors and which are of concern generally to the employees of the Lodge, especially union members. Consequently the Union has a vital interest in having the merits of the trade dispute adjudicated, even if the remedy might be only of a declaratory nature as the Union can no longer seek a remedy.

It is the opinion of the Tribunal that the Lodge has attempted to bring an end to this reference by having Deeds of Release drafted for execution by the two grievors. However an individual grievor cannot deny the right of a party to a trade dispute to carry forward a matter to adjudication. The Tribunal finds that the individual grievor cannot bring to conclusion arbitration proceedings to which he or she is not a party. That right rests with the parties to the trade dispute.

There has not at any stage been any suggestion that either grievor was acting on behalf of the Union when the Deeds were executed.

The Solicitors representing the Lodge have made reference to section 33 of the Constitution. It is claimed that section 33 implicitly guarantees that the individual employee retains the right to act at any time on his or her own behalf.

The following rights are expressly guaranteed in section 33:

(a) Workers have the right to form and join trade unions.

(b) Employers have the right to form and join employers’ organizations.

(c) Workers and employers have the right to organize and bargain collectively.

(d) Every person has the right to fair labour practices.

What is implied in section 33 is the right of trade unions to conduct their own affairs. Any attempt to regulate "the affairs of trade unions will be unconstitutional if it restricts unduly the exercise of the constitutionally recognized rights of trade unions and their members". (See Reeves Report page 190). The provisions of the Act do not offend the constitutional rights of trade unions and their members.

Section 33 of the Constitution does not imply that a grievor has the right to undermine the operation of the Act by proceeding to conduct direct negotiations with an employer after a trade dispute has been referred to the Permanent Arbitrator for settlement.

PRELIMINARY RULING

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.

DATED at Suva this 6^th day of February 2004

Mr. W D Calanchini

ARBITRATION TRIBUNAL