National Union of Factory and Commercial Workers v Voko Industries Ltd [2005] FJAT 14; Award 15 of 2005 (9 March 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 15 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS

AND

VOKO INDUSTRIES LIMITED

NUFCW: Mr J Raman
Voko: Mr Jung Jun

DECISION

This is a dispute between the National Union of Factory and Commercial Workers (the "Union") and Voko Industries Limited (the "Employer") concerning non-compliance with clause 4 of the Collective Agreement.

A dispute was reported by the Union on 28 April 2004. The report was accepted on 13 May 2004 by the Chief Executive Officer who referred the dispute to a Disputes Committee. As the Employer failed to recommend an appointee to the Committee, the Minister authorized the Chief Executive Officer 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 16 June 2004 with the following terms of reference:

"...... for settlement over the non-compliance by the company of the law and the collective agreement in particular clause 4 which deals with normal hours of work".

The Dispute was listed for mention on 14 July 2004. As there was no appearance by or on behalf of the Employer, the Dispute was listed for further mention on 11 August 2004. On that day the parties were directed to file preliminary submissions by 25 August and the Dispute was listed for hearing on 27 October 2004.

When the matter was called on for hearing there was again no appearance by or on behalf of the Employer. The Tribunal vacated the hearing date and relisted the Dispute for mention on 19 November 2004. The Union was directed to prepare, file and serve a summons addressed to the Employer’s Managing Director.

On 19 November 2004 both parties appeared before the Tribunal. The Employer was directed to file its preliminary submission by 20 December 2004 and the Dispute was listed for further mention on 26 January 2005.

Meanwhile, the Union had filed its preliminary submissions on 20 August 2004. The Employer filed its submissions on 17 December 2004.

On 26 January 2005 the Union was directed to write to the Employer requesting a copy of its preliminary submissions. The Dispute was relisted for mention on 25 February 2005.

On that day both parties were represented. The parties indicated that there was no requirement for a hearing as neither intended to call evidence. The parties informed the Tribunal that they would rely on their submissions and would await an Award on notice.

The background facts may be stated briefly. On Tuesday 30 March 2004 the Employer ceased operations for the day at 2.00pm. All the employees were sent home and their wages were reduced by three hours. Despite requests by the Union, the Employer refused to re-imburse the deducted wages.

The Union relies on section 16 of the Employment Act Cap 92 and clause 4 of the Collective Agreement in support of the claim on behalf of the aggrieved employees.

Section 16 of the Employment Act states:

"Every employer shall, unless the employee has broken his contract of service or the contract is frustrated or its performance prevented by act of God, provide his employee with work in accordance with the contract during the period for which the contract is binding on a number of days equal to the member of working days expressly or impliedly provided for in the contract, and if the employer fails to provide work as aforesaid he shall pay to the employee, in respect of every day on which he shall so fail, wages at the same rate as if the employee had performed a day’s work".

Essentially, section 16 imposes an obligation on the employer to provide work in accordance with the provisions of the contract of employment. In this dispute, the contract of employment includes the terms and conditions contained in the Collective Agreement (see section 34 (7) of the Trade Disputes Act Cap.97).

So far as is relevant, clause 4 of the Collective Agreement states:

"(a) Normal working days per week shall be 5 days starting Monday through Friday.

(b)

(i) Normal working hours per day shall be 8 hours making 40 hours per week.

(ii) Hours of work shall be based on two sets of starting and finishing time.

First set shall be 7.30am to 4.30pm

Second set shall be 8.00am to 5.00pm

(iii) Employees shall work these hours on a roster basis and Company shall give one week’s notice prior to any changes in the roster.

(c) ....................

(d) ................."

It is worth noting that in clause 8 of the Agreement, overtime is defined as meaning any work performed during any period in excess of work performed in normal working hours.

The reason for the Employer’s action is set out in its letter dated 30 March 2004 and addressed to the Union’s General Secretary. Omitting formal and irrelevant parts this letter stated:

"Please note that due to the late arrival of raw materials (tin plates) documents, the company has no other alternative but to stop work from 2.00pm today only ie. 3 hours.

Normal operations will resume from tomorrow.

There is not enough finished stock to continue labelling due to the incompletion of the incubation period".

It should be noted that the Union did not and has not challenged the reasons given by the Employer for sending its employees home three hours early on 30 March 2004.

The Tribunal has concluded that a clause such as clause 4 has the objective of regulating when overtime payments are to be activated and not to guarantee a certain number of hours of work for employees.

In this case the Employer did not have sufficient work for the work force on 30 March 2004. Under those circumstances, the Employer had the choice of placing all its employees on reduced hours for that day or laying off some employees. It should be noted that the Collective Agreement does not appear to deal with the question of lay-off.

The Tribunal considers that when an employer chooses to shorten the working day of its employees, it may be done by uniformly reducing the working hours of all employees. The Tribunal concludes that the reduction of hours is permissible under the agreement so long as the reduction is applied equally to all employees.

The requirement that the Employer give one week’s notice is in relation to a change in the roster which determines who works which set of hours.

The requirement to give one week’s notice is not applicable when the employer is seeking to reduce the number of hours worked on a particular day.

The Employer is not attempting to amend the Agreement or to bring about a change to standard working hours by unilateral action. As the Employer’s letter stated, normal operations would resume the next day.

Under the circumstances the Employer has breached neither section 16 of the Employment Act nor clause 4 of the Collective Agreement. The Employees are not entitled to be paid for hours not worked.

AWARD

The Employer has not breached the Employment Act or the Collective Agreement. The Employees are not entitled to be paid for hours not worked.

DATED at Suva this 9 day of March 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL