Fiji Public Service Association v Land Transport Authority [2006] FJAT 13; Award 60 of 2006 (22 November 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 60 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

LAND TRANSPORT AUTHORITY

FPSA: Mr N Tofinga
LTA: Mr J Savou

DECISION

In Award No 23 of 2006 dated 3 May 2006 the Tribunal settled a dispute between the Fiji Public Service Association (the association) and the Land Transport Authority (the Authority) concerning the Association’s 2004 Log of Claims.

In a document dated 17 August and filed with the Tribunal on 18 August 2006 the Authority sought a Ruling from the Tribunal in relation to a number of questions. Although the document carried the title of "Application for Interpretation of Award No 23 of 2006," the Authority also applied for a variation of the same Award (see paragraph 3 on page 3).

Furthermore, in the same document the Authority also sought a Ruling from the Tribunal whether its reasoning was inconsistent with an earlier Award of the Tribunal in 2005.

The Application was listed for mention on 1 September 2006 and again on 29 September 2006. On that day the Association was directed to clarify its application in writing within seven days. The application was listed for further mention on 27 October 2006.

The Authority filed a fresh application on 6 October 2006.

On 27 October 2006 the parties informed the Tribunal that they did not wish to make any written submissions and would await the Tribunal’s Ruling.

The fresh application raised the same questions as the Authority’s initial Application.

To the extent that the questions raised by the Authority’s Application involve an interpretation of Award No 23 of 2006, the Tribunal will clarify the Award pursuant to section 27 of the Trade Disputes Act Cap 97.

The Tribunal’s Award gave effect to Clause G of the Collective Agreement. The ingredients of clause G were as follows:

The Authority shall not give more or better terms and conditions of employment,

Than the terms and conditions provided for in the Collective Agreement,

To non-union members covered by the scope of this Agreement.

The Recognition clause in the Agreement implied that the terms and conditions set out in the Collective Agreement covered employees who were union members and also to employees who were non-union members. There was in the Collective Agreement a clause which expressly provided that certain employees were not covered by the Collective Agreement

Furthermore clause G of the Agreement implied that it was open to the Authority to negotiate and reach agreement with non-union members who were covered by the agreement. This was not a contradiction. The Authority could not negotiate with employees who were union members covered by the Agreement. That would have undermined the concept of collective bargaining and would have been inconsistent with the Trade Unions (Recognition) Act 1998.

However, those employees who were not union members and who were covered by the Agreement were still free to negotiate with the Authority. Clause G meant that any Agreement reached by the Authority with a non-union employee could not contain more or better terms than those set out in the Collective Agreement.

If the partnership agreement, which formed the basis of agreements reached by the Authority with non-union employees, contained a more generous provision for FNPF contributions by the Authority, then the Authority was in breach of Clause G.

The only appropriate remedy was to award those employees covered by the Collective Agreement the same FNPF contribution to be paid by the Authority as those non-union employees on individual contracts.

The Tribunal does not propose to consider the question raised by the Authority concerning the consistency of Award No 23 of 2006 with Award No 37 of 2005. This is not a matter of interpretation. It falls outside the scope of matters contemplated by section 27 and accordingly the Tribunal has no jurisdiction to deal with the question.

In paragraph 15 of its fresh application, the Authority seeks a variation of Award No 23 of 2006 pursuant to section 28 of the Trade Disputes Act. Section 28 states that an application to vary an Award within nine months of its publication requires the permission in writing of the Minister. Award No 23 of 2006 was published in May of this year. There is no material before the Tribunal to suggest that the Minister has given his approval and as a result the application is not properly before the Tribunal and is struck out.

DATED at Suva this 22 day of November 2006.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL