Fiji Public Service Association v National Fire Authority [2005] FJAT 45; Award 71 of 2005 (14 December 2005)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 71 OF 2005

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

NATIONAL FIRE AUTHORITY

FPSA: Mr N Tofinga
NFA: Mr J Apted

DECISION

This is a dispute between the Fiji Public Service Association (the "Association") and the National Fire Authority (the "Authority") concerning terms and conditions of employment.

A trade dispute was reported by the Union on 8 January 2004. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Employer failed to nominate a representative to the Committee, 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 4 March 2004 with the following terms of reference:

"...... for settlement over the National Fire Authority’s continued practice of undermining the Association’s consultative rights in matters pertaining to the terms and conditions for employees which is clearly provided for in article B, D & F of the collective agreement (refer Appendix A) when they:

[8 of 9 matters were resolved by the parties, leaving only 1 issue to be settled by the Tribunal]

v. Refused to pay the call back or overtime rate for sub-officer Waisea Mateiwai for overtime worked in breach of 2.2.1 of the Collective Agreement".

The Dispute was listed for preliminary hearing on 10 March 2004. On that day the parties were directed to file preliminary submissions by 21 April 2004 and the Dispute was listed for mention on 12 May 2004.

As the Authority had not filed its submission by the due date it was directed to file its submission by 9 June 2004 and the Dispute was listed for further mention on 18 June 2004. On that day the Authority was directed to file its submissions by 30 June 2004 and the Dispute was again listed for mention on 14 July 2004.

The Association had filed its preliminary submissions on 1 April 2004 and the Authority eventually did so on 14 July 2004.

At the request of the parties the Dispute was listed for mention on 11 August 2004. On that day the Dispute was listed for hearing on 6 and 7 October 2004.

The hearing of the Dispute commenced in Suva on 6 October and continued on 7 October when it was adjourned part heard for mention on 19 November 2004. The hearing resumed on 9 February 2005. On that date the parties informed the Tribunal that the only remaining unresolved matter was item V in the terms of reference. The other items had either been settled or withdrawn. A signed Memorandum of Agreement to that effect would be filed in due course for the purposes of obtaining a consent order in respect of those eight items. The Tribunal heard evidence from four witnesses in relation to item V of the Reference.

At the conclusion of the evidence the parties sought and were granted leave to file written submissions. The Association filed final written submissions on 18 March 2005. The Authority filed answering submissions on 17 August and the Association filed a reply submission on 29 August 2005.

By letter dated 1 December 2005 the Association forwarded to the Tribunal two copies of signed Memorandum of Agreement dated 30 November 2005 in respect of the eight items for which consent orders are sought from the Tribunal.

Waisea Mateiwai (the Grievor) was appointed Officer in Charge at the Tavua Fire Station with effect from December 2002. As such he was required to work 8.00am to 4.30pm Monday to Friday. This represented a 37½ hour working week. It was conceded that the wage received by the Grievor in this position was the equivalent to a 56 hour working week. However, as Officer in Charge,
the Grievor was required to attend at the scene of any fire call after hours and did not receive any overtime for such call outs.

The roster at Tavua was based on a three day cycle. Each watch was on duty for 24 hours and then stood down for 48 hours. This arrangement required three drivers to be posted to Tavua. There was one volunteer driver and a substitute driver. There was an ongoing shortage of one driver in 2003 on top of occasional absences due to sickness in respect of the other two drivers from time to time. As a result the Grievor acted as driver whenever the volunteer driver and the substitute driver were not available because they were either both on a compulsory day off or both on sick leave or a combination of either.

During these rostered 24 hour periods the Grievor remained on call as driver during his office hours (8.00am to 4.30pm) and then remained at the station from 4.30pm to 8.00am at over time rates. The claim for overtime was for the period 4.30pm to 8.00am. The Tribunal is satisfied that it was necessary and reasonable for the Grievor to remain at the station during those periods when he was performing the duties of driver between 4.30pm and 8.00am. The Tribunal is also satisfied that the Grievor did in fact remain at the fire station on those occasions.

Between January and September 2003 the Grievor worked an additional 925 hours when he acted as a driver in the circumstances described in the previous paragraphs. He was paid a sum in excess of $7000 for those hours. There is an outstanding claim for a further 36 hours overtime when the Grievor acted as a driver outside of his standard day time hours. This is claimed in the Association’s letter to the Authority dated 30 September 2003.

The claim is made under clause 2.2.1 of the Agreement. The only copy made available to the Tribunal is of poor quality, and appears to have been amended by hand.

Clause 2.2.1 assumes that management may require employees to work overtime as being one way in which the work may be performed. Management may have such work performed by other means such as recalling employees, by instituting temporary transfers or by hiring temporary or casual staff.

The Tribunal accepts that the Grievor did roster himself as driver for a 24 hour period whenever it was necessary to do so. As Officer in Charge he was entitled to do this and he was qualified. The Tribunal is satisfied that occasionally the volunteer driver was also rostered as driver for overtime payments.

In the unusual circumstances of this case the Tribunal is satisfied that clause 2.2.1 does apply to the Grievor and the additional hours spent at the fire station as driver should be regarded as overtime for which the Grievor is entitled to be paid.

The Tribunal accepts that when the Grievor was acting as a driver he was not performing his call out function as officer in charge. The salary which the Grievor was paid as officer in charge was a payment intended to cover any necessary after hours call out. As such it was not to be regarded as payment or part payment for overtime hours worked when the Officer in Charge was rostered as a driver.

The Tribunal notes that the practice of making these overtime payments to the Grievor indicated that the Authority knew or ought to have known that there was a driver shortage at Tavua in 2003 and that the Grievor was placing himself on watches as a driver under circumstances which resulted in overtime payments being claimed. The practice continued from January to September in 2003. The Authority chose this manner for the performance of work and paid him accordingly. It cannot arbitrarily and retrospectively refuse to pay the claim for 36 hours when it had hitherto paid claims totalling 925 hours of overtime. The Grievor would not normally be entitled to any payments of overtime once he had been put on notice that the Authority wanted the practice to discontinue. However the evidence from the Grievor was that the Authority continued to pay overtime when the Grievor acted as rostered driver.

AWARD

In relation to item V in the Terms of Reference the Grievor is entitled to be paid the 36 hours claimed as overtime whilst acting as a driver in September 2003 at the Tavua Fire Station.

CONSENT AWARD

In relation to items I-IV and VI to IX in the Terms of Reference, the Award of the Tribunal is in accordance with the signed Memorandum of Agreement dated 30 November 2005, a copy of which is annexed hereto.

DATED at Suva this 14 day of December 2005

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL