Fiji Public Service Association v Fiji Institute of Technology [2007] FJAT 39; Award 41 of 2007 (5 July 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 41 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

FIJI INSTITUTE OF TECHNOLOGY

FPSA: Mr N Tofinga
F I T: Mr A Malani

DECISION

This is a dispute between the Fiji Public Service Association (the Association) and the Fiji Institute of Technology (FIT) concerning issues arising from the Association’s Log of Claims 2004.

A trade dispute was initially reported by the Association on 28 September 2004. Having obtained clarification from the Association concerning the quantum of the Association’s claim, the Chief Executive Officer accepted the report on 5 November 2004.

The Dispute was referred to conciliation, which commenced on 17 November 2004. For reasons best known to the parties, an agreement to refer the Dispute to voluntary arbitration was not signed until 26 July 2006. As a result, the Minister then authorized the Chief Executive Officer to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 8 August 2006 with the following terms of reference:

"- - - over the refusal of the FIT to negotiate and conclude the Association’s Log of Claims 2004 which are as follows:

(i) All salary scales and salary grades in all occupational classes and grades represented by the Association shall be increased by 12% with effect from 01/01/04; and that,

(ii) All work related allowances for all occupational classes and grades represented by the Association shall be increased by 15% with effect from 01/01/04."

The Dispute was listed for a preliminary hearing on 1 September 2006. At the request of the parties the Dispute was then listed for mention on 29 September 2006. On that day the Tribunal gave directions for the disclosure of documents. The Tribunal also directed that the parties file their preliminary submissions within 21 days and the Dispute was listed for further mention on 27 October 2006.

The Association filed its preliminary submissions on 17 October 2006.

FIT was granted an extension of seven days to file its preliminary submissions. The Dispute was relisted for mention on 24 November 2006.

FIT filed its preliminary submissions on 1 November 2006.

The hearing of the Dispute took place on 30 and 31 January 2007 in Suva. During the hearing the Association called one witness and FIT called two witnesses to give evidence. At the conclusion of the evidence the parties sought and were granted leave to file final written submissions.

The Association filed its final submissions on 12 April 2007. FIT filed its answering submissions on 30 May 2007 and the Association filed a reply submission on 27 June 2007.

At the outset it should be noted that by an amended terms of reference dated 7 September 2006, the quantum of the Association’s claim in paragraph (i) of the initial terms of reference was reduced from 12% to 5% and was in effect a claim for a cost of living adjustment (COLA).

At the commencement of the hearing the parties advised the Tribunal that the claim set out in paragraph (ii) of the terms of reference was withdrawn by consent.

The Association also confirmed that the claim in paragraph (i) was a claim for COLA and was to be amended down to read 4.2% which the Association claimed was the CPI figure for 2003.

Therefore, the only question which remained for determination was whether a 4.2% COLA increase backdated to 1 January 2004 should be paid to all grades represented by the Association.

The Tribunal is required to determine this remaining issue by considering the evidence given at the hearing. It has to be said that the evidence was limited in its nature and its scope.

In their final submissions the parties, in particular FIT, have sought to rely upon material which did not form part of the evidence. In the absence of an agreement between the parties the Tribunal cannot attach any weight to material which was not brought in as evidence during the course of the hearing.

Clause 7.1 of the Collective Agreement states :

"In reviewing salaries, due regard will be given to the following factors:

a) recruitment and retention;

b) the productivity and/or workload of staff covered by this document;

c) any movement in the consumer price index;

d) the financial situation of the Institute;

e) external and internal relativities; and,

f) established priorities of the Institute.

The effect of this clause is that whenever salaries are to be reviewed there are a number of factors to be considered, including the consumer price index (CPI). However the clause does not guarantee a wage increase equivalent to the percentage increase of the CPI. Furthermore, the Tribunal is satisfied that the review is a process whereby both the Association and representatives of FIT are to come together and negotiate the review based on the factors listed in the clause. This is to some extend confirmed by clause 6.1 of the Agreement which states :

"Salary scales are determined by the Council from time to time on the basis of an evaluation of the various occupational categories and after negotiation with the Association. At the introduction of these terms and conditions of employment the scales shall be as specified in Schedule 1 to this Agreement" (underline per Tribunal).

Turning to the evidence, the Tribunal is satisfied that the CPI for 2003 was 4.2%. In keeping with what has become the accepted practice that figure then represents the starting point for any claim for COLA for 2004.

The Tribunal also accepts that FIT had paid to 100% of its employees a 3% incremental increase in salaries on 1 January 2005 and a 2% bonus to 80% of its employees also on 1 January 2005. It would appear that sometime either in 2004 or 2005 there were increases across the board as a result of a Job Evaluation Exercise.

Clause 7(i) of the Collective Agreement means that any salary review involves a balancing exercise taking into account the factors (a) to (f) listed in the clause.

The language of clause 7 leads to the conclusion that any movement in the CPI is a factor to be considered when salaries are being reviewed. As a result the clause means that the CPI is to be considered in relation to salary reviews and not for determining whether a one-off bonus should be paid. Although it was acknowledged that an amount for a COLA payment had been included in the 2004 FIT budget, the Tribunal accepts that one of the factors
to be considered in reviewing wages is the established priorities of the Institute.

Clause 7.1 of the Agreement also requires consideration to be given to such factors as the financial position and internal relativities. The Tribunal has accepted the evidence given on behalf of FIT concerning all these matters.

Taking into account all the evidence and having considered the relevant submissions the Tribunal has concluded that a figure of 2% is appropriate for the Association’s COLA claim.

AWARD

The Tribunal awards 2% salary increase by way of COLA to all occupational classes and grades represented by the Association.

DATED at Suva this 5 day of July 2007

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL