Fiji Public Service Association v Airports Fiji Ltd [2005] FJAT 40; Award 65 of 2005 (22 November 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 65 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

AIRPORTS FIJI LIMITED

FPSA: Mr R Singh
AFL: Mr K Qoro

DECISION

This is a dispute between the Fiji Public Service Association (the "Association") and Airports Fiji Limited (the "Employer") concerning the Employer’s refusal to grant overseas passage to Mr N G Singh (the "Grievor").

A trade dispute was reported by the Union on 13 June 2002. The Report was accepted on 29 July 2002 by the Permanent Secretary who referred the Dispute to a Disputes Committee. As the Committee could not be convened, the Minister authorized the Permanent Secretary 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 29 August 2002 with the following terms of reference:

"..... for settlement over the refusal by Airports Fiji Limited to grant overseas passage to Mr N G Singh. Therefore, the Association requests that Mr Singh be paid his entitlement".

The Dispute was listed for a preliminary hearing on 3 October 2002. On that day the parties were directed to file preliminary submissions by 14 January 2003 and the Dispute was listed for hearing on 31 January 2003.

The Association filed its preliminary submissions on 8 January and the Employer did so on 23 January 2003.

On 31 January 2003 the parties appeared before the Tribunal and requested that the hearing date be vacated to allow negotiations to continue. The Tribunal directed that the hearing date be vacated and the Dispute was taken out of the list pending further advice from the parties.

It would appear that the Dispute could not be resolved and, as a result of a written request dated 1 March 2005 from the Association, the Dispute was listed for mention on 30 March 2005.

The Dispute was listed for hearing on 12 May 2005. On that day the parties informed the Tribunal that an agreement to settle the Dispute had been reached subject to the approval of the Employer’s Board. The Tribunal directed that signed terms of settlement be filed within 21 days and the Dispute was adjourned for further mention on a date to be fixed.

As a result of non-compliance with the Tribunal’s directions, the Dispute was listed for further mention on 29 July 2005. On that day the Tribunal was informed that the Board did not give approval for the settlement of the Dispute. The parties requested an early date for the hearing which was set down for 28 September 2005.

The hearing could not proceed on 28 September 2005 as a result of the Association not being in a position to proceed when the Dispute was called. The hearing of the Dispute was adjourned to 11 October 2005.

The hearing was conducted in Suva on 11 October 2005. The parties each called one witness. At the conclusion of the evidence the parties sought and were granted leave to file written final submissions.

The Association filed its final submissions on 21 October 2005. The Employer filed answering submissions on 3 November and the Association filed a reply submission on 10 November 2005.

The reference requires the Tribunal to determine two issues. First, what were the terms and conditions of employment which applied to the Grievor at the time he claims he was entitled to overseas passage. Secondly, in accordance with those terms and conditions, was the Grievor entitled to overseas passage.

The Grievor joined the public service in 1962. The terms and conditions of employment were set out in the General Orders. The General Orders included leave conditions which had been introduced in 1958. In 1966 the Grievor became eligible for overseas passage which was granted. The Grievor received paid return passage to New Zealand. He was eligible for overseas passage every third year thereafter. As a result he was granted paid return passage to Australia in 1969.

In 1972 new leave conditions were introduced in the Public Service, replacing the 1958 conditions. Under the new conditions, those public servants who were eligible for overseas passage prior to 1972 were given the option of choosing to remain on the overseas passage benefit or could choose to receive a leave allowance. The Girievor opted to remain on the overseas passage scheme and was granted paid return overseas passage in 1972, 1975 and 1978.

In 1979, the Grievor was transferred to the Civil Aviation Authority of Fiji (CAAF), a newly created statutory authority, from the Department of Civil Aviation. Under the legislation, the parties (ie. The Authority and the Union) were to negotiate terms and conditions in the form of a Collective Agreement. The first agreement was signed in 1981 and there followed two replacement agreements, one in 1991 and the second in 1998.

The unchallenged evidence before the Tribunal was that the conditions relating to overseas passage entitlements remained the same for those eligible public servants who were transferred to CAAF.

The relevant terms and conditions for the purposes of this Dispute are set out in the 1998 Collective Agreement between CAAF and the Association. Following this Agreement, the Grievor was next entitled to overseas passage in 1999. The Grievor did not make an application for overseas passage in 1999.

In April or May 1999 and prior to 26 May 1999 the Grievor was laid off by CAAF as a result of the re-organization process then being undertaken by the Ministry of Public Enterprise. By Legal Notice No.75 of 1999 dated 9 June 1999, the Employer was directed to re-employ with effect from 26 May 1999 283 workers (including the Grievor) who had been laid off by CAAF.

In Fiji Public Service Association –v- Arbitration Tribunal and Airports Fiji Limited (Civil Appeal No. 10 of 2003 delivered on 19 March 2004) the Fiji Court of Appeal concluded that the Employer had agreed that the 1998 Collective Agreement applied in relations to the 283 re-employed workers, all of whom were members of the Association at the time of re-employment by the Employer. The Court of Appeal accepted that subsequent events had overtaken the earlier High Court Judgement in No.15 of 1998 delivered on 30 November 1998. As a result the Grievor’s terms and conditions of employment after May 1999 remained the same.

Clause 4.7.3 of the Collective Agreement is the clause which continues the entitlement to overseas passage. It states:

"An employee in Category C or D who was eligible for Australasian passages under pre-1972 conditions, shall be granted three (3) adult passages every three (3) years to Auckland, New Zealand, PROVIDED however that he has not opted to receive leave allowances".

It was not disputed that the Grievor was, at the time, a Category D Employee Clause 4.7.5 allows for pro rate grants of passage and states:

"An employee may be granted one or two passages of his entitlement, on a pro rata basis when he proceeds on his annual leave".

The Grievor applied for two overseas passages in 2000 in accordance with the above clauses. The application was granted by the Employer. A copy of the Employer’s payment voucher showed that the sum of $2,576.00 was paid on 6 July 2000 in respect of the grant of two passages.

In accordance with clause 4.7.5 the Grievor applied for his third overseas passage in 2001 by letter dated 21 May 2001. The Employer rejected the application by letter dated 5 June 2000 which, omitting formal parts, stated:

"I am directed to refer to your application for overseas passage dated 21 May 2001 and to advise you that your application will not be considered during your period of in-patient sick leave and is therefore not approved".

The Grievor wrote three letters to the Employer, dated 6 June, 12 July and 22 October 2001 in relation to the Employer’s decision. The grievor did not receive a response to any of those letters.

The Tribunal has considered the evidence and the material placed before it. The Tribunal has concluded that the reason stated by the Employer in its letter dated 6 June 2000 is not a valid reason for refusing to approve or grant the passage. Clause 4.7.3 provides only one disqualification to the benefit which becomes an entitlement when the requirement of three years employment has been satisfied. The Grievor was entitled to apply for the third passage in 2001. The fact that the Grievor was on in-patient sick leave is not relevant to the request for the grant of passage.

In its final submissions and indirectly during cross-examination the Employer raised the issue of continuous service. The Tribunal has concluded on the evidence and material made available that the Grievor’s entitlement to the passage under clause 4.7.3 remained in 2001. It is noted, of course, that the Employer granted two passages in 2000 based on the Grievor’s entitlement which arose in 1999. The Employer did not raise the issue of continuous service with the Grievor in 2000.

During the course of the evidence there was a suggestion that the Employer’s refusal to grant the third passage in 2001 was based upon the Grievor acting as the Association’s General Secretary whilst on some form of leave from June 1999. The Tribunal notes that the Grievor did act as unpaid General Secretary for some time during his leave. During that period as Acting Secretary the Grievor received an allowance for expenses.

However the evidence given by the Employer’s Manager Human Resources and Administration appeared to indicate that the Employer did not regard this matter as a legitimate reason for not approving the grant of passage. The Manager indicated that the Employer did not have any grounds for objecting to the Grievor being on sick leave.

The Tribunal has concluded that the Grievor was entitled to be granted a third overseas passage in 2001.

The Tribunal accepts that the cost of one full adult standard economy return air ticket to Auckland in 2001 was $1450.00.

AWARD

The Grievor is to be paid the sum of $1450.00 being the cost of one adult standard economy return air ticket to New Zealand in 2001 pursuant to clauses 4.7.3 and 4.7.5 of the 1998 Collective Agreement.

DATED at Suva this 22 day of November 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL