Transport Workers Union v Mobil Oil Fiji Ltd [2008] FJAT 15; Award 15 of 2008 (28 March 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 15 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

TRANSPORT WORKERS UNION

AND

MOBIL OIL FIJI LIMITED

TWU: Mr K Kumar
Mobil: Mr H Lateef

DECISION

This is a dispute between the Transport Workers Union (the Union) and Mobil Oil Fiji Limited (the Employer) concerning the Employer’s failure to negotiate and conclude an interim agreement.

A trade dispute was reported by the Union on 25 January 2006.

The report was accepted by the Chief Executive Officer who referred the Dispute to conciliation.

As the conciliation proceedings were deadlocked the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (2) (b) 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:

"- - - for settlement over the employer’s failure to negotiate and conclude an interim agreement which the Union claims is a breach of paragraph 4 of the Compulsory Recognition (No 4) Order of 2005."

The Dispute was listed for a preliminary hearing on 24 August 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 21 September 2007,

The Employer filed its preliminary submissions on 13 September and the Union did so on 14 September 2007.

The parties were then directed to file a signed Statement Agreed Facts by 5 October and the Dispute was listed for further mention on 19 October 2007.

The parties filed a signed Statement of Agreed on 16 November 2007.

On 30 November 2007 the parties informed to the Tribunal that they did not require a hearing to call any further evidence. The parties indicated that they wanted an opportunity to address the Tribunal on the signed Statement of Agreed Facts.

The parties appeared before the Tribunal to present oral closing submissions on 4 February 2008. During the course of the proceedings the Employer applied for an adjournment. The reason for the application was to enable the Employer to obtain instructions and to clarify its position in relation to the future conduct of the dispute.

The Union did not oppose the application. The Tribunal granted the application and the further hearing of submissions was adjourned part heard to 3 March 2008. On that day the parties concluded their submissions.

It is appropriate for the complete signed Statement of Agreed Facts to be reproduced in this Award as it provides a detailed background to this Dispute together with the agreed facts which formed the bases of the Dispute. The signed Statement is as follows :

"1. In the early 2002 the employees of the company joined the Union (formerly known as Fiji Aviation Workers association "FAWA"). They were previously members of Transport and Oil Workers Union.

2. Following the membership recruitment the Union wrote to the Company and the Company agreed to provide check-off facility, (deductions of members Union fees from payroll) in the similar manner it did with the previous Union.

3. On the 13th June 2003 the Union wrote to the Company seeking to formalize the recognition of this Union.

4. The Union sent a follow up letter on the 5th August 2003.

5. As the Union did not receive any response from the Company, it again wrote on 18 August 2003.

6. Together with the letter dated 18th August 2003 the union forwarded the Company a draft interim agreement.

7. On the 8th October 2003 the Union wrote a follow up letter to the Company to seek a response to the same.

8. On the 14th January 2004 a meeting between the Company and Union was held. The Company was represented by it’s then General Manager Mr Kamal Singh and the Union was represented by it’s then General Secretary Mr Attar Singh. During the meeting the General Manager undertook to revert within two weeks as contained in the letter the Union wrote on 16th February 2004.

9. The Company responded to the letter dated 16th February 2004 on 19th February 2004 advising that their legal department was reviewing the draft memorandum of agreement.

10. On the 22nd September 2004 and the 5th November 2004 the Union again wrote follow up letters to the Company.

11. The Union on the 19th November 2004 wrote to the then Acting Chief Executive Officer of the Ministry of Labour, Industrial Relations and Productivity to intervene and issue a Compulsory Recognition Order.

12. On the 30th August 2005 Compulsory Recognition (No 4) Order 2005 was issued.

13. Following the receipt of the Compulsory Recognition Order the Union forwarded to the Company a memorandum of agreement via its letter of 8th September 2005.

14. On the 4th November 2005 and 13th December 2005 the Union wrote follow up letters to the Company.

15. Following no response from the Company the Union on the 25th January 2006 wrote to the then Chief Executive Officer of the Ministry of Labour, Industrial Relations and Productivity reporting the existence of a trade dispute. The Company was delivered a copy of the report on the same day as is the requirement.

16. On the 15th February 2006 the Chief Executive Officer wrote to the Union advising it of its acceptance of the report of the trade dispute. The company was copied in the correspondence.

17. In February 2006 Mobil filed a Summons to apply for leave to issue a Judicial Review against the decision of the Ministry but this was refused by the High Court in that the application should have been within the time limit set out in the Order 53 Rule 4 (2).

18. On the 2nd March 2006 the Conciliator appointed by the Chief Executive Officer of the Ministry of Labour, Industrial Relations and Productivity wrote to both the Union and the Company to attend a conciliation meeting on 10th March 2006.

19. The Company through their solicitors wrote to the conciliator on 7th March 2006 that they would not attend the conciliation meeting due to the fact that the matter was before the court and that the dispute was therefore subjudice and therefore any meetings would take place after the decision of the High Court.

20. The Union wrote on the 9th March 2006 to the Conciliator that the conciliation meeting should proceed. The Union again wrote to the Chief Executive Officer of the Ministry of Labour, Industrial Relations and Productivity on the 25th May 2006. The Chief Executive Officer in his response on 6th June 2006 advised that the dispute will be held in abeyance until the outcome of the matter in Court.

21. The Union again wrote to the Chief Executive Officer on the 16th June 2006. The Union’s attempts to persuade the Chief Executive Officer to call the conciliation meeting was not successful, it was left with no option but to await the outcome of the decision of the Court.

22. Notwithstanding the High Court decision, Mobil’s solicitors wrote to the Ministry on 20th October 2006 pointing out its interpretation of Clause 15 of the Constitution of the Union and requested the Ministry to reconsider its decision in light of section 10 of the Trade Union (Recognition) Act 1998.

23. A conciliation meeting was listed for 24th October 2006 and representatives from Mobil were present. At the request of the conciliator the Mobil representatives left the room and the parties had some discussion. Mobil though insisted that it should continue to challenge the validity of the compulsory recognition order. On the 9th November 2006 a letter to this effect was written to the Ministry.

24. On receiving no response Mobil’s solicitors followed this up with 2 other letters dated 17th November 2006 and 5th December 2006.

25. The Ministry eventually replied on the 18th December 2006 that it was in the process of obtaining legal advise and would revert to Mobil’s solicitors towards the end of January 2007."

Paragraph 4 of the Compulsory Recognition (No 4) Order dated 30 August 2005 stated:

"The employer must accord recognition to the union for the purpose of collective bargaining and, without affecting the general nature of paragraph 3, must when requested to do so by the union negotiate with the union on any specific matter relating to terms and conditions of employment of any person who is a voting member of the Union."

The Union submitted that its members have waited patiently for a long time to have the Union/Employer relationship formalized by the execution of a memorandum of agreement. The Union also submitted that the Employer has used every possible means to delay formalising an agreement. The Union relied upon the many unanswered letters sent by it to the Employer on the matter. The Union pointed to the failure of the Employer to honour a commitment given in its only written response to the Union. The Union also pointed to the Employer’s unwillingness to participate in the conciliation proceedings as being indicative of intentional delay.

The Employer’s submissions addressed two principal issues. The first was the validity of the Compulsory Recognition Order and the second was the acceptance by the Permanent Secretary of a report of a trade dispute and its subsequent reference to the Arbitration Tribunal on 3 August 2007. The Employer did not specifically address the issues raised by the terms of reference.

During the course of his closing submissions, Counsel for the Employer confirmed that the Employer’s position was that the Tribunal should examine the validity of both the Compulsory Recognition Order and the reference to the Tribunal.

The position of the Tribunal on this type of submission has been stated many times. In essence it is that the Tribunal has no jurisdiction to examine the decision – making process which resulted in a trade dispute being referred to the Tribunal. Neither the Trade Disputes Act itself nor the reference from the Permanent Secretary in respect of this dispute bestows any jurisdiction to review or even examine the validity or legality of the reference.

In Fiji Electricity Authority Staff Association –v- Fiji Electricity Authority (Award No 24 of 1998 dated 23 December 1998) the then Permanent Arbitrator (J Apted) at page 6 observed:

"Under the Trade Disputes Act each separate trade dispute comes to the Tribunal by virtue of a reference from the Permanent Secretary for Labour and Industrial Relations. The terms of that reference prescribe the jurisdiction of the Tribunal to determine the facts and relevant law and to make an Award.

Under the Act, a union may report what it considers to be a trade dispute to the Permanent Secretary for Labour and Industrial Relations.

Subject to the provisions of the Act and the law generally, the Permanent Secretary is given a discretion whether to accept the report, and, also, in specified circumstances, to refer the dispute to the Tribunal for settlement. Before he can exercise his discretions in those ways, he must be satisfied that a "trade dispute" as defined in the Act, exists and that the union is competent to prosecute the underlying grievance.

In the exercise of these powers, he is subject to the supervision of the courts of law. If a party takes issue with his decision, the party should immediately seek the assistance of the court through judicial review of the Permanent Secretary’s decision. If the Permanent Secretary has exercised his discretion improperly, it is the court’s function to over-rule him, not the Tribunal’s.

The Tribunal, of course, has jurisdiction to decide on its own "jurisdiction" and will do so, if this is an issue before it. However, this will usually be exercised in relation to whether some matter falls within its terms of reference. But where the challenge is made in respect of what effectively are conditions precedent to the Tribunal having jurisdiction and which involve the exercise of a discretion by another decision–maker of co-ordinate standing, the Tribunal considers that the matter will usually be best resolved in a court of law."

As a result, unless and until the High Court indicates otherwise, the Tribunal assumes that the reference is regular and valid. As Permanent Arbitrator Semisi in Fiji Public Service Association –v- Airport Fiji Limited (Award No 24 of 2001 dated 30 August 2001) noted t page 7:

"- - - Therefore, once a dispute is referred to this Arbitration Tribunal, I must assume that the Permanent Secretary - - - had properly exercised his discretion within the parameters of the Act."

In the event that the Tribunal proceeded down the road urged by the Employer, then it would have exceeded its jurisdiction and its Award would itself be, in all probability, the subject of judicial review proceedings.

The Tribunal notes that although the Employer sought to challenge the grant of the Compulsory Recognition Order dated 31 August 2005 by a judicial review application, it did not file the application until 14 February 2006. It was out of time. The High Court refused to grant leave for the Employer to file the application out of time on the grounds, inter alia, that the Court was unpersuaded by the explanation for the delay.

The Tribunal also notes that the Permanent Secretary by letter dated 15 February 2006 addressed to the Union and copies to the Employer indicated that he had accepted the report of the present trade dispute. At no stage, since that time has the Employer sought to challenge the decision of the Permanent Secretary to accept the report of the present trade dispute.

This Dispute was referred to the Tribunal by a Reference dated 3 August 2007. The parties were provided with copies of the reference at about the same time. The Employer has not, even up to the time of writing this Award, sought to challenge the reference by way of an application for judicial review.

The Employer has not put forward any substantive reason for not negotiating and concluding an agreement with the Union. The Tribunal has concluded, after carefully considering the material in the signed Statement of Agreed Facts, that the Employer has attempted to put off the inevitable requirement to conclude an agreement with the Union for as long as is possible. The Tribunal has also concluded that the Employer has not been genuine nor acted in good faith in its reliance on technicalities and in its delayed pursuit of legal remedies in respect of those technicalities.

The Tribunal has concluded that the Employer has failed to negotiate and conclude any agreement with the Union over the terms and conditions of employment of the Union members and is as a result in breach of paragraph 4 of the Compulsory Recognition Order.

The Tribunal notes that the Terms of Reference do not permit the Tribunal to proceed any further than what is stated in the previous paragraphs.

AWARD

The Employer has failed to negotiate and conclude an agreement with the Union and as a result has breached paragraph 4 of the Compulsory Recognition (No 4) Order 2005.

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

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL