Fiji Electricity and Allied Workers Union v Fiji Electricity Authority [2005] FJAT 22; Award 39 of 2006 (13 July 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 39 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY AND ALLIED WORKERS UNION

AND

FIJI ELECTRICITY AUTHORITY

FEAWU: Mr P. Rae
FEA: Mr D. Sharma

DECISION

This is a dispute between the Fiji Electricity and Allied Workers Union (the Union) and the Fiji Electricity Authority (the Authority) concerning an allegation that the Authority breached clause 15 (d) of the Collective Agreement.

A trade dispute was reported on 9 November 2004 by the Union. The report was accepted on 22 February 2005 by the Chief Executive Officer who initially referred the Dispute to conciliation. Following a decision of the Fiji Court of Appeal as to the status of the Trade Disputes Act (Amendment) Decree 1992, the Dispute was subsequently referred to a Disputes Committee. As a consensus decision was not reached, 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 17 October 2005 with the following terms of reference:

"........for settlement over the breach of the Collective Agreement clause 15(d) entered between the parties on 16 August 1994. The affected are Mr Leone Sabeta, Senior Power Station Operator, Namaka and Mr Jese Mototabua, Fitter(B), both members whose wages were paid in error and not rectified and paid within the next working day as per the clause 15(d) of the Collective Agreement. The union seeks payment for both members for all time waiting for wages at appropriate overtime rates from 1 July 2004, the time when wages were supposed to have been rectified and paid."

The Dispute was listed for preliminary hearing on 25 November 2005. On that day the parties were directed to file preliminary submissions by 6 January 2006 and the Dispute was listed for mention on 27 January 2006. The Authority was granted an extension on 27 January and directed to file its preliminary submissions by 31 January 2006. The Dispute was relisted for mention on 24 February 2006.

The Union had filed its preliminary submissions on 18 January and the Authority eventually did so on 24 February 2006. The Dispute was then relisted for mention on 24 March 2006. On that day the Dispute was listed for hearing on 1 June 2006.

When the Dispute came on for hearing on 1 June 2006 it was apparent that there was a preliminary issue which required determination by the Tribunal before the hearing could continue. The parties requested that the Tribunal deliver an interim Award as to the meaning of clause 15(d) of the Collective Agreement. The Tribunal directed the parties to file any additional written submissions on the preliminary issue within seven days and the hearing of the Dispute was adjourned part heard to a date to be fixed.

The Union filed further written submissions on 9 June and the Authority did likewise on 14 June 2006.

Clause 15(d) of the Agreement states:

"Any error in wages shall be rectified and paid within the next working day and a member kept waiting for his wages shall be paid overtime at the appropriate rates."

The Dispute concerns an allegation in relation to a payment of overtime which was made on 21 October 2004 to the two Grievors in respect of overtime worked on Monday 21 June 2004. It is claimed that overtime should have been paid to the Grievors on the following pay day which was 1 July 2004. It is claimed by the Union that the Authority had until 2 July 2004 to rectify the error and that the two Grievors are entitled to payment under Clause 15 (d) for time in waiting.

At this stage the Tribunal is concerned with determining the meaning of clause 15(d) and does not propose to make any comment in relation to the factual basis of the Dispute. The terms of reference requires the Tribunal to determine whether the payment made on 21 October 2004 entitled the two Grievors to additional payment for time in waiting under clause 15(d). For the purpose of determining the meaning and scope of clause 15(d) and without having heard any evidence, the Tribunal will assume that the additional payment made to the two Grievor on 21 October 2004 was by way of overtime payment for the time worked on Monday 21 June 2004 for which they had already been properly paid normal pay in accordance with the clause 15 (a) of the Agreement.

Clause 15 (d) raises two questions. The first is whether the error in wages is a reference to both normal and overtime wages or just to normal wages. The second question is for what period of time or for how long is the member entitled to be paid overtime at the appropriate rates in respect of the error.

It is apparent to the Tribunal that the purpose of the clause is to provide to a union member compensation for an error in wages which is not rectified and paid by the next working day after the relevant pay day. Furthermore it is the Tribunal’s view that the compensation is payable only in respect of those wages which must be paid in that pay period either under the Collective Agreement or pursuant to the provisions of the Employment Act Cap 92.

The Collective Agreement itself provides some assistance on this matter. Clause 15 (a) states:

"The pay week shall normally end at midnight on Thursdays and the wages shall normally be paid weekly in arrears, during normal working hours on Thursdays."

The Tribunal considers that the reference to the "pay week" in clause 15(a) is a reference to the normal hours of work per week which are set out in clause 13 of the Agreement. As a result the reference in clause 15(a) to the words "the wages shall normally be paid" is a reference to the wages owed in respect of the normal hours worked during that pay period. This view is consistent with the final words of clause 15(d) which provide that compensation is payable at the appropriate overtime rates.

It is noted that overtime arrangements one dealt with separately in clause 14 of the Agreement.

Further assistance is derived from section 50 of the Employment Act in relation to what wages are required to be paid in the relevant wage period. Section 50 (2) states:

"(2) Subject to the provisions of sub-section (3), every employer shall, when paying an employee, provide such employee with a written statement containing the particulars set out in this sub-section in respect of the relevant wage period and every employer failing so to do shall be guilty of an offence:-

(a) ............

(b) ............

(c) the days or hours worked at normal rates of pay;

(d) the rate of wages;

(e) the type of wage period;

(f) the amount of overtime worked during any wage period and the rate of wages payable for such overtime;

(g)

(i) the total earnings of the employee.

(ii) any allowances or other sundry payments due to the employee.

(iii) any deductions made from the total earnings of the employee;

(iv) the total amount due to the employee after all deduction have been made in respect of each wage period."

provided that......"

It is apparent from (f) above that under section 50(2) in any relevant wage period, it is permissible to include overtime pay which has been earned in any wage period. In other words, overtime pay does not have to be paid at the end of the relevant pay period in which it was earned. It can be paid and specifically itemized in any subsequent pay period.

The Tribunal has concluded that there is nothing in clause 15(d) which would indicate that the parties to the Collective Agreement have agreed to impose a more strenuous obligation on the employer than that which is by implication imposed under the Employment Act.

The Tribunal has concluded that there is no obligation on the part of the employer to pay overtime at the end of the relevant pay period. Therefore the non-payment of overtime pay at the end of that relevant period does not constitute an error in wages. As a result there is no entitlement under those circumstances to the compensation for which the clause purports to make provision.

INTERIM AWARD

Clause 15 (d) does not apply to the non-payment of overtime at the end of the relevant pay period in which it was earned.

The Dispute is listed for mention on 28 July 2006.

DATED at Suva this ........ day of July 2006.

ARBITRATION TRIBUNAL