PAFCO Employees Union v Pacific Fishing Company Ltd [2007] FJAT 76; Award 78 of 2007 (3 December 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 78 OF 2007

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

PAFCO EMPLOYEES UNION

AND

PACIFIC FISHING COMPANY LIMITED

PAFCOEU: Mr T Tokalauvere
PAFCO: Mr G Singh

DECISION

This is a dispute between PAFCO Employees Union (the Union) and Pacific Fishing Company Limited (the Employer) concerning the laying off of 16 union members (the Grievors).

A trade dispute was reported by the Union. The report was accepted by the Permanent Secretary who referred the Dispute to a Disputes Committee.

Subsequently the Minister authorized the Permanent Secretary 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 9 August 2007 with the following terms of reference :

"- - - for settlement over the laying-off of the following sixteen (16) union members who are diagnosed with High Blood Pressure and Obesity which the union claims is unfair and unlawful and is in breach of section 1 (a) section 11 of their Collective Agreement".

[The names of the 16 Grievors were listed]

The Dispute was listed for a preliminary hearing on 14 August 2007. On that day the parties were directed to file preliminary submissions by 23 August and the Dispute was listed for mention on 24 August 2007.

The parties were subsequently granted an extension of time to file their submissions by 29 August 2007. Both parties filed their preliminary submissions on 30 August 2007.

The hearing of the Dispute took place on 5 November 2007 in Suva. The Union called one witness to give evidence and the Employer called two witnesses. At the conclusion of the evidence the parties presented oral closing submissions.

At the commencement of the hearing a signed statement of agreed facts was filed.

With the consent of both parties, the Tribunal made certain amendments to the statement. The settled version of the signed Statement of Agreed Facts dated 5 November 2007 stated:

"The PAFCO Employees Union (Union) and Pacific Fishing Company Limited (Employer) agree as follows:

(a) That towards the end of 2006 between September to December all workers of the Employer underwent a medical check-up.

(b) That Dr K Buinimasi of Levuka Hospital conducted the medical check-ups.

(c) That the parties agree that the medical check-ups were made in accordance with the provisions of section 40 (1) and (2) of the Public Health Act Cap 111.

(d) That the cost of the medical check-ups was paid for by the Employer.

(e) That the medical reports were received by the Employer at least two months after the check-ups were conducted and then given to the workers concerned directly by the Employer.

(f) That the Collective Agreement which came into effect from 12 July 2001 be admitted as an exhibit.

(g) That the medical reports of the sixteen workers listed in the terms of reference be admitted as an exhibit".

The evidence on behalf of the Union was that employees were arranged in groups of five or so to be examined as part of an annual medical check-up. Ms Lowata Vulaca gave evidence which represented the position so far as all 16 Grievors were concerned. Ms Vulaca stated that the check-up in October 2006 was the first time in 31 years that had revealed a problem in her health.

She was diagnosed with high blood pressure and obesity. She was not prescribed medication but was given some advice about lifestyle changes.

The witness stated that following the medical check-up she continued to work normally until January 2007 when she was informed by letter dated 19 January 2007 from the Employer that on medical grounds she was to be released from work. She was initially told that she would be released for six months. The letter stated :

"We have received your medical report from Dr Kale Buinimasi and a copy is herewith attached.

The report has informed the company that you are to be released from work for six (6) months due to your health.

It is for your best interest that you be released before more complications develop".

However she was told to report to the Levuka Hospital on 23 February 2007 for a review. She was assessed as being fit for work and returned to employment with the Employer on 26 February 2007. During her time off work she was on sick leave without pay.

The witness stated that at no time did she sign any authorization for the release of a medical report to a third party.

She had received a copy of the medical report dated 18 January 2007 with the letter dated 19 January 2007 from the Employer. The medical report stated:

"To Whom It May Concern

Name: Lowata Vulaca

DOB: 05/09/1950

Address: Draiba Village

This is to inform your office that the above mentioned be excused from work for six (6) months.

This is due to the presence of very High Blood Pressure and Obesity that were noted during the medical check at your factory. She has been advised on the above illness for prevention of development of complication.

She needs urgent weight reduction and control of Blood Pressure. The latter needs to be followed up closely at a medical center. Your support of care of this patient will help in the total management of this patient.

For your information of urgent action.

Yours faithfully

Dr K Buinimasi

Levuka Hospital

cc: Personal File

Union Copy"

The examining doctor (Dr Kaleli Buinimasi) stated that she was the only medical practitioner at the Levuka Hospital in 2006. Over a period of time in late 2006 she medically examined approximately 700 employees at the request of the Employer. The delay in submitting the reports to the Employer was due to her workload and awaiting results of blood tests of all the employees.

The Doctor stated that about 50 of the 700 or so employees were found to be unfit to continue employment. In relation to those suffering from high blood pressure and/or obesity, the Doctor stated that in her opinion there was a risk of complications if left untreated or ignored and also by continuing in employment.

The Doctor stated that when she examined employees in October 2006 she requested those diagnosed with high blood pressure and obesity to report to the hospital for reviews. It would appear that between October 2006 and January 2007 very few employees attended for reviews. It was only after the letters were received in January by affected employees that the number reporting for reviews substantially increased.

The Doctor completed a proforma which was used for routine medical examinations at the Levuka Hospital. A proforma was completed for each employee. The form did not contain an authorization for the information to be released to the Employer.

The Employer’s last witness was the Senior Personnel Officer (Ms L Tamanitoakula). She said that the Employer was required to ensure that it complied with the Public Health Act and that was the reason for the annual medical check-ups.

She confirmed that the Employer received a medical report in respect of all employees who were examined.

She stated that she had not received any complaints nor was she aware of any complaints from employees concerning the medical check-up in 2006 nor in any other year before that. She also stated that as far as she knew the Employer had not received any representation from the Union concerning these annual medical check-ups.

Section 40 of the Public Health Act Cap 111 deals with the protection of food from contamination. It appears in Part IV of the Act which deals with premises used for the production, manufacture, preparation, storage, distribution, sale or consumption of food.

Section 40 (2) states :

"No person who is suffering from any infections or contagious disease, skin eruption, consumption (phithisis) or any loathsome or venereal disease or who is a proved carrier of any infectious disease or who is wearing unclear or medicated bandages, shall engage in the manufacture, preparation, storage, packing, carriage or delivery for sale of any food."

The Tribunal is satisfied that the Employer’s decision to arrange for annual medical check-ups was a necessary and reasonable response to the prohibitions set out in section 40 (2). This is a clear legislative requirement and justified the Employer’s decision for its employees to be medically examined. As the Employer was engaged in the canned and fresh tuna industry, its business clearly came within the scope of section 40 (2). It therefore had a legal obligation to ensure that its employees did not suffer from any of the conditions set out in the section.

The Tribunal does not consider it unreasonable for the Employer to accept the recommendations of the examining doctor in respect of the state of health of any of its employees. To have disregarded the contents of the reports would have left the Employer with the risk of civil liability in the event that preventable harm or illness subsequently occurred to any of its employees.

Under the circumstances the Tribunal does not consider that the Employer had acted unreasonably by informing the affected employees by letter in January 2007. The delay between the time when the check-ups were conducted in October 2006 and the time in January when the affected employees were advised by the Employer that they were to be released from work was adequately explained by the Doctor.

The Tribunal has noted that the Union had not in the past or even before the 16 employees were released from work complained to the Employer about the requirement for the employees to undergo medical checkups by an independent medical practitioner. Whilst there may be some reservations about the requirement to be examined by a doctor who was not of an employee’s choosing, it must be noted that there were no objections ever expressed by the employees or the Union.

Furthermore in the context of the medical facilities available on Ovalau, it was not unreasonable for the Employer to arrange for the medical check-ups to be carried out by the one doctor posted to the local hospital.

The Employer requested the doctor to provide a medical report in respect of each of its employees following the check-up. The Employer paid a fee for the check-ups and the reports. Under those circumstances there was no breach of privacy or confidentiality when the Doctor forwarded her reports to the Employer. The Employer forwarded a copy of the report to the affected employees to indicate that there was a basis for the decision to release or lay-off each employee for a specified time.

There would have been no point in arranging the check-ups if the results were to be conveyed only to the Grievors and denied to the Employer.

The issue of confidentiality between patient and doctor was put forward by the Union in support of its contention that the Employer had acted unreasonably.

The issue raises an interesting point but so far as this Tribunal is concerned can be readily dealt with.

Pursuant to section 31 of the Trade Disputes Act the Tribunal is not bound by the rules of evidence in civil proceedings. Whatever may be the effect of the provisions of the Civil Evidence Act 2002, it has no application to the Tribunal’s proceedings for the very reason that the strict rules of evidence do not apply (section 2).

In any event, communications between doctors and their patients do not attract privilege. (See Cross on Evidence – Seventh Australian Edition at para. 25325). As a result the general principle applied by the Tribunal is that if the material is relevant and proper then there is no real reason why any discretion should be exercised to refuse its admission into evidence. The fact that communication between a doctor and a patient may be considered to be subject to some ethical confidence is not a sufficient reason for exercising such a discretion.

It should also be noted that in this Dispute the relationship of doctor and patient did not strictly exist. The check-ups were in reality a requirement under legislation and were performed by an independent medical practitioner at the request of and paid for by the Employer.

To the extent that any of the sixteen affected employees had any sick leave entitlement, that entitlement should have been paid until exhausted during the time each employee was absent due to the Doctor’s reports.

Finally, clause 1 (a) of the Collective Agreement deals with recognition of the Union by the Employer. The Tribunal is satisfied that the Union knew or ought to have known that the Employer had arranged medical check-ups for its employees each year since 2001 in compliance with section 40 (2) of the Public Health Act. At no time has the Union made any representation to the Employer concerning this matter. The requirement to ensure that its employees meet the requisite health standards is a requirement imposed by law and as a result either falls outside the scope of collective bargaining or cannot be modified by the Collective Agreement. It would always be open to the Union to identify and propose any alternative method by which compliance with section 40 (2) could be achieved.

The Tribunal does not consider that clause 11 of the Collective Agreement dealing with changes to terms and conditions of employment has any application to the present Dispute.

AWARD

The decision by the Employer to lay-off (release) sixteen union members who were diagnosed with high blood pressure and/or obesity was not unfair or unlawful. There was no breach of clause 1 (a) or 11 of the Collective Agreement.

The decisions were taken as a result of medical reports received by the Employer following medical check-ups conducted by an independent medical practitioner at the request of the Employer and in order to comply with section 40 (2) of the Public Health Act.

Sick leave entitlements are to be paid to the employees concerned.

DATED at Suva this 3 day of December 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL