Fiji Public Service Association v Airports Fiji Ltd [2005] FJAT 12; Award 13 of 2005 (28 February 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 13 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

AIRPORTS FIJI LIMITED

FPSA: Mr. N.G. Singh
AFL: Mr. K. Qoro

DECISION

This is a dispute between the Fiji Public Service Association (the "Association") and Airports Fiji Limited (the "Employer") concerning the implementation of an agreement on remuneration for weekly hours.

A trade dispute was reported by the Association on 21 August 2003. The report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee. As neither party submitted nominations for the Committee, 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.

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

"... for settlement of the dispute over the alleged failure of the employer to implement an agreement that was voluntary executed between the parties on 16/01/03 on the subject of "observation of and remuneration for weekly hours" whereby the employer had agreed to grant the Association’s members increases in their salary rates across the board and the resultant arrears as compensation for performing forty (40) hours of work per week with effect from 17/09/01."

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 mention on 14 July 2004. The Employer had not filed its submissions by 14 July and was directed to do so by 28 July 2004. The Dispute was listed for further mention on 11 August 2004.

On 11 August 2004, the parties requested a further mention date for 18 August 2004. On that day the parties informed the Tribunal that the reference had been narrowed to an issue concerning the entitlement to a 4% increase in wages for the period 17 September 2001 to 30 October 2003. The parties sought and were granted leave to file further written submissions. The Dispute was listed for hearing on 20 October 2004.

The hearing took place on 20 October 2004 in Nadi. The Association called one witness to give evidence and the Employer called two witnesses. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions. The Association filed its final submissions on 18 November 2004 and the Employer filed answering submissions on 29 January 2005. The Association filed its reply submissions on 3 February 2005.

As previously noted the Dispute is now essentially concerned with the entitlement of the Union’s members to be paid a 4 % increase for the period 17 September 2001 to 30 October 2003.

The background to the claim may be stated briefly. By way of Staff Circular No. 29/2001 dated 12 September 2001, the Employer’s then Chief Executive directed that with effect from 17 September 2001 all employees were to work a standard working week of 40 hours.

It would appear that at the time the Staff Circular was issued, employees were either on individual contracts or came under the provisions of the 1998 Collective Agreement between the Civil Aviation Authority of Fiji and the Union. The Agreement is dated 7 August 1998. Those employees whose terms and conditions were determined by the Collective Agreement were all members of the Union. They were the same 283 employees who were re employed by the Employer as a result of a direction given by the Minister pursuant to section 58 of the Public Enterprise Act 1996. This direction was published as Legal Notice No 75 dated 9 June 1999. The re – employment was directed to be back - dated to 26 May 1999.

It should be noted at this stage that as a result of the Fiji Court of Appeal decision in Fiji Public Service Association - v - Arbitration Tribunal and Airports Fiji Limited (Civil Appeal No 10 of 2003 delivered on 19 March 2004) this Tribunal has no hesitation in concluding that the Collective Agreement dated 7 August 1998 between Civil Aviation Authority of Fiji and Fiji Public Service Association regulated the terms and conditions of employment for those 283 union members as at 17 September 2001.

Pursuant to the Collective Agreement the Union’s members worked 37 hours per week. Those employers on individual contracts worked 40 hours per week and each group was remunerated in accordance with their contract provisions. As a result of the direction in the staff circular, the Union members were required to work an additional three hours per week without any alteration to their remuneration.

As a result of three agreements made by the parties (dated 16 January 2003, 31 October 2003 and 9 December 2003) the present position may be summarized briefly.

First, it was agreed that the effective date of the 40-hour week for the Union’s members was shifted from 17 September 2001 to 30 October 2003. This left open the questions as to how the extra 3 hours worked each week between 17 September 2001 and 30 October 2003 were to be described and remunerated.

Secondly, the Union’s members were paid an 8 % increase in salary with effect from 30 October 2003 payable on and from the pay period ending 13 November 2003 as remuneration for a standard 40 hour week.

Thirdly, the Union’s members were to be paid an 8% increase in salary for the period 17 September 2001 to 29 October 2003 to be paid on the first pay for 2004.

Finally, the outstanding matter of the remaining 4% (from the claim for 12% increase) for the period 17 September 2001 to 29 October 2003 is the subject of voluntary arbitration currently before the Tribunal.

The Union claims that the extra three hours worked over and above the standard 37 hours between September 2001 and October 2003 is to be regarded as overtime. On the basis that overtime was payable at 1½ times normal pay, the Union calculated that this represents an entitlement to a 12% increase in wages, of which 8% has been conceded and paid by the Employer, leaving a balance of 4%. The calculations are set out in paragraph 2.16 of the Union’s submissions dated 16 November 2004.

The Employer has submitted that the three hours in question should be regarded as normal hours because when directed to re-employ the 283 Union members, the only vacancies were for contract positions which were all classified as 40 hours per week positions. The company calculates the extra 3 hours worked as amounting to an entitlement to an 8% increase in wages on the basis that it is an increase in normal hours worked.

The Tribunal has concluded that the extra 3 hours worked each week between 17 September 2001 and 29 October 2003 should be considered as overtime. This conclusion is based on clauses 1 and 2 in the Agreement dated 31 October 2003. The effect of these clauses is that the start date of the 40 hours week for the Union’s members was shifted from 17 September 2001 to 30 October 2003.

It is noted that the Public Enterprises Ministry in a letter dated 7 June 1999 confirmed that CAAF employees absorbed by the Employer were to be engaged on the terms and conditions in the Collective Agreement. The Court of Appeal decision to which reference has been made previously in this decision determined that the Collective Agreement applied to the 283 Union members re-employed by the Employer. Under the Agreement, the normal working week was 37 hours. Any work performed over 37 hours was to be classified as overtime and paid at the rate of 1½ times normal rates.

Under the circumstances the Tribunal has concluded that the three additional hours worked by the Union’s members each week between 17 September 2001 and 29 October 2003 is to be regarded as overtime and remunerated at the rate of 1½ times the normal rate. Consequently the Union’s members are entitled to the additional 4 % pay increase which is claimed in this Dispute.

AWARD

The Union’s members are entitled to the additional 4 % increase which is claimed in respect of the three hours overtime worked each week between 17 September 2001 and 29 October 2003.

DATED at Suva this 28 day of February 2005.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL