Tropic Wood Employees and Allied Workers Union v Tropik Wood Industries Ltd [2006] FJAT 23; Award 70 of 2006 (14 December 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO 70 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

TROPIC WOOD EMPLOYEES & ALLIED WORKERS UNION

AND

TROPIK WOOD INDUSTRIES LIMITED

TWEAWU: Mr S Lingam
Tropic Wood: Mr J Bale

DECISION

In Award No 41 of 2002 dated 25 November 2002, the Tribunal settled a dispute between Tropik Wood Employees and Allied Workers Union (the Union) and Tropik Wood Industries Limited (the Company) concerning the appointment of casual employees as permanent workers.

By letter dated 23 January 2006 the Company applied for a variation of that Award pursuant to section 28 of the Trade Disputes Act Cap 97.

It is appropriate to note at this stage that more than three years has elapsed since the Award was made. As a result the permission in writing of the Minister is not a condition precedent for the application. The Tribunal has jurisdiction to consider the application.

Although the application referred to section 27 of the Trade Disputes Act, that section concerns applications for the interpretation of an Award and is not relevant in these proceedings.

The application was listed for mention on 27 January 2006. On that day the parties were directed to file their preliminary submissions by 27 February 2006 and the Dispute was listed for mention on 24 March 2006.

The Company filed its preliminary submissions on 8 March 2006.

On 24 March 2006 the Union was granted a further 21 days to file its preliminary submissions. The Dispute was again listed for mention on 28 April 2006. The Union was then directed to file its submissions on or by 1 May 2006 and the Dispute was listed for mention on 26 May 2006.

The Union filed its preliminary submissions on 1 May 2006.

The Application was fixed for hearing on 5 September 2006. On that day the Company made an application for the hearing date to be vacated. The application was not opposed.

The Tribunal granted the application on terms that the Company pay $60.00 to the Union as costs thrown away within 21 days. The Dispute was relisted for mention on 29 September 2006 and then on 27 October 2006, at the parties request. The parties were then directed to file a signed statement of agreed facts. This was filed on 23 November 2006.

On 24 November 2006 the parties informed the Tribunal that there was no requirement to call evidence. The parties also indicated that they did not wish to make any further submissions on the application.

The material facts relating to this application are conveniently summarized by the parties in their signed statement of agreed facts.

Award No 41 of 2002 provided, amongst other things, that Isikeli Baseisei, Mesulame Namua and Mohammed Munif (the Grievors) should be re-instated and made permanent employees by the Company without loss of pay or benefits with effect from 26 January 2001.

As at January 2005 the Company had not complied with the Award. In February 2005 the Union, on behalf of the three Grievors, commenced negotiations in an effort to resolve the matter.

On 2 March 2005 the Company paid $5000 to each of the three Grievors. On the same date the Union wrote a letter to the Company which stated:

"This is to confirm that Award 41/02 has been settled in full and the Union will not take any further action against Tropik Wood Industries Limited in respect of the above Award.

In addition, the Union agrees that the employees affected by the above Award, including Mesulame Namua, and who are not currently employed by Tropik Wood Industries Limited (Company) will not be re-employed or re-instated by the Company".

The letter was signed by both the Union’s General Secretary and the Union’s Treasurer.

It would appear that by letters dated 3 March 2005, the Grievors acknowledged having accepted $5000 "in full and final settlement" in respect of the Award. In the same letter they each agreed that they would not be re-instated by the Company.

The applicant Company submitted that the Union agreed to the variation of the Award in its letter dated 2 March 2005. The Company pointed out that the Union wrote on its official letterhead and that the letter was signed by the General Secretary and the Union Treasurer. The Company submitted that the letter conveyed the clear intention on the part of the Union to have the Award varied according to the terms set out in the letter. The Company pointed out that it has paid each of the Grievor’s the sum of $5000.00, a fact which is not disputed by the Union.

In its submission the Union opposed the application for a number of reasons.

First, the Union maintained that the Employer had blatantly defied the Award. In support of its contention the Union made reference to a number of matters, none of which was included in the statement of agreed facts. The matters referred to were not in evidence and have not been the subject of any agreement. Submissions are not evidence.

Secondly, the Union submitted that as the Company did not seek to challenge the Award by way of judicial review, the application for variation should not be entertained. The Tribunal does not accept this submission. There is no reason why the Tribunal should consider that an application to challenge an award by way of judicial review is a pre-requisite for making an application for a variation of an award.

Thirdly, the Union submitted that the settlement was not an agreement between the Union and the Employer. The Union also submitted that the agreement had not been registered pursuant to the Trade Disputes Act Cap 97.

The Tribunal agrees that only an agreement between the parties (as defined) to the Dispute is relevant in respect of proceedings before the Tribunal. The Tribunal is satisfied that, whilst payment may have been accepted and acknowledged by the Grievors, the agreement to settle the matter was made between the Company and the Union.

The agreement was made to settle a long-standing dispute. It represented "an out of court" settlement made by the parties after the Award had been published. It was not an amendment to the Collective Agreement and was therefore not required to be registered.

The fourth reason put forward by the Union was flawed and also relied upon facts which were not in evidence and were not included in the statement of agreed facts. The parties are always at liberty to settle any dispute on terms mutually agreed upon whether before, during or after the hearing or even after the Award has been published. There are many and varied reasons why parties may agree to settle on terms which differ from the Award or the Judgment.

The fifth reason related to the inadequacy of the amount which was accepted by the Grievors as settlement. None of the material relied upon by the Union was in evidence as the parties had opted not to have a hearing. None of the material was included in the statement of agreed facts.

The Tribunal is satisfied that the agreement referred to in the statement of agreed facts was intended by the parties to settle the dispute. It was freely and voluntarily made.

Its terms are clear and unambiguous. There is no basis for the Tribunal to interfere with the agreement. The Tribunal can not look beyond the material admitted into evidence by the statement of agreed facts. The parties have reached a post Award agreement in respect of the Dispute. There is no reason why such an agreement should not form the basis of a variation of the Award.

AWARD

Award No 41 of 2002 is varied in accordance with the terms of an agreement reached between the parties, written confirmation of which is set out in the correspondence referred to in paragraphs 7 and 8 of the signed Statement of Agreed Facts dated 23 November 2006.

DATED at Suva this 14 day of December 2006

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL