Mine Workers Union of Fiji v Emperor Gold Mining Company [2006] FJAT 19; Award 66 of 2006 (8 December 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 66 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

MINE WORKERS UNION OF FIJI

AND

EMPEROR GOLD MINING COMPANY

MWUF: Mr R Singh with Mr S Chandra
EGM: Mr A Narayan

DECISION

This is a dispute between the Mine Workers Union of Fiji (the Union) and Emperor Gold Mining Company (the Employer) concerning the interpretation of certain provisions in what is known as the "Me Caka" agreement

A trade dispute was reported by the Union on 4 October 2005. The report was accepted on 13 January 2006 by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As the Union 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 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 21 February 2006 with the following terms of reference:

"...................... for settlement over the company’s failure to understand "Me Caka" 5/2 agreement and its interpretation. The union seeks that the company re-negotiate the sick leave condition, pay day issue and absent without leave issue."

The Dispute was listed for a preliminary hearing on 24 February 2006. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 24 March 2006.

The Employer filed its preliminary submission on 23 March 2006.

As there was no appearance by or on behalf of the Employer on 24 March 2006, the Tribunal directed that the Dispute be relisted for mention on 28 April 2006.

The Union filed its preliminary submission on 27 April 2006.

The hearing of the Dispute commenced on 10 July 2006 in Suva. On that day the parties clarified that they were seeking an interpretation of the "Me Caka" agreement with respect to those clauses dealing with pay day, sick leave and absent without leave. At the request of the parties the hearing was adjourned part heard to 28 July 2006 for mention only. On that day the parties informed the Tribunal that they did not wish to call evidence but would rely on the filing of final submissions. A schedule was fixed by the Tribunal.

The Union filed its final submissions on 12 September 2006. The Employer filed answering submissions on 25 October 2006. In a letter dated 24 November 2006 forwarded to the Tribunal by the Fiji Bank and Finance Sector Employees Union on behalf of the Union, the Tribunal was informed that the Union did not wish to file any further submissions. The parties requested the Tribunal to settle the Dispute based on the facts set out in the submissions and the submissions themselves.

The terms and conditions of employment of the Union’s members were set out in a Collective Agreement. Pursuant to section 34 (7) of the Trade Disputes Act the provisions of that agreement became an implied condition of the contract of service between every employee and employer to whom the agreement applied. The Collective Agreement contained provisions relating, amongst other things, to sick leave, pay day, and absent without leave.

By an agreement in writing dated 22 June 2005 (known as the "Me Caka" – 5/2 Agreement) the parties made certain amendments to the Collective Agreement including the provisions relating to sick leave, pay day and absent without leave.

It is the meaning of those clauses in the "Me Caka" agreement concerning the three issues which is the subject of this Dispute.

The "Me Caka" Agreement was entered into by the parties, according to the preamble, following discussions between them, as "the way forward". At the end of the agreement it is stated that "the application of this agreement will supercede any part of the existing agreements where applicable". The agreement was registered on 16 August 2005 pursuant to the requirements of the Trade Disputes Act.

Clause 6 deals with sick leave and stated:

‘The following amendments in respect of any sick leave in excess of the current 10 days" entitlement are agreed:

6.1 On completion of 10 days entitlement: Joint review by the Company nominated doctor and the doctor who issues the majority of the 10 days’ sick leave certificates.

6.2 Excess of 10 days entitlement by 5 days: Final written warning to be valid for 12 months from date of issue.

6.3 Excess of 10 days entitlement by 10 days: Discharge."

It should be noted that in clause 8 of the agreement the parties agreed that clause 6 was to remain in force until 30 September 2005 at which time either party may institute further negotiations.

The Union submitted that the amendment entitled its members to 10 days sick leave together with another 15 days. The Union also submitted that the medical review must be by the nominated doctors of both parties.

The Employer submitted that the agreement retained the sick leave entitlement under the Collective Agreement but lessened the number of days before an employee received the formal warning and became liable to be discharged.

Clause 5 deals with pay day and stated:

"Pay Day will be on either a Wednesday or a Saturday depending on an employee’s rostered day off".

The Union’s submissions dealt more with its concerns about how the arrangement in clause 5 worked and as result its desire to have clause 5 amended further. Its submissions did not address the question of interpretation of the clause.

The Employer submitted that the words in clause 5 were clear and meant what they said. The Employer submitted that there was no ambiguity or confusion.

Clause 7 of the "Me Caka" agreement dealt with absent without leave. The Union submitted that the issue arising under clause 7 had been resolved. Neither party made any substantive submissions on the interpretation of this clause. The Tribunal considers it appropriate under the circumstances to treat this part of the dispute as having been withdrawn by consent.

The principles to be applied when interpreting a written agreement, including a Collective Agreement, were discussed by the Fiji Court of Appeal in Din and Anor –v- Westpac Banking Corporation (2004) FJCA 30.

As a result the Tribunal accepts that the interpretation of clauses 5 and 6 of the "Me Caka" agreement should be approached objectively. This means that the Tribunal is required to determine what meaning the clauses would convey to a reasonable person having the relevant background knowledge. The Tribunal should not be concerned with what the parties to the agreement thought the clauses meant.

The Tribunal also accepts that any material relating to the negotiations between the Employer and the Union that led to the "Me Caka" agreement is irrelevant when determining the meaning to be attributed to the two clauses.

Furthermore, what the parties say they intended the clauses to mean is irrelevant. Any belief the Union may have had about how the two clauses should be interpreted is irrelevant. The parties have agreed that the 2 clauses in the "Me Caka" agreement were to amend the Collective Agreement. There was no misunderstanding.

The question then is what is the meaning that would be conveyed by each clause to a reasonable person with the relevant background knowledge.

In relation to clause 6, such a person would be aware that as an amendment to the Collective Agreement which was to operate till 30 September 2005 clause 6 was intended to address the level of sick leave absenteeism by temporarily dealing more severely with employees who exceeded the 10 day entitlement. The Tribunal has concluded that the wording of clause 6 could in no way be taken by a reasonable person to convey the meaning that the clause was to bestow a more generous regime of sick leave entitlements.

For this reason the Tribunal is satisfied that the interpretation for which the Employer contended is correct.

In relation to clause 5, the meaning that would be conveyed by the clause to a reasonable person with the relevant background is simply that employees will be paid on either a Wednesday or a Saturday depending upon which of the two they are rostered off.

Whatever the problems may be with giving effect to clause 5, those matters do not form part of the reference in this Dispute and are beyond the Tribunal’s jurisdiction.

The dismissal of 38 employees, for whatever reason, does not form part of the Tribunal’s term of reference.

AWARD

Clause 6 of the "Me Caka" agreement means that the entitlement for sick leave is 10 days. Upon completion of that 10 days entitlement, there is to be a joint review by the Company nominated doctor and the doctor who issued the majority of the 10 days’ sick leave certificates. This is not the same as a doctor nominated by the Union. Once an employee has exceeded the 10 day entitlement by five days, there is to be a final written warning which is valid for 12 months from date of issue. When the 10 days’ entitlement is exceeded by 10 days, the employee is liable to be discharged.

Clause 5 means what it says. Pay day is to be on either a Wednesday or a Saturday, depending upon whether the employee is rostered off on a Wednesday or a Saturday.

DATED at Suva this 8 day of December 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL