Fiji Electricity and Allied Workers Union v Fiji Electricity Authority [2007] FJAT 24; Award 25 of 2007 (19 April 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 25 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI ELECTRICITY AND ALLIED WORKERS UNION

AND

FIJI ELECTRICITY AUTHORITY

FEAWU: Mr P Rae
FEA: Mr D Sharma

DECISION

In this Dispute the Tribunal handed down an Interim Award on 13 July 2006 (Award No 39 of 2006). In that Award the Tribunal concluded that there was no obligation on the part of the Employer to pay overtime at the end of the pay period in which it was worked. Overtime can be paid in a subsequent pay period. As a result clause 15 (d) of the Agreement did not apply when overtime was not paid at the end of the relevant pay period in which it was earned. There was no error in wages and therefore no compensation was payable.

The Dispute was subsequently listed for further mention on 28 July 2006. On that day the parties requested further time to consider the Interim Award and agreed that the Dispute should be listed for further mention on 1 September 2006.

On 30 August 2006 the Union filed a supplementary submission in relation to what it claimed were outstanding matters arising out of the terms of reference.

On 1 September 2006 the Tribunal gave directions for further submissions and the Dispute was relisted for mention on 29 September 2006. The Dispute was then listed for special mention on 23 October 2006, at the request of the parties. On that day the Tribunal gave directions for the filing of further submissions.

On 24 November 2006 the Union filed further submissions.

The Dispute was listed for special mention on 18 January 2007. On that day the parties were directed to file a signed statement of agreed facts within 14 days.

A signed Statement of Agreed Facts was filed on 22 March 2007. When the Dispute was called for mention on 23 March 2007, the parties informed the Tribunal that they did not wish to make any further submissions. The relevant facts may be stated briefly. They have been agreed to by the parties.

The two Grievors involved in this Dispute were called to do overtime on Sunday evening 20 June 2004. They commenced the overtime work at 11.00pm. The overtime work was completed at 7.18am on Monday 21 June 2004.

They were to commence their normal turn of duty at 7.30am on Monday 21 June 2004. Both Grievors worked their turn from 7.30am to 5.00pm on that day.

The next pay day was Thursday 1 July 2004. They received the appropriate overtime rate (double time) for the hours worked between 11.00pm on 20 June to 7.18am on 21 June 2004. For the hours worked between 7.30am and 5.00pm on 21 June 2004 they both received pay at the normal rates.

The Grievors then claimed payment at overtime rates for the hours worked between 7.30am and 5.00pm on Monday 21 June 2004.

On 21 October 2004 the Grievors were paid an additional nine hours pay for the hours worked between 7.30am to 5.00pm on Monday 21 June 2004. The Employer stressed that whilst it did not agree that there was an entitlement to overtime for these hours, it made an ex gratia payment. As a result both Grievors had received overtime payments for all hours worked between 11.00pm on Sunday 20 June to 5.00pm on Monday 21 June 2004,

The Grievors then claimed to be entitled to compensation under clause 15 (d) of the Collective Agreement for the delay in the payment of the overtime between 1 July 2004 and 21 October 2004.

As stated earlier, in the Interim Award the tribunal concluded that clause 15 (d) does not apply to the payment of overtime wages which are paid in a pay period subsequent to the pay period in which the overtime was worked.

In its further submission dated 28 August 2006 the Union submitted that the facts of the Dispute gave rise to two further issues. The first is whether clause 15 (d) applies to an error in the payment of meal allowances earned during a particular pay period. The second is whether clause 15 (d) applies to what the Union has referred to as an error in the payment of normal pay earned during a particular pay period.

It should be stated that the Tribunal does not consider that it is required to determine whether the two Grievors were entitled to two meal allowances or any further wages by way of additional payments as a result of having been required to work overtime.

According to its terms of reference, the Tribunal is required to determine whether there has been a breach of clause 15 (d) of the Agreement which states :

"Any error in wages shall be rectified and paid within the next working day and a member kept waiting for his wages shall be paid overtime at the appropriate rates."

The entitlement to the compensation by way of payment of overtime rates only arises when there has been an error in wages. The issue for the Tribunal is to determine whether meal allowances and the other payment to which the Grievors claim an entitlement are wages for the purpose of clause 15 (d).

Meal allowances are dealt with in clause 20 of the Agreement. The conditions for the payment of the meal allowance are specified in clause 20 (g). Allowances are dealt with separately in the Agreement. The Tribunal does not consider allowances to be wages. An error in the payment of meal allowances is not an error in wages for the purpose of clause 15 (d).

The remaining payment which the Grievors claimed was in respect of an eight hours break which is to be paid at normal time rates. The circumstances under which this entitlement arises are set out in clause 14 of the Agreement which is the clause which deals with overtime. The relevant part of clause 14 is clause 14 (a) (iii). It is an entitlement which arises as a result of having worked overtime and comes in the form of an 8 hours break paid at normal rates over and above the standard turn of duty. It is an additional payment which is activated if and when certain specified conditions are satisfied. The fact that it is paid at normal rate does not alter the fact that it is an additional entitlement for working overtime.

As a result the Tribunal is not satisfied that an error in the payment of an entitlement under clause 14 is an error in wages for the purpose of clause 15 (d).

In its preliminary submissions filed on 18 January 2006 at Annex U5 the Union quantified its claim under clause 15 (d) in respect of each Grievor for the alleged errors in payment of the overtime for Monday, the meal allowances and the 8 hours break. The total came to $255,827.45. The Tribunal has no hesitation in concluding that such a result would be absurd as it far exceeds any penalty by way of interest which may otherwise be payable.

The interpretation of clause 15 (d) which the Union in its submissions urged upon the Tribunal would result in Awards which in the Tribunal’s opinion would be inconsistent with the meaning and purpose of clause 15 (d).

AWARD

The payments claimed by the Grievors are not errors in wages for the purpose of clause 15 (d) and as a result there is no entitlement to compensation under clause 15 (d).

DATED at Suva this 19 day of April 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL