Fiji Public Service Association v Fiji Institute of Techonology [2007] FJAT 73; Award 75 of 2007 (2 November 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 75 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI PUBLIC SERVICE ASSOCIATION

AND

FIJI INSTITUTE OF TECHNOLOGY

FPSA: Mr N Tofinga
FIT: Mr V Maharaj

DECISION

This is a dispute between Fiji Public Service Association (the Association) and Fiji Institute of Technology (the Employer) concerning the Employer’s decision to employ salaried non-teaching staff on individual contracts.

A trade dispute was reported by the Association on 11 June 2007. The report was accepted on 12 June 2007 by the Acting Permanent Secretary who referred the Dispute to conciliation.

As the Dispute was not settled the parties agreed to refer the Dispute to Voluntary Arbitration. The Minister then authorized the Acting Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (i) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 14 June 2007 with the following terms of reference.

"The dispute is over the decision of the FIT Council to fill all vacant positions below management level under individual contracts. The Association maintains that the decision and the implementation of the said decision is in breach of the following provisions of Part 1, Section 1, 5, 7, 8 & 10 of the Collective Agreement in that the Council acted unilaterally in deciding to fill vacant positions by employing existing staff on an individual contract basis rather than in accordance with the existing conditions provided for in the Collective Agreement. The Association seeks an order to rescind Council’s decision, restore affected staff to the tenured status quo as per their existing terms and conditions of employment and for the council to comply with all of the aforesaid provisions of the Collective Agreement."

The Dispute was listed for a preliminary hearing on 20 June 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 13 July 2007.

The Association filed its preliminary submissions on 27 June and the Employer did so on 13 July 2007.

The parties were subsequently directed to file a signed Statement of Agreed Facts which they did on 24 July 2007. The parties were eventually in a position to present oral closing submissions on 23 October 2007.

This Dispute arose as a result of a letter dated 7 December 2006 from the Employer to the Association‘s General Secretary. Omitting formal parts, the letter stated:

"Please note that the Council has decided that all substantively vacant positions and newly created positions will be engaged on a 3 yearly contract and renewable subject to incumbents’ performance.

This decision will not affect all current substantive post holders whose tenured status is guaranteed based on satisfactory performance".

It is the decision set out in the first paragraph of the letter which the Association submitted was in breach of the Collective Agreement. The essence of the Dispute is the decision to offer individual contracts to successful applicants for substantively vacant positions or newly created positions contrary to the Collective Agreement.

The Collective Agreement was the Memorandum of Agreement dated 1 January 1997. This Agreement set out the terms and conditions of employment for salaried non-teaching staff.

The Agreement was entered into by the Association as a registered trade union for and on behalf of its members. The first preamble states that the agreement has been reached by the parties in relation to the terms and conditions of employment for all members of salaried non-teaching staff employed by the Employer.

In Part I of the Agreement the parties have set out the scope of the agreement in the following clauses:

"1. That the Council (the Employer) recognizes the Association as the representative of its members employed by the Council in matters of collective bargaining relating to the terms and conditions of employment of its members.

7. That should the Council or the Association at any time wish to bring to the notice of the other party to this Agreement a desire to alter any terms or conditions of the employment of the members, whether or not contained in this Agreement, both the Association and the Council shall enter into negotiations to determine such alteration by a process of collective bargaining.

8. That these terms and conditions of employment shall apply to all persons (hereinafter referred to as staff) of the FIT who are employed as non teaching established staff, other than the Director and Associate Director (Academic). The definition of staff being as specified in Section 1.0 of Part II of this Agreement. However, in matters relating to discipline, the Association may represent the Director and Associate Director (Academic) if they specifically agree to this.

10. That these terms and conditions of employment should be read in conjunction with relevant laws and regulations of the Government of Fiji, particularly the Fiji Institute of Technology Decree 1992 and subsequent amendments."

Section 34 (7) of the Trade Disputes Act states that the provisions of the Collective Agreement shall be an implied condition of the contract of service between every employee and employer to whom the agreement applies.

The Collective Agreement is the end result of the process known as collective bargaining.

The right of workers to organize and to bargain collectively is guaranteed by section 33 (2) of the Constitution. Collective bargaining is undertaken on behalf of organized workers by trade unions which have been granted recognition for that purpose pursuant to the provisions of the Trade Unions (Recognition) Act 1998.

Section 33 (1) of the Constitution also guarantees workers the right to form and join trade unions. However that right implies that workers also have the right not to join a trade union if they, for whatever reason, do not wish to do so. This right of being free not to join a trade union would also come under the umbrella of fair labour practices, a right which is guaranteed by section 33 (3) of the Constitution.

The Tribunal has concluded that for those salaried non-teaching employees who are members of the Association, the terms and conditions set out in the Collective Agreement are an implied condition of their contracts of service. As a result, the contract of service of an employee who is an Association member can only be varied if the Collective Agreement is varied.

The Collective Agreement may only be varied by the parties to it and in accordance with the procedures set out in the Agreement.

Therefore an employee who was an Association member, if selected to fill a substantively vacant position or a newly created position, must be appointed in accordance with the terms and conditions of the Collective Agreement which is also an implied condition of his or her contract of service. The Employer would be in breach of the Collective Agreement and acting contrary to both the letter and the spirit of the Trade Unions (Recognition) Act if it were to offer or attempt to employ an Association member on an individual contract, regardless of what its terms and conditions may be.

The breach is aggravated when the proposed individual contract contains a provision which has the effect of altering the status of the Association member.

The Collective Agreement, amongst other things, sets out the types of appointment which may be made. In summary an employee may be appointed on a permanent basis or may be appointed on a temporary basis. Those who are employed on a permanent basis may be employed full time, part time or pro-rata. Those who are employed on a temporary basis may be either full time or part time. However there is no provision in the Collective Agreement for employment on the basis of a three year contract whether it be on a full time, part time or pro rata basis.

The position in relation to a person who is not an Association member is different. Whilst the terms and conditions set out in the Collective Agreement may apply to an employee who is not an Association member, there is no obstacle to the Employer offering that employee an individual contract which may or may not include none, some or all of the provisions of the Collective Agreement.

As a result the Employer would be at liberty to offer an individual contract to an employer who was not an Association member and who had been selected to fill a substantively vacant position or a newly created position.

It is possible that an outsider (not an existing employee) may be selected to fill a substantively vacant position or a newly created position. Upon being selected, that person may already be a member of the Association from immediate past employment or may not be a member. If the new employee is already an Association member, then upon appointment, his/her contract of service will incorporate the Collective Agreement as an implied condition.

Under those circumstances an individual contract could not be offered to that employee.

If the new employee was not an Association member upon appointment, then the Employer may offer an individual contract on whatever terms and conditions it likes, including a 3 year contract. However if the new employee subsequently became an Association member, then the terms and conditions in the Collective Agreement which were relevant to the employee would become an implied conditions of his contract of service. However Association membership could not alter the nature of the contract of service. In other words Association membership could not change a three year contract into permanent employment (tenure).

This matter was discussed by Mr Justice Kermode in Director of Public Prosecutions –v- Gyanendra Naveen Prakash Singh and Others (1977) 23 23 FLR 135. The Court indicated that the terms and conditions of the Collective Agreement were incorporated in the employee’s contract of service in so far as they were applicable to the employee’s position. The Collective Agreement itself is not the contract of service.

AWARD

The Employer cannot offer individual contracts to salaried non-teaching staff who are Association members in the event that such an employee is selected to fill a substantively vacant position or a newly created position.

The Employer may offer individual contracts to existing or new employees who are not Association members and who have been selected to fill substantively vacant positions or newly created positions.

The Employer is obliged to enter into the collective bargaining process with the Association whenever it seeks to vary the Collective Agreement.

DATED at Suva this 2 day of November 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL