Fiji Bank and Finance Sector Employees Union v ANZ Banking Group Ltd [2007] FJAT 29; Award 30 of 2007 (1 June 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 29 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

INTERPRETATION AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

PUBLIC SERVICE COMMISSION

FPSA: Mr R Singh
PSC: Mr T Elo with Ms L Ravuso

RULING

In Interim Award No 52 of 2005 dated 19 October 2005 the Tribunal settled in part a dispute between the Fiji Public Service Association (the Union) and the Public Service Commission (the Commission) concerning the Union’s 2004 Log of Claims.

In the interim Award the Tribunal settled the Union’s COLA claim by awarding COLA increases with effect from 1 January 2004 of $14.00 per week for those members earning up to $17,500.00 per annum, $10.00 per week for those earning between $17501.00 and $35,000.00 and $7.00 per week for those earning in excess of $35000.00 per annum.

The remaining component of the log of claims submitted by the Union was a claim for increases in all work related allowances of 15% from 1 January 2004. This was settled by the Tribunal in Consent Award No 30 of 2006 dated 19 May 2006. The Tribunal’s Award was in the terms of paragraphs 6 and B1 and Appendix A of an Agreement between the parties dated 25 April 2006.

By letter dated 4 April 2007 the Commission applied for an interpretation by the Tribunal of clauses 7 (i) and (ii) of a Partnership Agreement dated 13 April 2006 made by the Parties and the Government. In the same letter the Commission also applied for an interpretation by the Tribunal of clauses B1 (a) and B1 (b) of a Memorandum of Agreement dated 25 April 2006 made by the Parties. Attached to the letter were copies of both Agreements. The second Agreement was the same Agreement which had been relied upon by the parties when they sought their Consent Award.

The application was listed for mention on 17 April 2007. On that day the Tribunal gave directions for the filing of written submissions on the application. The parties indicated they they did not wish to call evidence and that there was no requirement for a hearing. The Tribunal also indicated on that day that the Partnership Agreement was not within the scope of the Tribunal’s jurisdiction.

The Tribunal indicated that it was prepared to consider the Commission’s application only in so far as it related to the Memorandum of Agreement dated 25 April 2006.

By letter dated 25 April 2007 the Commission applied to withdraw its application for an interpretation of the clauses of the Agreements.

As a result the matter was listed for special mention on 7 May 2007, along with three other unrelated disputes. The Commission confirmed its request to withdraw its initial application. The Union indicated to the Tribunal that it did not agree with the reasons put forward by the Commission in its letter dated 25 April 2007 in support of its request to withdraw the application for an interpretation of the Agreements. The parties indicated that they wanted to be heard on the matter. Furthermore, the Union indicated that it had been informed that there was a cabinet decision to the effect that the Partnership Agreement had been cancelled by the Interim Government. At that point the Tribunal directed that the Permanent Secretary for the Public Service should attend at the Tribunal on 23 May 2007 with a copy of the cabinet decision. The applications were also listed for oral submissions on 23 May 2007.

On 23 May 2007, for reasons which will be apparent from what follows, the Tribunal vacated the direction concerning the required attendance of the Permanent Secretary for the Public Service. The Tribunal also indicated that it had further considered the application made by the Commission for an interpretation of the two clauses in the Memorandum of Agreement dated 25 April 2006.

The Tribunal pointed out that the Commission’s letter dated 4 April 2007 did not specify which Award was the subject of its application. The Commission’s application only referred to two clauses in two Agreements.

It was also apparent to the Tribunal that the Commission’s application was not an application for an interpretation of Award No 52 of 2005 but rather was an application for an interpretation of two clauses in the Memorandum of Agreement dated 25 April 2006. This Agreement represented a post Award "out of court" settlement by the parties in respect of Award No 52 of 2007. The Agreement was not the Award. The Agreement set out, amongst other things, the parties’ resolution of the Union’s claim for COLA in its 2004 Log of Claims.

The Trade Disputes Act Cap 97 provides for two exceptions to the general principle of "functus officio". One of these is section 27 which gives a limited jurisdiction to the Tribunal to determine any question which arises as to the interpretation of any award. Section 27 (i) states:

"(i) If any question arises as to the interpretation of any award of a Tribunal, - - - any party to the Award may apply to the Tribunal for the determination of such question, and the Tribunal shall decide the matter either after hearing the parties, or without hearing the parties if it thinks fit".

The section makes it quite clear that jurisdiction is given to the Tribunal to entertain an application for the interpretation of an Award of a Tribunal. The Commission’s application is for the interpretation of two clauses in an Agreement which was not part of, nor incorporated into, Award No 52 of 2005.

Although Award No 30 of 2006 did incorporate clause B1 into its Award, that Award settled the claim for an increase in work-related allowances.

It appears that the current issue in dispute between the parties is concerned with the nature of a 4% interim payment under clause B1 (b) and whether it is to be treated as COLA increases, merit pay increase or a combination of both. This part of Clause B1 was neither expressly nor impliedly incorporated into Award No 30 of 2006.

For all of the above reasons the Tribunal granted the Commission’s request to withdraw its application for an interpretation of the clauses in the two Agreements. The Tribunal does not have any jurisdiction to determine the application which was ill-founded.

Finally, Mr Singh strenuously urged the Tribunal that he be allowed to be heard in respect of a letter from the Union dealing with an application which was still with the Permanent Secretary for Labour. The Tribunal declined to hear Mr Singh on the matter as his application had not been referred to the Tribunal and as a result the Tribunal had no jurisdiction in the matter.

DATED at Suva this 24 day of May 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL