Fiji Public Service Association v National Fire Authority [2007] FJAT 27; Award 28 of 2007 (14 May 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 28 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

INTERPRETATION AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

NATIONAL FIRE AUTHORITY

FPSA: Mr N Tofinga
NFA: Mr J Apted

DECISION

In Award No 71 of 2005 dated 14 December 2005 the Tribunal settled a dispute between the Fiji Public Service Association (the Association) and the National Fire Authority (the Authority) concerning terms and conditions of employment.

Of the nine items which were in dispute, eight were resolved by the parties and were the subject of a consent award. The remaining item (v) in dispute was settled by the Tribunal. The terms of reference stated the issue in the following terms :

"v. Refused to pay the call back or overtime rate for sub-officer Waisea Mateiwai for overtime worked in breach of 2.2.1 of the Collective Agreement".

The Tribunal found that the Grievor Mateiwai was entitled to be paid the 36 hours claimed as overtime whilst acting as a driver in September 2003 at the Tavua Fire Station.

By letter dated 8 February 2007 the Association applied for an interpretation of that Award to determine whether the Award applied only to the overtime worked by the Grievor in 2003 or whether it was to apply when and if overtime was worked in identical circumstances.

The application was listed for mention on 23 February 2007. On that day the Association was directed to file submissions on its application within 21 days. The Authority was directed to file answering submissions within 21 days thereafter and the Union was required to file any necessary reply submission within 14 days thereafter.

The Association filed its submissions on 28 February 2007. The Authority filed answering submissions on 17 April and the Association filed an answering submission on 8 May 2007.

Under the Trade Disputes Act, the Tribunal’s jurisdiction in any particular dispute commences with the reference from the Permanent Secretary of the Ministry and concludes when an award has been published. When the Tribunal has completed its task it is said to be "functus officio" and cannot afterwards alter or amend the Award except to correct clerical mistakes, accidental slips or omissions, or errors of a merely technical nature.

The Trade Disputes Act provides for two limited exceptions to this general principle of "functus officio". First. Section 27 gives a limited jurisdiction to the Tribunal to determine any question which arises as to the interpretation of any award. Secondly, section 28 provides for an application to vary an award.

The jurisdiction of the Tribunal is limited to its terms of reference. The Tribunal is what is called a creature of statute. This means that its powers and functions are defined by statute. It has no inherent jurisdiction to go beyond that which is provided for in the Trade Disputes Act and it cannot exceed the jurisdiction bestowed upon it by its terms of reference. Whatever may be the powers and functions of an Arbitrator whose jurisdiction arises under either a commercial contract or a Collective Agreement, they do not and cannot apply to the Arbitration Tribunal established by the Trade Disputes Act.

Having read the submissions, the Tribunal has concluded that the Association’s application must be declined for two reasons.

First, the Association’s application is, in effect, an application for the Tribunal to revisit the Award, rather than interpret it

The Tribunal could not determine the Association’s application without hearing evidence as to the circumstances in which the subsequent overtime had been worked since the period covered by the Award. The Tribunal cannot re-open the Dispute to hear further evidence to determine the Association’s application.

Secondly, the issue raised by the Union relates more to a question of jurisdiction. It was clear from the Tribunal’s terms of reference that the Grievor Mateiwai’s claim was retrospective in nature. The claim was for 36 hours worked in 2003. The Award was made to settle that claim. If the Tribunal had proceeded to award the Grievor payment for overtime (even under the same circumstances) worked in the future, it would have exceeded its jurisdiction.

An application for interpretation of an award cannot provide a justification for the Tribunal to exceed its jurisdiction by extending the award to cover a period beyond that which was limited, if not expressly, then impliedly by the terms of reference.

For these reasons, the Tribunal does not consider that the application is a proper application for interpretation within the meaning of section 27 of the Act.

The appropriate course of action is for the Association to report a fresh trade dispute. If the matter proceeds to the Tribunal and if the evidence supports the Association’s contention that the circumstances are identical, then the Tribunal, in the interests of consistency and certainty, may be guided by its earlier Award.

The application for an interpretation of Award 71 of 2005 is declined.

DATED at Suva this 14 day of May 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL