Fiji Public Employees Union v Public Service Commission [2004] FJAT 60; Award 39 of 2004 (7 October 2004)

THE REPUBLIC OF THE FIJI ISLANDS

No. 39 of 2004

AWARD OF
THE ARBITRATION TRIBUNAL

INTERPRETATION OF AN AWARD

IN THE DISPUTE BETWEEN

FIJI PUBLIC EMPLOYEES UNION

AND

PUBLIC SERVICE COMMISSION

INTERPRETATION

In Awards 54-57 of 1999 dated 30 December 1999, the Arbitration Tribunal settled disputes between various Public Sector Unions and the Public Service Commission in respect of the Unions’ 1995/1996 logs of claims.

By letter dated 28 June 2004 the Public Employees Union (the Union) requested clarification from the Tribunal in respect of those parts of the Awards, which deal with "Country Allowance".

The Tribunal has taken the view that this application for clarification is in effect an application for an interpretation of an award pursuant to section 27(1) of the Trade Disputes Act Cap 97 which, so far as is relevant, provides:

"if any question arises as to the interpretation of any award of a Tribunal, ..............any party to the award may apply to the Tribunal for the determination of such question, and the Tribunal shall decide the matter either after hearing the parties, or without hearing the parties if it thinks fit........."

The application was listed for mention on 14 July 2004. As there was no appearance by the Union on that day, the application was relisted for mention on 11 August 2004. On that day the Union was directed to file written submissions within 14 days and the Commission was directed to file answering submissions within 14 days thereafter. The dispute was listed for further mention on 15 September 2004. On that day the parties informed the Tribunal that they did not require a hearing and would instead rely on the submissions which had been filed.

It is appropriate to quote in full that part of the Award which deals with "Country Allowance" at page 22:

"This is payable under sub-clause 10(a) of the JIC Agreement during a period when an unestablished employee is required to "camp" on outstation duties for projects of limited duration.

It is intended to cover their living costs, and, it was argued, was roughly equivalent to the established category’s subsistence allowance. However, the Tribunal notes that the unestablished employees work in groups and it is customary to pool the allowances and purchase food, which is cooked in common.

Currently the rates are $5.00 per night where quarters are provided. Where there are not provided, it is $10 for the first seven nights and $7 per night thereafter.

At the hearing, the Union sought a flat daily allowance of $30.00.

In the Tribunal’s view, however, the appropriate established equivalent is not the subsistence allowance, but the ration allowance, since that foresees the pooling of resources, as occurs with the unestablished.

The Tribunal has awarded an increase to $7.50 for that allowance, and therefore awards the unestablished $7.50 per night if accommodation is provided. The Tribunal assesses the cost of accommodation to be $10.00 and awards an allowance of $17.50 per night (if no accommodation is provided) for the first 7 nights and $10.50 per night thereafter."

In the third paragraph of its letter, the Union identifies the point in issue by stating:

"However, we wish to seek clarification whether the allowance is including the meal during the day. It is our view that you only mention about night meal allowance and awarded $7.50 meal for night only and $10.00 for night accommodation only. Thus there is no mention of the meal during the day, prior to night, neither any reference to that effect under the heading – Meal Allowance".

The Union’s position on the issue is that the "Country Allowance" is an allowance which is designed to provide Government wage employees recompense for being required to spend a night or nights on outstation duties. The Union contends that as a result it is designed to compensate for an evening meal and overnight accommodation. The Union’s submission is that the other two meals are not included and if there is an entitlement in relation to those then it is by way of a separate meal allowance claim. In support of its claim the Union relies on the provisions of clause 70 of the JIC Agreement and amendments to GO 503 which were introduced by PSC Circular No 9 of 2000.

The Public Service Commission (the Employer) opposed the Union’s interpretation of the Awards. In its submission, the Employer claimed that the "Country Allowance" is paid to Government Wage Employees as a daily living cost allowance when away on outstation duties. On those occasions, it is said, the employees work in groups and customarily pool their allowances together to purchase food, which is cooked on a communal basis. The Employer argued that the "Country Allowance" cannot be compared to the subsistence allowance because of the different conditions which are encountered by Established Officers when they usually travel alone on outstation duties.

Having carefully read the relevant Awards and the submissions filed by the parties, the Tribunal concludes that the then Permanent Arbitrator did consider that the "Country Allowance" was equivalent to the "Ration Allowance" which is payable to sea-going unestablished employees (now wage employees). The basis of the comparison would appear to be that in the context of sea-going duties, resources are obviously pooled for communal purposes. There is usually only one galley on a vessel. The Tribunal accepted that when on outstation duties, wage employees pool their allowances in a similar way.

Consequently, as a matter of interpretation of Awards Nos 54-57 of 1999, the Tribunal’s view is that the Country Allowance is a daily living cost allowance for wage employees when performing outstation duties and includes all meals.

The Union has submitted that the Tribunal should amend the Awards to bring the "Country Allowance" in to line with the allowances payable to established officers. The Tribunal has no jurisdiction to amend an earlier award as the Tribunal is said to be "functus officio" once the Awards have been published.

In the event that the Union considers the amount of $7.50 to be inadequate to cover the daily non-accommodation costs of wage employees when performing outstation duties, it will have to seek an amendment to the present allowance amount either through agreement or through the dispute resolution machinery of the Trade Disputes Act Cap 97.

Alternatively the Union could seek to negotiate an amendment to clause 70 of the JIC Agreement to limit its applicability to the cost of the evening meal and overnight accommodation for wage employees on outstation duties.

DATED at Suva this 7^th day of October 2004

Mr W D Calanchini
ARBITRATION TRIBUNAL