Fiji Electricity Workers Association v Fiji Electricity Authority [2004] FJAT 7; Award 41 of 2004 (12 October 2004)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 41 OF 2004

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY WORKERS ASSOCIATION

AND

FIJI ELECTRICITY AUTHORITY

FEWA: Mr D Urai
FEA: Mr P Vunituraga

DECISION

This is a dispsute between the Fiji Electricity Workers Association (the Association) and the Fiji Electricity Authority (the Authority) over FNPF benefits payable above legal requirements in exchange for the sick leave bonus.

On 30 June 2003 the Association reported a trade dispute. The Report was accepted by the Permanent Secretary who referred the dispue to conciliation. The dispute was partially settled at conciliation and the Minister authorized the Permament Secretary to refer the outstanding issue 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 6 April 2004 with the following terms of reference:

"To adjudicate and make an appropriate Award on the following:

Failure by the Authority to agree and contribute, apart from that legally required by law, and an amount equivalent to the following in respect of the members of the Association as contributions to Fiji National Provident Fund:

5 + years continuous service - 1%

7 + years continuous service - 2%

10+ years continuous service - 3%

12+ years continuous service - 4%

25+ years continuous service - 5%

(ii) in exchange of item one (1) above the Association agrees to forgo the sick leave bonus."

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. On that day, as there was no appearance by or on behalf of the Association, the Dispute was listed for further mention on 14 July 2004. The Dispute was subsequently listed for final hearing on 23 September 2004.

At the hearing of the Dispute the Association called Mr W Kaufuti to give evidence and the Authority called Mr A Simpson. At the conclusion of the evidence the parties indicated that they did not wish to make final submissions and would rely on their initial written submissions.

The hearing of the Dispute proceeded on the basis that the terms of reference raised two issues. The first issue for determination was whether the parties had agreed that the Authority would make certain specified FNPF contributions over and above those required by law in exchange for the Association forgoing its members’ entitlement to the sick leave bonus.

The second issue was whether, in the absence of such an agreement, an Award should be made whereby the Authority would make certain specified FNPF contributions over and above those required by law in exchange for the Association forgoing its members’ entitlement to the sick leave bonus.

It would appear that negotiations between the parties commenced in 2001 on a range of issues including a redundancy package, retirement, retirement benefits, long service leave, FNPF benefits and medical benefits.

An agreement in writing was reached by the parties in relation to voluntary redundancy. This agreement dated 29 May 2002 was registered under section 34 of the Trade Disputes Act on 31 May 2002.

As a result of negotiations which took place between the parties in about January 2002, the Authority prepared a draft agreement for further consideration by the parties. This draft document dealt with retirement, retirement benefits, long service leave, FNPF Benefits and medical benefits. It was acknowledged by the Association’s witness that the draft document would need to be discussed with the Authority’s Chief Executive Officer.

It would appear that the Authority was prepared to settle some of the claims covered in the draft. As a result the parties signed a written agreement dated 19 June 2002 dealing with retirement, retirement benefits and long service leave. This agreement was registered on 8 July 2002.

The remaining issues relating to FNPF benefits, medical benefits and forgoing the sick leave bonus were the subject of the reported Trade Dispute.

The claim in respect of medical benefits was resolved by conciliation and the new arrangement came into effect on 1 January 2004.

From the above the Tribunal has no hesitation in concluding that there was no agreement reached by the parties in respect of the payment of specified FNPF contributions over and above what is required by law in exchange for the Association forgoing its members’ entitlement to the sick leave bonus under clause 10(e) of the Collective Agreement.

On the question of whether the Tribunal should make the award sought by the Union, Mr Kaufuti pointed out in his evidence that there would be gains for both parties. The entitlement to the sick leave bonus arises after just 12 months of employment whereas the entitlement to the additional FNPF contributions does not arise until after five years service.

Mr Simpson stated in his evidence that the claim, if granted, would have resulted in a saving of about $100,000 to the Authority without taking into account the nett result of redundancies. If the effect of redundancies was taken into account the saving to the Authority would be between $30,000 and $40,000.

Under the circumstances, the Tribunal considers that the claim by the Association should be granted. The Tribunal accepts that there are benefits to both parties in doing so.

AWARD

There was no agreement reached between the parties in respect of the payment by the Authority of FNPF contributions over and above those required by law in exchange for the Association forgoing its members’ entitlement to the sick leave bonus.

The Tribunal grants the Association’s claim as it is set out in the terms of reference dated 6 April 2004.

The Award is to take effect on 1 January 2005.

DATED at Suva this 12^th day of October 2004.

Mr W D Calanchini

ARBITRATION TRIBUNAL