Mine Workers Union of Fiji v Emperor Gold Mining Company [2007] FJAT 55; Award 57 of 2007 (9 August 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 57 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

MINE WORKERS UNION OF FIJI

AND

EMPEROR GOLD MINING COMPANY

MWUF: No Appearance
E G M: Mr J Mangal

DECISION

This is a dispute between Mine Workers Union of Fiji (the Union) and Emperor Gold Mining Company (the Employer) concerning the dismissal of 35 employees (the Grievors).

A trade dispute was reported by the Union on 28 October 2005. The report was accepted on 30 December 2005 by the Chief Executive Officer who referred the Dispute to a Disputes Committee.

As the Union failed to nominate a representative to the Committee 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 21 February 2006 with the following terms of reference:

"- - - for settlement over the termination of employment of (35 named employees) with effect from 29 September 2005. Your union therefore seeks that the Company re-negotiate clause 6 and 7 of the"ME CAKA" 7/2 Agreement without delay and seeks that all its members who were terminated after the signing this agreement be re-instated without loss of any benefits."

The Dispute was listed for a preliminary hearing on 24 February 2006. On that day the parties were directed to file preliminary submissions within 28 days and the Dispute was listed for mention on 28 April 2006.

The Union filed its preliminary submissions on 25 April 2006.

On 28 April 2006 the Employer was granted an extension of 28 days to file its preliminary submissions and the Dispute was relisted for mention on 26 May 2006. On that day a further 14 days was granted to the Employer to file its submissions and the Dispute was again listed for mention on 23 June 2006.

The Employer filed its preliminary submissions on 22 June 2006.

At the request of the parties the Dispute was relisted for mention on 28 July, 24 November 2006, 19 January, 23 February and 23 March 2007. The reason for the delay in proceeding with the Dispute was that the parties had agreed in effect that the present Dispute would be settled in accordance with the Award in Dispute No 11 of 2006 involving the same parties and the interpretation of certain clauses in what was known as the ‘ME CAKA" Agreement.

In order to allow the parties further opportunity to consider the position following the Tribunal’s Award No 66 of 2006 which had settled Dispute No 11 of 2006, the Tribunal again listed the Dispute for mention on 27 April, 25 May and 29 June 2007. Unfortunately on all the mention dates to which reference has been made, since June 2006, there has been an appearance entered by only one or other of the parties on every occasion.

As there was no appearance by either party on 29 June, the Tribunal directed that the Dispute be listed for special mention on 6 July and then by agreement on 13 July 2007. On that date there was again no appearance by either party.

The Tribunal directed the parties to appear on 26 July 2007. On that date directions were given for both parties to appear before the Tribunal on 31 July 2007, in default of which an Award would be made to settle the Dispute against the defaulting party. The Tribunal gave directions for service of the notice of the mention date on the Union by the Employer and by the Tribunal Secretariat.

When the Dispute was called on 31 July 2007, there was again no appearance by the Union. It was clear to the Tribunal that the Employer through its legal practitioners had not complied with the Tribunal’s directions as to service on the Union. There was no satisfactory explanation provided for the Employer’s non-compliance.

Fortunately the Tribunal Secretariat had complied with the directions given.

As a result the Tribunal is satisfied that notice of the hearing date and the consequences of non-attendance were made known to the Union by letter dated 26 July 2007 which was served by the Ba Labour Officer on the wife of the Union’s General Secretary at his residence on 27 July 2007.

As a result the Tribunal has directed that the Dispute be treated as having been withdrawn and the proceedings discontinued due to the failure of the Union to appear to pursue the grievance on behalf of the Grievors.

AWARD

The Dispute is withdrawn and the proceedings discontinued.

DATED at Suva this 9 day of August 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL