Fiji Local Government Officers Association v Nausori Town Council [2008] FJAT 32; Award 34 of 2008 (20 June 2008)

THE REPUBLIC OF THE FIJI ISLANDS

NO 34 OF 2008

AWARD OF
THE ARBITRATION TRIBUNAL

IN THE DISPUTE BETWEEN

FIJI LOCAL GOVERNMENT OFFICERS ASSOCIATION

AND

NAUSORI TOWN COUNCIL

FLGOA: Mr R K Singh
NTC: Mr A Prasad

DECISION

This is a dispute between Fiji Local Government Officers Association (the Union) and Nausori Town Council (the Employer) concerning the appropriate salary scale for Mr Hirendra Prasad (the Grievor).

A trade dispute was reported by the Union on 1 May 2007.

The report was accepted by the Permanent Secretary who referred the Dispute to conciliation.

Subsequently the Minister authorized the Permanent Secretary to refer the Dispute to an Arbitration Tribunal for settlement pursuant to section 6 (1) of the Trade Disputes Act Cap 97.

The Dispute was referred to the Permanent Arbitrator on 27 September 2007 with the following terms of reference:

" - - - for settlement over the Council’s failure to afford appropriate salary despite promoting Mr Hirendra Prasad from Rates Clerk to Senior Rates Clerk effective from 6 March 2006. The Union claims that the Council’s action were unjust and inconsistent and seeks the Council to review the salary structure for the promotion".

The Dispute was listed for a preliminary hearing on 19 October 2007. On that day the parties were directed to file preliminary submissions within 21 days and the Dispute was listed for mention on 30 November 2007. The Union filed its preliminary submissions on 7 November and the Employer did so on 13 November 2007.

The Dispute was initially listed for hearing on 28 January 2008. On that day the parties, for differing reasons, applied for the hearing date to be vacated. The Tribunal granted the application and directed by consent that the hearing date be vacated and that the dispute be relisted for mention on 29 February 2008.

The two issues that had caused concern for the parties were first the representation of the Employer and secondly the issue for determination by the Tribunal as set out in the Terms of Reference.

The Tribunal was satisfied that the Employer’s resolution No 07/08 adopted on 27 February 2008 was sufficient to enable it to be represented Mr Arun Prasad.

However the question of the issue for determination in the Reference was not addressed by the parties prior to the hearing of the Dispute on 23 May 2008 in Suva. Each party called one witness to give evidence. At the conclusion of the evidence the parties presented oral closing submissions.

The Grievor has been employed by the Nausori Town Council for 19 years. He commenced as an accounts officer and in 1995 was promoted to the position of rates officer. That promotion did result in a move up to the next salary scale.

By letter dated 6 March 2006 from the Employer’s Town Clerk, the Grievor was advised that he was to be promoted to Senior Rates Officer. Omitting formal parts, the letter stated:

"Promotion to Senior Rates Officer

I am pleased to advise that Nausori Town Council in its meeting of 20 February 2006 has approved your promotion to the position of Senior Rates Officer, Nausori Town Council.

The Council is satisfied that you can execute well the collection of rates.

In this promotion you will be the Officer-in-Charge of Rates Department and your salary with effect from 1 February 2006 will be $14,044 per annum in Admin 2."

The promotion of the Grievor to the position of Senior Rates Officer was based on a paper prepared by the Town Clerk for the Council’s consideration. The paper was dated 14 February 2006 and carried the title "Designation –

Hirendra Prasad". The paper included the following paragraphs which are relevant to the Dispute:

" - - -

Management views Hirend an industrious officer with good sense of balance and is dedicated to Council.

In view of the fine performance of the Officer, it is recommended that Hirendra Prasad be designated the position of Senior Rates Officer, the Officer-in-Charge of Rates Section. Hirend’s present salary is $13,586 per annum.

It is recommended that Hirend’s salary structure to remain as existing and his salary be increased by one increment of $458 which will bring his new salary to $14,044 per annum.

Council approval is now required."

The evidence established that the Grievor’s salary prior to and after his promotion remained within the NT 04 (or Admin 2) range which applied to Field Supervisor/Assistant Health Inspector/Rates Officer/Market Master/Secretary.

The range above that level is NT 03 (or Admin 1) and was applicable to Health Inspector/Building Surveyor/Administration Officer/Senior Accounts Clerk.

The position advanced by the Union was that upon promotion from Rates Officer to Senior Rates Officer the Grievor should have been elevated to the NT 03 salary scale.

The Employer’s position was that the Grievor’s duties remained essentially the same and that his position title had only been changed. The Employer did acknowledge that of the two employees in the rates office, the Grievor did assume the senior position upon his promotion to senior rates officer.

The duties and tasks performed by the Grievor prior to his promotion on 6 March 2006 were set out in a letter dated 24 November 2005 from the Town Clerk addressed to the Grievor. They were listed as:

"1. To be in control of all rates files and to ensure that all files are properly filed.

2. Attend to all rate queries

3. Corresponding with Council Solicitors and taking appropriate actions for recovery of rates.

4. Attend court in all rates matters.

5. Preparation of monthly reports for Council meetings on rate collection and related matters.

6. Reconciliation of rates on monthly basis.

7. Dissection of rates on monthly basis.

8. To implement all the rate strategies for collection of rates.

9. To assist in distribution of town rate notices.

10. As an employee of the council please note that it should be an offence for any officer to disclose without authority any official information whether confidential or not acquired during the course of your duties.

11. Any other duties as assigned by the Town Clerk or Treasurer from time to time."

The duties and tasks to be performed by the Grievor following his promotion were set out in a letter dated 11 May 2007 addressed to the Grievor from the Town Clerk. They were stated as:

"Position: Senior Rates Officer

1. You will assume the role of Head of Department for the rates section

2. You will attend to all rates queries, design and implement appropriate strategies and events to maximize collection of rates.

3. You will take a leading role in dealing with legal aspects of rates claims and liaising with council solicitors including claims in the small claims tribunal.

4. You will designate appropriate duties to other subordinate officers.

5. You will take responsibility to oversee that the data entry is carried out on a timely basis and ensure that the reports are properly reconciled and prepared on time for presentation to council and management meetings.

6. You will ensure that rates demand notices are printed and distributed no later than 15th January 2008 and as per instructions of the council.

7. You will take responsibility to oversee that the data entry is carried out on a timely basis and ensure that the reports are properly reconciled and prepared on time for presentation to council and management meetings.

8. You will ensure that rates demand notices are printed and distributed no later than 15th January 2008 and as per instructions of the council.

9. As the head of the rates team, you will strive your best to collect maximum rates and achieve the overall targeted collection of $25,000 per month.

10. You will ensure that individual rates action book is maintained whereby all actions taken to recover rates is recorded and presented and when required.

11. As an employee of the council, please note that it shall be an offence for any officer to disclose without authority any official information whether confidential or not acquired during the course of your duties.

12. Any other duties assigned by the Town Clerk or Treasurer from time to time."

It will be noted that items 5 and 6 are repeated as items 7 and 8. It is clear that the letter dated 11 May 2007 placed added responsibility on the Grievor by the use of words and phrases that indicated that he had assumed a management role.

In the first paragraph the Grievor was referred to as Head of Rates Department. In paragraph 2 the Grievor is required to design an appropriate strategy to maximize collection of rates. In his earlier position description the Grievor was only required to implement rate strategies for rate collection (paragraph 8 of the earlier position description).

In paragraph 3 the Grievor was required to take a leading role in legal aspects of rate claims including claims on the small claims tribunal. There was no reference to the small claims Tribunal in the earlier position description.

In paragraph 4 the Grievor was expressly required to designate duties to subordinate officers. There was no such duty in the earlier position description.

In paragraph 5 there was a requirement specified for the Grievor to take responsibility to oversee timely data entry and report preparation.

In paragraph 9 the Grievor was tasked, as head of the rates team, of striving to collect a pre determined target of $25000 per month.

The Tribunal is satisfied that the evidence has established that the Grievor’s promotion was more than just a redesignation of position title. There were substantive additional responsibilities placed on the Grievor which indicated that he had in fact been promoted.

An incremental increase within a particular salary range or scale is usually associated with an employee performing the same tasks to a satisfactory level over a certain period of time or performing tasks to a predetermined target. On the other hand a movement up to the next scale or range is usually associated with a promotion, as a result of a job evaluation exercise or as a result of a restructure.

The Tribunal has concluded that the Grievor was promoted from rates officer to senior rates officer. That promotion imposed additional responsibilities on the Grievor and required him to assume a management role. As a result the Grievor was entitled be moved to the next salary range being NT 03 or Admin 1.

However the Reference to the Tribunal only requires a determination as to whether the Employer’s action was unjust and inconsistent. The Tribunal finds that the Employer’s decision was unjust and inconsistent.

The remedy sought in the Reference is that the Employer review the Grievor’s salary structure for his promotion. The Tribunal can do no more than so direct.

AWARD

The Employer’s decision to award the Grievor an incremental increase within his existing salary scale or range upon his promotion to Senior Rates Officer was unjust and inconsistent.

The Employer is required to review his salary structure as a result of his promotion.

DATED at Suva this 20 day of June 2008.

Mr. W. D. Calanchini
ARBITRATION TRIBUNAL