Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2006] FJAT 26; Award 38 of 2006 (7 July 2006)

THE REPUBLIC OF THE FIJI ISLANDS

NO. 38 OF 2006

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI BANK AND FINANCE SECTOR EMPLOYEES UNION

AND

ANZ BANKING GROUP LIMITED

FBFSEU: Mr P Rae
ANZ: Mr J Apted

DECISION

This is a dispute between the Fiji Bank and Finance Sector Employees Union (the Union) and ANZ Banking Group Limited (the Bank) concerning the employment status of Ms Alison Naivaluwaqa (the Grievor).

A trade dispute was reported by the Union on 15 July 2005. The report was accepted by the Chief Executive Officer who referred the Dispute to a Disputes Committee. As a consensus decision was not reached, 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 2 November 2005 with the following terms of reference:

".....for settlement over the employer’s failure to convert Ms Alison Naivaluwaqa from part-time to full-time employment. The union views the employer’s action to be in breach of the Part-Time Agreement as well as being unjust, unfair and discriminatory. The union also seeks Ms Alison Naivaluwaqa’s conversion to full-time status at the Bank’s Nadi Airport Branch to which she was entitled."

The Dispute was listed for a preliminary hearing on 25 November 2005. On that day the parties were directed to file preliminary submissions by 6 January 2006 and the Dispute was listed for mention on 27 January 2006. On that day the Bank was granted an extension of seven days to file an answering submission and the Union was directed to file any necessary reply submission within seven days thereafter. The parties informed the Tribunal that they did not intend to lead evidence and that a hearing would not be necessary.

The Union had filed its preliminary submission on 26 January and the Bank filed its answering submission on 3 February 2006. At the direction of the Tribunal the Dispute was listed for special mention on 31 March 2006. On that day the Union was granted an extension of 14 days to file its reply submission.

The Union filed its reply submission on 19 April 2006. Again at the direction of the Tribunal the Dispute was listed for special mention on 27 April 2006. On that day the parties were directed to file a signed statement of agreed facts by 2 June 2006 and the Dispute was listed for further mention on 23 June 2006.

A signed Statement of Agreed Facts was filed on 22 June 2006. On 23 June the parties confirmed that there was no requirement for a hearing and that they did not wish to file any further submissions.

In January 2005 the Bank advertised three full-time teller position vacancies at the Nadi Airport Branch. These were three new positions. Employment at the Nadi Airport Branch offers shift work and shift allowances to full-time tellers. Part-time tellers are not given the opportunity to work shift hours which attract these allowances.

At the time the vacancies were advertised, the Grievor was employed at the Nadi Airport Branch as a permanent part-time teller. She had been appointed as a permanent part-time teller in November 2003 following six months satisfactory performance on probation.

The Grievor and 11 other permanent part-time tellers from various branches applied for the three vacant full-time positions. The Grievor was therefore applying to change from part-time to full-time employment as a teller at the same Branch.

In March 2005 the Grievor and three other applicants were short-listed for interviews on the basis of standard scoring criteria. The four applicants selected for interview had the highest scores. The Grievor had apparently scored the highest at this pre-interview short-listing stage.

The four applicants were interviewed by a panel consisting of the Nadi Airport Branch Manager (Mr. P. Reddy) and the Bank’s District Sales and Service Manager (Mr. C. Mar). The candidates were assessed by the use of a standard form containing scoring criteria.

The Grievor was unsuccessful. Two permanent part-time tellers from outside the Nadi Airport Branch (one from the Bank’s Tavua Branch and one from the Suva Branch) and another permanent part-time teller from the Nadi Airport Branch were assessed by the panel to be more suitable for the vacancies and were appointed.

It would appear that both members of the panel were in agreement in their interview assessment of the Grievor. The panel rated the three successful applicants more highly than the Grievor.

The Grievor subsequently applied for and was appointed to a permanent full- time teller’s position at the Bank’s Nadi Town Branch on 18 July 2005. It is acknowledged by the parties that the Grievor no longer seeks a full-time teller position at the Nadi Airport Branch.

At the time of the selection process for the three permanent full-time teller positions at the Nadi Airport Branch, the Grievor was pregnant and was due to proceed on her maternity leave on 14 March 2005.

The Branch Manager who was one of the two members of the interview panel had only recently been appointed to the Nadi Airport Branch. It was suggested in the preliminary submissions that the newly appointed manager had formed an unfavorable impression concerning the Grievor’s work performance.

Although the terms of reference refer to an allegation that the Grievor’s non-selection was unfair and discriminatory, the Union did not pursue the issues of bias or discrimination. Those matters will be treated by the Tribunal as having been withdrawn.

Teller positions at the Bank are filled by both full-time and part-time employees. By agreement with the Union, the Bank may employ 200 part-time tellers. The number of part-time tellers is roughly twice the number of full-time tellers. Their competencies and duties are the same. The nature of the work and its short-term intensity at various times of the day gives rise to a need for both full-time and part-time tellers. Part-time tellers provide flexibility of working hours for both the employees and the Bank. Two-part time tellers may "job-share" a full-time position under the agreement.

Clause 3 A (vi) of the Memorandum of Agreement for Part-Time Staff provides:

"At the end of the contracted period, the Bank shall offer a part-time employee a permanent part-time position, subject to satisfactory performance during the probation period.

A permanent part time employee may change to a full- time employee if the Bank has a suitable vacancy. Such a change between modes of employment does not break the previous service with the Bank. Changes from one mode of employment to another will require the signing of a new contract and entitlements such as Annual Leave/Long Service leave will be cashed out. Any other accrued entitlements such as sick leave will convert to the appropriate rate in the full-time mode of employment."

The Union submits that the Bank’s decision to appoint two part-time tellers from outside the Branch to the vacant full-time teller positions at the Nadi Airport Branch denied the Grievor a right to convert to full-time employment.

The Bank acknowledges that it has no policy of giving full-time employees within any particular branch any right or preferential advantage to any full-time vacancy within that branch. Furthermore the Bank acknowledges that it also has no policy of recognizing a general right of, or giving a preference to, part-time employees at a particular branch when making appointments to full-time vacancies within the Branch. The Bank’s policy is to advertise a vacant position and staff who apply are assessed on the competencies of the position and selected on merit.

Although the Grievor does not now seek permanent full-time employment at the Nadi Airport Branch and although the issues of bias and discrimination no longer form part of the Dispute, the Tribunal is still required to determine whether the failure to appoint the Grievor to a permanent full-time position at the Nadi Airport Branch ahead of two part-time applicants who were employed at other of the Bank’s branches was in breach of the second paragraph of clause 3 A (vi) of the Agreement.

The Union submitted that the clause provides an option for a part-time teller to convert to full-time should a suitable vacancy exist. It is submitted that the clause confers a contractual right for a part-time teller to be converted to full-time should the option be exercised. The Union also submits that the use of the word "may" in the clause confers a discretion or gives the option to the part-time employee and not to the Bank. In fact the Union’s position is expressed in stronger terms in its reply submission dated 18 April 2006. In paragraph 5 the Union claims that the clause:

".....confers a right on any officer who is employed by the Bank as a permanent part-time employee at any given branch of the Bank to convert to full-time employment in the same role at the same location if a vacancy arises."

The Bank submitted that, taking into account the other provisions of the Agreement, the background circumstances and the absence of any express words supporting the Union’s position, clause 3 A (vi) could not reasonably be interpreted as giving to a permanent part-time employee in a particular branch a right to a full-time vacancy involving the same work at the same branch to the exclusion of other more suitable applicants, whether part-time or full-time, from other branches. The Bank submitted that result would be contrary to the interests of all permanent part-time employees covered by the Agreement as well as the interests of full-time employees who may wish to apply for the position for any one of a number of legitimate reasons. The Bank claimed such a construction would also interfere with management rights and be contrary to the generally accepted principle that appointments should be based on some form of merit criteria.

The task before the Tribunal is to determine the meaning of the second paragraph of clause 3 A (vi) of the Agreement. What this really means is that the Tribunal must discover the intention of the parties. In determining the intention of the parties the Tribunal must apply the principle that the parties are assumed to have intended what they said. In relation to any particular provision such as clause 3 A (vi) the words used are usually given their normal or ordinary meaning.

The words used in the second paragraph of clause 3 A (vi) are clear and unambiguous. The first sentence simply states that a permanent part-time employee may change to a full-time employee if the Bank has a suitable vacancy. There are no qualifying words in the sentence and the remainder of the paragraph does not in any way qualify the meaning of the sentence. The words used in the first sentence do not restrict or limit applications to a particular group or class of permanent part-time employees, nor is there any limitation to the full-time positions to which the part-time employees may change, other than the requirement that the vacancy be suitable.

The words mean that any permanent part-time employee may change to a full-time employee at their present or any other branch of the Bank. The only prerequisite is that the Bank has a suitable vacancy.

It is not difficult to contemplate that more than one permanent part-time employee from either the same branch or from other branches may wish to become a full-time employee when a suitable vacancy becomes available. It is the Tribunal’s view that a suitable vacancy means a vacancy which is suited to the skills, qualifications, experience and training of the permanent part-time employee. If there is more than one permanent part-time applicant located at either the branch where the vacancy exists or at other branches, then the Bank is required to determine which applicant is most suited to fill the vacancy.

Where there is more than one permanent part-time employee desirous of changing to a full-time employee, the words "may change to" must of necessity be read as "may apply to change". In the Tribunal’s opinion it makes no difference whether all the permanent part-time applicants are located at the branch where the vacancy exists or whether one or more are located at that branch and other applicants are located at other branches.

The Tribunal must also take into account that clause 3 A (vi) must be interpreted in the context of the Collective Agreement of which it forms part. As a result it has to be acknowledged that collective agreements are not negotiated in a vacuum but are arrived at in the context of general industrial relations practices and within a specific negotiating context.

The Bank employs full-time employees who are covered by one collective agreement and part-time employees who are covered by another. Depending upon whether a particular employee is employed as full-time or
part-time, the relevant collective agreement will form an implied condition of his or her contract of service (see section 34 of the Trade Disputes Act).

The Grievor’s contract of service included as an implied condition the provisions of the Memorandum of Agreement for Part-Time Staff. The vacancies at the Nadi Airport Branch were full-time positions and the successful applicants would become full-time employees whose contracts of service would include as an implied condition the terms of the Collective Agreement covering full-time employees.

It is the Tribunal’s view that clause 3 A (vi) permits permanent part-time employees to apply for and be appointed to full-time positions and thereby become full-time employees. It is a provision which opens up the possibility of full-time employment to part-time employees if and when a suitable vacancy exists. But for this provision permanent part-time employees performing part-time work could not be assigned full-time work which was the domain of full-time employees covered by a different collective agreement.

In conclusion the Tribunal is satisfied that clause 3 A (vi) does not give to a permanent part-time employee at a particular branch any right to be appointed to a suitable full-time vacancy at that branch when there are other applicants being either full-time or part-time employees from that same branch or from any other branch.

AWARD

Clause 3 A (vi) of the Part-Time Collective Agreement does not give to a permanent part-time employee any right to be appointed to a suitable full-time vacancy at that branch when there are other applicants either full-time or part-time from the same branch or any other branch.

DATED at Suva this 7 day of July 2006.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL