PAFCO Employees Union v Pacific Fishing Company Ltd [2007] FJAT 79; Award 81 of 2007 (6 December 2007)

THE REPUBLIC OF THE FIJI ISLANDS

NO 81 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 an alleged breach of clause 13 of the Collective Agreement.

A trade dispute was reported by the Union on 26 February 2007. The report was accepted on 19 April 2007 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 5 A (5) (a) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 3 August 2007 with the following terms of reference:

"- - - over the Company’s failure to follow clause 13 (i) (ii) (iii) of the collective agreement by not paying union officials and several witnesses their dues including transportation, meals and accommodation namely for Abele Vasi, Kitione Navauregarega, Manasa Nete, Ropate Naiseruvati, Marika Toka, Vani Kivi, Manasa Mise, Kuliniasi, Lote Raturaga, Luke Taleca, Tomasi Tokalauvere for all number of days they attended the Arbitration and Disputes Committee hearings. The union claims that the Company’s action as bias, unfair, unlawful and unconstitutional and seeks that all dues be paid within a week".

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 2007 and the Dispute was listed for mention on 24 August 2007.

On that day the parties were granted an extension to file submissions by 29 August 2007. The parties did file their submissions on 30 August 2007. The parties subsequently filed a signed Statement of Agreed Facts dated 4 October 2007 and presented oral closing submissions on 27 November 2007.

In the signed Statement of Agreed Facts the parties have set out their respective positions in relation to the Dispute. In paragraph 3 the Union’s position is stated as follows:

"The Employer is required to meet the expenses of the Union Officials including the General Secretary and the President who are not employees of the Employer and other witnesses who are not the officials of the Union but employees of the Employer who were called by the Union to give evidence in the Arbitration hearing."

In paragraph 4 the Employer’s position is clearly set out:

"The Employer is required to meet the expenses for the Union officials only who are employed by the Employer and who were called by the Union to give evidence in the Arbitration hearing but does not include the General Secretary and the President of the Union as they are not employed by the Employer."

The issue arose as a result of the attendance before the Tribunal of union officials and union members either as advocates or witnesses in disputes against the Employer. The Union members who appeared as witnesses in those Disputes were obviously employees, otherwise they would not have been members of the Union. However some of the Union officials who appeared as either advocates or witnesses or even both were not employees at the time.

The Collective Agreement was admitted by consent into evidence as an exhibit. Clause 13 (iii) states:

"Where the Company and the Union agree to meet on matters affecting the employment and conditions of employment of workers, the Union Officials attending such meeting shall not suffer any loss of pay or benefit when attending to such meetings, including Arbitration Tribunals, Trade Disputes Committees etc."

The terms of reference requires the Tribunal to determine the scope of clause 13 (iii) of the Agreement. In particular there are two issues raised in the Reference. First, does clause 13 (iii) extend to Union Officials who are not employees. Secondly does clause 13 (iii) extend to employees who attend as witnesses.

The wording of clause 13 (iii) is awkward to say the least. On a first reading it would appear that there is a condition precedent for the payment of wages and benefits to union officials attending meetings. The condition precedent is that the Company and the Union have agreed to meet on matters affecting the employment and conditions of employment. If there is such an agreement then Union Officials attending such meetings should not suffer any loss of pay or benefits.

The problem arises at the end of the clause where the words "including Arbitration Tribunals and Trade Disputes Committees etc." appear.

Under section 5A (1) of the Trade Disputes Act, a dispute of rights (being a dispute, inter alia, concerning the interpretation, application or operation of a collective agreement) is required to be referred to a Disputes Committee (rather than conciliation) after the Permanent Secretary has performed the functions prescribed by section 4 of the Act. It is not a question of the parties agreeing to meet at the Disputes Committee.

Furthermore there are mandatory provisions for the referral of such a Dispute to the Arbitration Tribunal for settling the Dispute. Once again, it is not a question of the parties agreeing to appear before the Tribunal in the case of a dispute of rights.

As a result, the Tribunal has concluded that the benefit which is afforded to Union Officials who by agreement with the Employer meet on matters affecting employment and conditions of employment is also extended to Union Officials who are required to attend at Tribunal hearings and Dispute Committee hearings. This is the only common sense meaning which can be given to the Clause.

The question then is whether the protection afforded by clause 13 (iii) applied to Union Officials who were not employed by the Employer at the time.

The Tribunal is satisfied that the clause has no application to union officials who were not employed by the Employer. There are two reasons for this conclusion.

First, pursuant to the recognition clause, the union (and hence its officials) are recognized as the sole representative and the agent for purposes of collective bargaining in regards to the terms and conditions of employment of its members. The Collective Agreement is the end result of the collective bargaining process. The collective agreement sets out the agreed terms and conditions of employment of union members employed by the Employer. Those Union Officials who are not employed by the Employer are not covered by the agreement and therefore are not entitled to any of the benefits under the Agreement, unless there are clear words to the contrary.

Further section 34 (7) of the Trade Disputes Act provides that the provisions of the Collective Agreement are an implied condition of contract between every employee and employer to whom the Agreement applies. As the agreement does not apply to Union Officials who are not employees of the Employer, it does not form part their contract of service.

Secondly those union officials who are not employed by the Employer do however have a contract of service with the corporate entity of the Union.

No doubt each contract of service in respect of the Union officials concerned sets out the duties and functions of their position either expressly or by implication. In attending at Tribunal hearings and Disputes Committee hearings those union officials are no doubt performing functions which are within the scope of their duties or functions and as such are paid to attend at those hearings. There is no loss of pay or benefit when attending such hearings.

As for witnesses, the clause does not refer to witnesses attending Tribunal hearings or Dispute Committee hearings. However attendance at Tribunal hearings for persons who are required to give evidence (either as the Grievor or as a witness – for either party) may be compelled by a summons to witness (a subpoena). As a result it would clearly not be appropriate for an employee to suffer any loss of pay or benefit as a result of being required to attend at a Tribunal hearing either as a grievor or as witness.

It would be a blatant form of discrimination for the Employer to have paid workers who attend at the Tribunal to give evidence on behalf of the Employer and yet failed or refused to pay workers who attended at the Tribunal hearing to give evidence either as a grievor or as a witness on behalf of the Union. Such conduct is contrary to the Bill of Rights provisions of the Constitution and violates labour standards set out in various conventions of the International Labour Organization.

AWARD

Clause 13 (iii) applied only to those Union Officials who were employed by the Employer at the relevant time of the hearing before the Arbitration Tribunal or the Disputes Committee.

All those workers who were employed by the Employer at the time they appeared at a hearing before the Disputes Committee or the Arbitration Tribunal as a witness should be paid their normal wages and should not suffer any loss of benefits as a result of such attendance.

DATED at Suva this 6 day of December 2007.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL