Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2005] FJAT 28; Award 45 of 2005 (2 August 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 45 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

VARIATION AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

ANZ BANKING GROUP LIMITED

FBFSEU: Mr P Rae
ANZ: Ms B Narayan

DECISION

This is an application for variation of Award No.40 of 2004 dated 7 October 2004.

The Union applied to the Minister for permission to make an application to vary the Award pursuant to section 28 of the Trade Disputes Act Cap.97.

The basis of the application is that the quantum of compensation awarded to the Grievor is inadequate and unduly penalises her for delay in the disposition of the Dispute for which neither the Grievor nor the Union was responsible.

The Minister gave his consent for the making of the application on 6 April 2005.

The application was listed for mention on 29 April 2005. On that day the parties were directed to file written submissions. The parties did not request a hearing.

The Union filed its submissions on 8 June 2005. The Employer filed answering submissions on 6 July and the Union filed reply submissions on 21 July 2005.

The Tribunal’s Award is stated at page 10 as follows:

"The Grievor’s summary dismissal was unfair in the sense that it was unreasonable and harsh. It was also unfair in the sense that the Grievor was not afforded procedural fairness.

The Grievor is to be re-instated with effect from 19 December 2002. She is to be paid six months arrears of salary and the balance is to be deemed as leave without pay".

In essence the Union submits that the Tribunal should vary its Award on the basis that there is an inconsistency between the findings and conclusions on the one hand and the amount awarded by the Tribunal on the other hand. What the Union is in effect saying is that the Tribunal has failed to take either adequate or any account of considerations which were relevant in the determination of the amount to be awarded to the Grievor by way of compensation.

The position taken by this Tribunal in relation to an application to vary an Award was clearly stated in Award No.54 of 2004 at page 3:

"Under the Trade Disputes Act, the Tribunal’s jurisdiction to make an award in any particular dispute begins with the reference from the Chief Executive Officer of the Ministry and concludes when an award has been published. Where the Tribunal has completed its task it is said to the "functus officio" and cannot afterwards alter or amend the award except to correct clerical mistakes, accidental slips or omissions, or errors of a merely technical nature".

Clearly the present application does not fall within in any of the exceptions stated in the passage above.

In the same Award the Tribunal continued at page 4:

"The Trade Disputes Act provides for two limited exceptions to the general principle of "functus officio". First, section 27 gives a limited jurisdiction to the Tribunal to determine any question which arises as to the interpretation of any award.

Secondly, section 28 provides for an application to vary an award in the following terms:

"No application to vary any award shall, except with the permission in writing of the Minister, be made within nine months of the publication of the Award".

There is no statutory definition of the word "vary" to assist the Tribunal in determining the parameters of this exception to the general principle that the Tribunal is "functus officio" once its Award has been published.

In general terms the dictionary meaning of the word would seem to suggest that to vary an award means that the award is to undergo some modification or alteration due to the introduction or intrusion of some change".

In the written material before the Tribunal there is no suggestion that circumstances or events have changed the introduction of which would justify the Tribunal varying the award. The Union has, instead, submitted that the Tribunal has not given any or sufficient consideration or weight to its findings and conclusions in determining the quantum of compensation. This amounts to a claim that the Tribunal has erred in law. As a result it is the Tribunal’s opinion that the Union’s application is more appropriately a matter for the High Court by way of an application for Judicial Review.

The Tribunal is being asked by the Union to review its earlier decision on the basis that it has made an error in fixing the quantum of compensation.

In Award No.54 of 2004 the Tribunal concluded at page 5 that:

"The Tribunal is of the opinion that the limited jurisdiction to vary an award under section 28 of the Act does not extend to a review or an appeal function. The Tribunal has no jurisdiction to undertake either a review or an appeal function.

AWARD

The Tribunal refuses the application to vary Award No.40 of 2004 for the reasons stated above.

DATED at Suva this 2 day of August 2005

Mr. W. D. Calanchini
PERMANENT ARBITRATOR