Viti National Union of Taukei Workers v Land Transport Authority [2005] FJAT 19; Award 37 of 2005 (5 July 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO.37 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

VITI NATIONAL UNION OF TAUKEI WORKERS

AND

LAND TRANSPORT AUTHORITY

VNUTW: Mr T Tabu
LTA: Ms L Naiveli/Mr V Vosarogo

DECISION

This is a dispute between the Viti National Union of Taukei Workers (the "Union") and the Land Transport Authority (the "Authority") concerning outstanding issues related to Contracted Posts.

A dispute was reported by the Union on 26 February 2004. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. The Disputes Committee considered that the Dispute raised complex issues which should be referred to Arbitration. As a result 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 11 November 2004 with the following terms of reference:

"..... for settlement over the failure of the Land Transport Authority (LTA) to negotiate outstanding issues relating to Contracted Posts it had failed to resolve and had aggravated the whole matter by its resurrection of Contracted Posts under the guise of Partnership Concept ratified with the Union. The Union therefore concludes that:

(a) LTA had breached the provisions of Article A of the Collective Agreement through its action to introduce the Partnership Concept.

(b) LTA acted contrary to Article B of the Collective Agreement by its action to introduce the Partnership Concept to recruit contracted officers and by so doing it has breached Article B which recognised the "Association/Union as the representative of and the agent for the purposes of collective bargaining in all matters pertaining to rates of pay, hours of work, discipline and all other terms and conditions of employment of employees of the Authority".

(c) LTA had further breached Article B of the Collective Agreement through its Partnership Concept, which had introduced different rates of pay, hours of work, discipline and terms and conditions of employment.

(d) LTA through its Partnership Concept had breached Article G of the Collective Agreement by giving more or better terms than those provided for in the Collective Agreement to non-members.

(e) LTA had negotiated in bad faith with our Union by not honouring 2001 Arbitration Tribunal Award to settle industrial action and by reneging on the conciliation agreement of 16/04/03 to resolve contracted posts issue now revived by Partnership Concept.

(f) LTA had breached clause 3.2.1 of the Collective Agreement by paying annual salary rates not in Schedule I of the Collective Agreement".

The Dispute was listed for a preliminary hearing on 19 November 2004. On that day the parties were directed to file preliminary submissions by 19 December 2004 and the Dispute was listed for mention on 26 January 2005..

The Union filed its submissions on 3 December 2004.

On 26 January 2005 the Authority was directed to file its preliminary submission within 14 days. The Dispute was relisted for mention on 25 February 2005.

The Authority filed its preliminary submission on 9 February 2005.

On 25 February 2005 the parties informed the Tribunal that there was no requirement for a hearing as neither side intended to call evidence. The parties were granted leave to file any further submissions within 14 days and thereafter the Award would follow on notice.

The Union filed further submissions on about 28 February 2005. By letter dated 10 March 2005 the Authority informed the Tribunal that its submissions already filed were sufficient to cover the points of argument in the Dispute.

The Dispute was again listed for mention on 15 March 2005. On this occasion the Tribunal requested the parties to provide further written submissions on the effect, if any, of section 33 of the Constitution on the scope of the Collective Agreement. The Union filed its further submissions on 12 April and the Authority did so on 27 May 2005.

In Award Numbers 44 and 45 of 2001 (dated 11 December 2001) the Tribunal stated at page 3 that:

"In regards to all other issues, the parties agreed that these matters would be incorporated into a written Collective Agreement which was to be recorded as a Consent Award in due course".

It should be noted that section 19 of the Land Transport Act 1998 provides:

"(1) The Authority may –

(a) appoint and employ persons in addition to the Chief Executive subject to terms and conditions necessary for the proper carrying out of the provisions of this Act; and

(b) fix the remuneration and allowances of persons employed by it.

(2) ...............

(3) The Authority may enter into an agreement with the Public Service Commission to provide for the secondment of public officers to the service of the Authority on such terms and conditions as may be specified in the Agreement.

(4) .......

(5) .......".

A written Collective Agreement dated 17 December 2001 was finalised by the parties and presumably this is the Agreement which is to be recorded as a Consent Award. The Collective Agreement contains the terms and conditions for those persons who are employed for the proper carrying out of the provisions of the Act and who fall within the scope of the agreement.

The scope of the Agreement is dealt with on page 1. This page is headed "Memorandum of Agreement and its scope". The first paragraph has a sub-heading "Parties to the Agreement" and so far as is relevant states:

"This Agreement is made and entered .... by and between the Land Transport Authority ..... and ...... the Viti National Union of Taukei Workers ..... (hereinafter referred to as the Unions) as Trade Unions registered under the Trade Union Act for and on behalf of its members whereby both parties hereby agree as follows"

Part 1 of the Agreement deals with General Conditions, some of which relate either directly or indirectly to the issue of contracted positions.

Article A deals with what is generally termed as "management rights" which are required to be exercised in accordance with the Collective Agreement.

Article B which is headed "Union Recognition" states:

"The Authority hereby recognises the Association/Union as the representative of, and the agent for, the purposes of collective bargaining in all matters pertaining to rates of pay, hours of work, discipline and all other terms and conditions of employment of employees of the Authority".

The significant aspect of Article B is that it provides that the Union represents employees of the Authority for the purposes of collective bargaining. The only employees to whom Article B does not apply are those persons holding the positions which are listed in Article E (Exempted Positions).

Therefore the Agreement purports to apply to employees, other than those expressly exempted.

This is confirmed by Article C, which states:

"The terms and conditions contained in this Agreement shall apply to employees"

As the agreement has been made by the Union for and on behalf of the members, the Tribunal is of the opinion that implied in the word "employees" in Articles B and C is the qualification that employees refers to employees who are union members.

Furthermore, Article G suggests the possibility of the Authority entering into arrangements with non-union members. Article G states:

"The Authority shall not give more or better terms than those provided for in this Agreement to non-union members covered by the scope of this Agreement"

Clause 3.2.1 provides that the salary rates of employees are set out in Schedule I of the Agreement.

The legal effect of Articles B & C is set out in section 34 (7) of the Trade Disputes Act which states:

"The provisions of any such agreement shall be an implied condition of contract between every employee and employer to whom the agreement applies".

This provision, however, begs the question "to whom does the agreement apply’"? The principal issue of this Dispute is whether the Collective Agreement can prevent non-union employees entering into individual contracts with the Authority.

The amended definition of "Collective Agreement" in the Trade Disputes Act states:

"collective agreement means any agreement:

(a) that is made by a trade union of employees recognized under the Trade Unions (Recognition) Act and an employer or trade union of employers duly registered under the Trade Unions Act; and

(b) prescribes (wholly or in part) the terms and conditions of employment of employees of one or more description, or a procedure agreement or both".

In section 2 of the Trade Unions (Recognition) Act 1998 "Collective Agreement" is defined as including an agreement between a recognized registered trade union and an employer which:

"(a) prescribes (wholly or in part) the terms and conditions of employment of employees of one or more descriptions".

The issue of the scope of the binding nature of the Collective Agreement is not expressly addressed in either the Trade Disputes Act or the Trade Unions (Recognition) Act.

In Air Pacific Limited – v – Fiji Aviation Workers Association and Permanent Arbitrator (Civil Appeal No.6 of 2003 delivered 17 September 2004) the Supreme Court of Fiji said at page 9:

"This Court, along with all braches of Government and those performing the functions of any public office (such as the Permanent Arbitrator) must also give effect to section 33 (3) of the Constitution which provides:

"Every person has the right to fair labour practices, including humane treatment and proper working conditions".

The concept "fair labour practices" is wide and extensive. It is not capable of precise definition. As noted by Ngcobo J in National Education Health and Allied Workers Union – v – University of Cape Town and others [2002] ZACC 27; 2003 (3) SA 1 (CC) at para 33:

"The concept of fair labour practice is incapable of precise definition. The problem is compounded by the tension between interests of the workers and the interests of the employers that is inherent in labour relations. Indeed, what is fair depends upon the circumstances of a particular case and essentially involves a value judgement. It is therefore neither necessary nor desirable to define this concept".

The Tribunal considers that the constitutional right to fair labour practices includes the right of an employee who is not a union member to negotiate an individual contract with the employer.

It is noted that clause 166 of the Employment Relations Bill expressly deals with the issue of which workers are bound by the provisions of a Collective Agreement. So far as this dispute is concerned, the important point is that the agreement is only to apply to a worker who is or who becomes a member of a union that is a party to the agreement.

Whilst clause 166 may have become necessary as a result of the proposed repeal of the Trade Unions Recognition legislation, the Tribunal considers that it is also consistent with the right to fair labour practices under section 33 (3) of the Constitution.

The Tribunal does not consider that the right of an employee to join a trade union nor the right of workers to organise and bargain collectively are inconsistent with the right of a worker, if he so chooses, not to join a trade union but instead to negotiate and enter into an individual contract with his employer. These are all fair labour practices and are all guaranteed to workers in section 33 of the Constitution. The specific rights in section 33 must however be viewed in context within the broader right also conferred by section 33 (3) to fair labour practices.

As a result, in so far as any provision in the Trade Unions (Recognition) Act or the Trade Disputes Act is in any way inconsistent with the rights of workers contained in section 33 of the Constitution, that provision must be qualified or modified so far as is necessary to bring it into conformity with section 33.

This means that the definition of "collective agreement" contained in each piece of legislation is to be construed in a manner which is consistent with the rights of workers set out in section 33 of the Constitution.

As a result a Collective Agreement which sets out the terms and conditions of employment of employees binds those employees who are union members and those employees who are not union members and who have not otherwise entered into an individual contract of employment with the employer. The Collective Agreement cannot deprive non-union employees of the opportunity to negotiate an individual contract with the employer.

The Tribunal notes that the General Manager Corporate Services (Mr K Chandra) signed a Memorandum of Agreement dated 26 May 2003 arising out of conciliation proceedings which took place on 16 April 2003. Clause 1 of that Agreement states:

"That employees who are currently employed under individual contacts of employment have been given the option till 16 April 2003 to either come under the Collective Agreement immediately or continue under their individual contacts up to the expiry dates. However, upon expiry of their current individual contracts of employment, they will automatically come under the Collective Agreement".

The Tribunal has taken the view that the parties to this Dispute cannot reach an agreement which purports to bring about an outcome which is not in accordance the provisions of the Trade Unions (Recognition) Act the interpretation of which must necessarily be consistent with the right to fair labour practices in section 33 (3) of the Constitution.

However the Authority’s dealings with its employees who are union members and those non-union members who choose to be covered by the Collective Agreement must be through the Union and must be subject to the provisions of the Collective Agreement between the Authority and the Union.

The Tribunal has concluded that the Authority has not breached Articles A, B, C or G of the Collective Agreement by raising the Partnership concept as a means of implementing contracted posts for the reasons stated above. Furthermore the Tribunal has also concluded that there has not been a breach of clause 3.2.1 of the Collective Agreement.

AWARD

The Authority is not in breach of Articles A, B, C or G nor clause 3.2.1 of the Collective Agreement.

DATED at Suva this 5 day of July 2005.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL