Fiji Public Service Association v Airports Fiji Ltd [2006] FJAT 18; Award 65 of 2006 (7 December 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 65 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

AIRPORTS FIJI LIMITED

FPSA: Mr N G Singh with Mr N Tofinga
AFL: Mr K Qoro

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and Airports Fiji Limited (the Employer) concerning two issues arising from the Association’s 2002 Log of Claims.

A trade dispute was reported on 9 June 2004 by the Association. The report was accepted on 18 June 2004 by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Employer failed to nominate its representative to the Committee, the Minister authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 26 August 2004 with the following terms of reference:

"................ For settlement over the failure and refusal by Airports Fiji Limited to negotiate and resolve the union’s 2002 Log of Claims for across the board COLA increases, as follows:

(a) That all salary scales and salary grades in all occupational classes and grades represented by the Association be increased by 5% with effect from 1st January 2002.

(b) That all employees be paid their salary increases/salary scale progression payments in accordance with provisions of the Collective Agreement."

The Dispute was listed for a preliminary hearing on 15 September 2004. On that day and at the request of the parties the Dispute was listed for mention on 20 October 2004 in Nadi. The Dispute was then listed for further mention on 26 January 2005 in Suva again at the request of the parties. Although there was no appearance by or on behalf of the Employer on that day, the parties were directed to file preliminary submissions by 16 February 2005. The Association was directed to advise the Employer accordingly. The Dispute was listed for further mention on 25 February 2005.

The Association filed its preliminary submissions on 10 February 2005. On 25 February 2005, again there was no appearance by or on behalf of the Employer. The Employer was directed to file its preliminary submission within 14 days and the Dispute was listed for hearing on 29 March 2005. Both the Association and the Tribunal Secretary were directed to advise the Employer in writing.

On 29 March 2005 the Tribunal directed that the hearing date be vacated as there was no appearance by the Employer and the Dispute was relisted for mention on 30 March 2005. On that day the Employer was directed to file its preliminary submissions within 21 days and the Dispute was fixed for hearing on 2 August 2005.

The Employer filed its preliminary submissions on 28 July 2005.

At the request of the parties the Dispute was listed for mention on 29 July 2005. On that day the Tribunal directed that the hearing date be vacated as the High Court had granted an injunction in relation to proceedings dealing with issues falling within the terms of reference. The Dispute was then listed for mention on 30 September and 25 November 2005, 27 January, 24 March, 28 April and 26 May 2006, all at the request of the parties.

The hearing of the Dispute commenced on 4 September 2006 in Suva. The parties agreed that the terms of reference raised two issues which could more accurately be stated as:

a) An across the board COLA increase in respect of all salary scales and salary grades of 5% with effect from 1 January 2002.

b) Salary increments and salary scale progression payments be paid to all employees in accordance with the provisions of the Collective Agreement.

At the hearing the Association amended its COLA claim in (a) above from 5% to 4.3%.

At the request of the parties the hearing of the Dispute was adjourned part heard to 11 September 2006.

The hearing of the Dispute resumed in Suva on 11 September 2006. The Association called one witness and the Employer called two witnesses to give evidence. 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 20 September 2006. The Employer filed answering submissions on 26 October 2006 and the Association filed a reply submission on 3 November 2006.

In its submissions the Employer raised a preliminary issue concerning the reference to the Tribunal by the Chief Executive Officer. As has frequently been observed in a number of Awards, the Tribunal has no jurisdiction to consider the lawfulness or validity of its terms of reference. The proper course of action for a party who wishes to challenge any aspect of the procedure up to and including the reference to the Tribunal must do so by way of an application for judicial review in the High Court. Unless and until the High Court determines otherwise, the Tribunal presumes that the reference is regular and correct.

Having read the submissions, the Tribunal is satisfied that the claim for a 4.3% COLA claim in the 2002 Log of Claims has not been satisfied by any other agreement or Award. The claim is consistent with the Consumer Price Index which showed that the average inflation rate in the 12 months ending December 2001 was 4.3%. The Tribunal is prepared to award the COLA increase of 4.3% to be effect from 1 January 2002.

The evidence before the Tribunal was that the Employer has accepted the 1998 Collective Agreement as being applicable to the Association members who were subsequently re-engaged by the Employer following the re-organization.

The Tribunal is satisfied that the Employer is obliged to make the increment payments pursuant to clause 3.9.1 of the Collective Agreement. The Tribunal’s award in respect of this claim is that the Employer restore the annual increment payments with effect from the date of the last payments made by the Employer to those qualified members of the Association who were entitled to be assessed and paid the increases set out in Schedule II to the Agreement.

AWARD

There is to be a 4.3% COLA increase for Association members with effect from 1 January 2002.

The Employer is to resume incremental payments in accordance with clause 3.9.1 of the Collective Agreement to be backdated to the date when these payments were last made by the Employer to those qualified members of the Association.

DATED at Suva this 7 day of December 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL