Fiji Public Service Association v Fiji Institute of Technology [2008] FJAT 14; Award 14 of 2008 (28 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 14 OF 2008

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

RULING

In Award No 75 of 2007 dated 2 November 2007 the Tribunal settled a dispute between the 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.

By letter dated 26 November 2007 the Association applied for an interpretation of that Award pursuant to section 27 (i) of the Trade Disputes Act Cap 97.

The issue of interpretation raised by the Association in its letter concerned :

"- - - the impact of the Award on those salaried non-teaching employees who were not given the option to sign up either the individual contract or the collective agreement. Most of these affected employees have since joined the union and their raised concern is that they were not given the opportunity to choose their preferred choice of terms and conditions of employment when they were initially taken in by the Fiji Institute of Technology."

The application was listed for mention on 30 November 2007. On that day a schedule was settled for the filing of submissions.

Unfortunately neither party filed any submissions within the time fixed by the Tribunal. As a result the application was relisted for mention on 4 February 2008 and on that day a revised schedule was agreed upon.

The Association filed its submissions on 11 February 2008. The Employer filed answering submissions on 25 February and the Association filed a brief reply submission in a letter dated 28 February 2008.

The Tribunal is prepared to accept that the Association’s application is valid under section 27 (i) of the Act. It raises for interpretation the question whether pursuant to the Award the Employer was required to offer a choice of an individual contract or employment under the Collective Agreement to new employees "when they were initially taken in by the Fiji Institute of Technology".

The Tribunal’s position on this matter is quite simple. An employer is entitled to offer employment to a new employee on whatever terms and conditions it chooses to do so. An employee is entitled to accept the offer or make a counter offer. The Tribunal accepts that this is an artificial approach since realistically a potential employee is usually not in a particularly strong bargaining position.

A person seeking employment cannot be a member of the union until he has been taken on (or employed) by the Employer.

There is nothing in the Constitution or any other legislation which would prevent an employer from offering a potential employee an individual contract on terms and conditions that are mutually agreed upon.

When the employee has accepted his individual contract and has commenced employment, as a worker, he has the right to join the trade union (in this case the Association) under section 33 (1) of the Constitution. Under section 33 (2) employees who have become union members have the right to bargain collectively. However the right to organize and bargain collectively are rights which accrue to workers once they have commenced employment i.e. to workers. The right does not apply to the unemployed or those who have not commenced employment.

When an employee on an individual contract has joined a Union that is a party to a Collective Agreement, then the provisions of the Collective Agreement become an implied condition of the employee’s contract of service (see section 34 (7) of the Trade Disputes Act).

The Collective Agreement is not the contract of service but rather an implied condition of the contract of service.

As was stated in the Award, there is authority in Fiji for the proposition that only those provisions of the Collective Agreement which apply to the particular employee are incorporated into the contract of service as an implied condition. The Collective Agreement cannot alter the nature of the employee’s individual contract of service.

To some extent the above is a repetition of the Award. However in the process the Tribunal has clarified the issue raised by the Association in its letter dated 26 November 2007.

DATED at Suva this 28^th day of March 2008.

Mr. W.D. Calanchini
ARBITRATION TRIBUNAL