Building Construction Timber and Allied Workers Union v Valebasoga Tropikboards Ltd [2005] FJAT 37; Award 51 of 2005 (6 October 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 51 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

BUILDING CONSTRUCTION TIMBER AND ALLIED WORKER’S UNION

AND

VALEBASOGA TROPIKBOARDS LIMITED

BCTAWU: Mr F Anthony with Mr J Paul
Tropickboards: Mr J Apted

DECISION

This is a dispute between the Building Construction Timber and Allied Worker’s Union (the "Union") and Balebasoga Tropikboards Limited (the "Employer") concerning employee working hours and the relevant Wages Regulation Order.

A trade dispute was reported by the Union on 11 October 2003. The report was accepted on 18 November 2003 by the Permanent Secretary who referred the dispute to conciliation. As the dispute was snot resolved through conciliation, the Minister authorized the Permanent Secretary who referred the dispute to conciliation. As the dispute was not resolved through conciliation, the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6(1) of the Trade Disputes Act Cap.97.

The Dispute was referred to the Permanent Arbitrator on 1 March 2004 with the following terms of reference:

"... for settlement over the Company requiring workers to workers to work 53 and 54 hours per week at normal time and reducing the normal hours of work from 45 hours as low as 9 hours a week contrary to the Wages Regulation (Sawmilling and Logging Industry) Order 2002".

The Dispute was listed for preliminary hearing on 10 March 2004. On that day the parties were directed to file and serve preliminary submissions by 28 April and the Dispute was listed for further mention on 12 May 2004. On that day the parties were directed to file a statement of agreed facts by 19 July and the Dispute was listed for hearing on 26 July 2004.

The Union filed preliminary submissions on 29 March and 6 April 2004. The Employer filed preliminary submissions on 21 April 2004.

When the Dispute came on for hearing on 26 July 2004, the Union informed the Tribunal that it was not in a position to proceed with the hearing. It would appear that the Union had not given the Employer any prior notice of its difficulties and as a result the Tribunal directed that the Union pay $242.00 as costs thrown away within one month. The Tribunal also directed that the hearing dated be vacated and the Dispute was listed for mention on 11 August 2004.

The Dispute eventually came on for hearing in Suva on 10 November 2004. The Union called two witnesses and the Employer called one witness. At the conclusion of the evidence, the parties sought and were granted leave to file final written submissions.

The Union filed its final submissions on 19 April 2005. The Employer filed answering submission on 17 August 2005 and the Union filed a reply submission on 7 September 2005.

The first issue raised by the parties in their submissions concerns the scope of the terms of reference and the issues which are before the Tribunal. The Reference sets the limit of the Tribunal’s jurisdiction. In Fiji Islands revenue and Customs Authority – v- The Permanent Arbitrator and Fiji Public Service Association (J R No.11 of 2001 delivered on 10 September 2001) Justice Shameem at page 8 observed:

"The jurisdiction of the Permanent Arbitrator is therefore limited to the trade dispute referred to him for decision. His jurisdiction is limited to his terms of reference".

It is the Tribunal’s opinion that there are two issues which require determination under the terms of reference. The first is whether the Employer by requiring workers to work 53 and 54 hours per week at normal time was acting contrary to the Wages Regulation (Sawmilling and Logging Industry) Order 2002. The second issue is whether the Company by reducing the normal hours of work from 45 hours as low as 9 hours a week was acting contrary to the Wages Regulations (Sawmilling and Logging Industry Order 2002 (the 2002 Wages Order).

The Tribunal considers that it is appropriate to also consider the effect of section 16 of the Employment Act Cap 92 on the issues raised by the Reference.

The Tribunal notes that there was not in existence at the relevant time a collective agreement between the parties. Under those circumstances the Tribunal is required to determine the express and or implied terms and conditions of employment from an examination of the relevant legislation, in particular the Employment Act, the Wages Councils Act Cap 98 and the subsidiary legislation made under that Act.

The Tribunal has considered the evidence given by the witnesses during the hearing and is satisfied that there is sufficient material to conclude that the factual basis in respect of each of the issues has been established. The Tribunal is satisfied that on occasions employees were required to work in excess of 45 hours per week. The Tribunal is also satisfied that on occasions employees were offered less than 45 hours of work per week.

It is not disputed that the relevant provision is clause 6 of the 2002 Wages Order Clause 6 states:

"The normal hours of work per week shall be as and shall be worked on any six days with not more than nine hours per day".

Also of relevance is clause 11 (A) which provides that:

"The rate of remuneration payable for overtime work to a worker shall be:

(a) one and half times the workers normal hourly rate of remuneration in respect of the first three hours worked in excess of normal working hours and twice the worker’s normal hourly rate of remuneration for all times worked thereafter.

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

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

The Union has submitted that clause 6 in the 2002 Wages Order contained an error in that the word "as" should have read 45. it submits that the text makes no sense. It also points out that the relevant clause in wages orders made both before and after the 2002 Wages Order contained the figure 45. The Union also points that the draft for the 2002 Wages Order also contained the figures 45 in clause 6. The material which has been attached to the Union’s submissions supports these claims.

Furthermore, the Union also relies on a letter dated 13 April 2004 from the Ministry of Labour to the National President of the Fiji Trades Union Congress. Omitting formal and irrelevant parts, this letter stated:

"Sawmilling and Logging Wages Regulations Order

Reference is made to your letter vide which you had highlighted the error in clause 6 of the above mentioned Order.

For your information, the error had been rectified in the current order which came into effect on 16 January 2004 (the relevant clause is attached herewith for ease of reference").

The Union submits that the intention of the clause has been at all times to specify that normal hours of work a week shall be 45 worked on any six days in a week. The worker cannot work more than 6 days a week and cannot work more than nine hours on any day. However in deciding the combination of hours and days the normal working hours should not total more than 45 in any week.

The Employer has submitted that the plain words used in clause 6 of the 2002 Wages Order means that it is a simple mathematical exercise of 6 days multiplied by 9 hours resulting in 54 hours per week as normal hours. As a result, the Employer claims that there was no breach of the 2002 Wages Order. It says there was no obligation to pay overtime for hours worked in excess of 45 hours. It claims that it was relying in good faith on the plain words used in clause 6.

The Tribunal accepts that pursuant to section 21 of the Interpretation Act, judicial notice is to be taken of subsidiary legislation published in the Gazette. The Tribunal therefore takes judicial notice of the Wages Regulation (Sawmilling and Logging Industry) Order 1997 (Legal Notice No.157 pf 1997) and the Wages Regulation (Sawmilling and Logging Industry) order 2004 (Legal Notice No.10 of 2004) and has concluded that clause 6 in the 2002 Wages order does contain the error relied upon by the Union. Clause 6 in each of those Orders states that normal working hours are 45. There is no material before the Tribunal to explain whey the provision would have been changed on just one occasion. The conclusion is that it was an error and that the figures 45 should have appeared in place of the word "as".

The Tribunal has noted that the error in the 2002 Wages order was not formally corrected pursuant to Section 65 of the Interpretation Act. However the error was sufficiently acknowledged by the Labour Ministry in its letter dated 13th April 2004 (supra).

The Tribunal has noted the observations contained in the Employer’s submission concerning the difficulties and problems which confront the industry generally and the employer in particular. However, the Tribunal has concluded that the 2002 Wages Order necessitates the payment of overtime rates for hours worked beyond the normal 45 per week.

The Employer is required to pay overtime to those employees who worked in excess of 45 hours per week in accordance with the provisions of clauses 6 and 11 of the 2002 Wages Order.

In relation to the second issue the Union submits that the 2002 Wages Order placed an obligation on the Employer to provide a minimum of 45 hours of work per week.

The Employer submits that that the plain words of the clause do not suggest a requirement to provide minimum hours of work each week. The Employer claims that the purpose of clause 6 is to regulate wage rates with the result that normal rates are payable if and to the extent that a worker works normal hours and overtime rates are payable if and to the extent that a worker works beyond normal hours.

This Tribunal has consistently taken the view that a reduction in the normal or usual hours of w3ork of all or some of the employees is not a violation of a provision in and agreement or a Wages Order which specifies the normal hour or work per week. The purpose of such a provision is to regulate the payment of overtime rates and not to guarantee a certain number of hours of work for employees.

It is accepted that it is possible for a collective agreement to provide for some form of payment or compensation for workers whose normal hours of work per week have been reduced. There is no agreement to that effect in this Dispute. The Tribunal notes that the Union referred to a collective agreement which contained a provision for compensation to be paid for reduced working hours. The Tribunal has concluded that in the absence of any such agreement, the 2002 Wages order does not impose any obligation on the Employer to provide 45 hours of work each week nor to pay compensation for any reduction in normal working hours.

Finally, section 16 of the Employment Act requires an Employer to provide an employee with work in accordance with the contract on a number of days equal to the number of working days specified in the contract.

It is the Tribunal’s view that the obligation under section 16 is an obligation to honour the contract in relation to the provision of work.

Generally the contract terms and conditions consist of express terms and implied terms. The express terms are found in the legislation or in an agreement (collective or individual) and terms which are implied include those implied by trade or industry custom. The Tribunal has already concluded that clause 6 of the 2002 Wages Order (an express term of the contract) does not impose an obligation to provide a minimum of 45 hours per week. The Tribunal accepts that as a result of local industry custom, hours are reduced when work is not available.

Under these circumstances the Employer is not in breach of the contract and there is as a result no violation of section 16 of the Employment Act.

The Tribunal does not propose to deal directly with the question of the compulsory recognition order or the failure to negotiate with the Union as those matters do not fall within the Tribunal’s Reference.

AWARD

The Employer is obliged to pay overtime rates to those employees who worked in excess of the normal working week of 45 hours.

The Employer is not obliged to provide employees with work for a minimum of 45 hours per week.

DATED at Suva this 6 day of October 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL