National Union of Hospitality Catering & Tourism Industries Employees v Pearl South Pacific Resort [2013] FJET 42; ERT Dispute 41.2010 (9 December 2013)

IN THE STATUTORY TRIBUNAL, FIJI ISLANDS
SITTING AS THE EMPLOYMENT RELATIONS TRIBUNAL

ERT Dispute No 41 of 2010

BETWEEN:

NATIONAL UNION OF HOSPITALITY CATERING & TOURISM INDUSTRIES EMPLOYEES
Grievor

AND:

THE PEARL SOUTH PACIFIC RESORT
Employer

Appearances: Mr D Urai, General Secretary, NUHCTIE.
Mr S Nandan, Reddy & Nandan Lawyers, for the Employer

Date of Hearing: Monday 9 December 2013
Date of Decision: Monday 9 December 2013

INTERIM DIRECTIONS

REFERRED DISPUTE- Section 194(5) Employment Relations Promulgation; Collective Agreement; Union Membership; Right of Union Access.

Background

1. This dispute has been referred to the Tribunal from the Mediation Unit in accordance with Section 194(5) of the Employment Relations Promulgation 2007.
   
2. The dispute arises out of:-
   
   1. An alleged refusal by the Employer to respond to letters of request by the Union, to initiate a bargaining over a Collective Agreement on behalf of 69 employees who had become union members; and
      
   2. The actions of the then General Manager of the Employer informing employees that he does not want any employees to become a Union member.
      
3. This is an issue that has remained unresolved for far too long. It is a matter of record that the dispute had been brought back on for mention and directions twenty-seven (27) times, prior to coming before me as a Tribunal Member.
   
4. Before that, under the auspice of the Mediation Unit, the dispute had been before that body over seven days.
   
5. Prior to today's report back hearing, the parties have been before this Member on the following occasions:-
   
   • 28 May 2013;
   • 29 May 2013;
   • 17 June 2013;
   • 26 August 2013; and
   • 3 September 2013.
     
6. On 17 June 2013, the Tribunal expressed its concern over the employer's lack of attendance at the report back hearing of that day and encouraged it to assist in the resolution of a dispute that had been going on since 1 October 2009.
   
7. At the report back hearing on 3 September 2013, the parties advised the Tribunal that they were close to finalising a Collective Employment Agreement for employees. On that occasion, the parties were invited to request that the matter be called back on, should circumstances require.
   

Present Status of Workplace Relations

8. At today's review, Mr Urai on behalf of his members, advised the Tribunal of the following concerns:
   
   1. That the Collective Agreement that had been reached between the parties and forwarded to the Ministry of Labour for registration, had been returned on the basis that certain provisions did not meet the statutory minima set out within the Employment Relations Promulgation 2007, that in turn has caused the Employer to question why such changes now need to be made; and
      
   2. That the Employer has now ceased the payroll deduction for Union members on the basis that no Collective Agreement was in place.
      
9. In response, Mr Nandan indicated that he did not see an issue for the Employer agreeing to any changes that simply embraced the statutory employment standards. In relation to the issue of the provision of payroll deduction services for union membership, Mr Nandan was of the view that this arose due to the fact that the Employer has not been provided with a final list of Union members. He later acknowledged that an Employer was free to provide those payroll deduction services independently of any statutory requirement imposed by Section 163 of the Promulgation and was in turn advised of the potential claim of discriminatory treatment that may be levelled against any Employer, where it provided a wide range of payroll deduction services to employees, though disallowed those services in the case of a person wanting to contribute to a trade union membership.
   
10. After some canvassing of the issues with the parties, Mr Nandan was provided with the opportunity to seek instructions from his client. In response to the concerns that the proposed Collective Agreement did not meet the statutory standard, Mr Nandan undertook to respond to the earlier correspondence sent by the Union to the Employer asking it to agree to changes to the proposed clauses, so that they would comply with the Employment Relations Promulgation. Mr Nandan undertook to do this within 7 days. Again Mr Nandan took the opportunity to seek instructions and advised that after speaking to his colleague Mr Reddy, that the Employer would give an undertaking that it would process individual requests by employees to have their union membership deducted from their pay, despite there being no Collective Agreement presently in place.
    
11. The third issue that Mr Urai sought to raise on this occasion, related to the denial by the Employer of any opportunity for the Union to gain access to its members at the workplace. According to Mr Urai he had been advised by the General Manager of the Resort, Ms Marletta that the Union would not be allowed access to the site during the employees lunch hour, until such time as the Collective Agreement was in place.
    

Directions to the Parties

12. In light of the totally unacceptable length of this dispute, including the extraordinary number of occasions that the parties have appeared before the Employment Relations Tribunal and the Mediation Service, I intend to issue Directions today that I expect to be complied with, as a means of bringing these issues to an end.
    
13. All parties are put on notice, if there is failure to comply with these Directions that I shall be issuing Compliance Orders in order to facilitate the same. The employees do not deserve to be part of a four year 'tug of war' between the Union and the Employer.
    
14. A registered Union can gain lawful access to a workplace in accordance with Section 145 of the Promulgation. Further, a worker is also entitled to ask his or her employer whether he or she can have certain monies deducted from their pay, for certain purposes. The purpose may be, for private health insurance, additional superannuation entitlements, self education, maintenance and spousal payments and the like. A legitimate purpose may also be as a deduction to a church association, trade union or other interest group. While to restate that an Employer may be under no obligation to provide such services, in cases where it does, it may be discriminatory if it did not deduct to a trade union association, but did for all other purposes and requests. This may be an issue that will require further submissions, depending on the manner in which the future conduct of the parties progresses.
    

Directions to the Parties

15. The following Directions are issued by the Tribunal:-
    
    • (i) The parties are directed to jointly re-write the outstanding clauses within the proposed Pearl Resort/NUCHTIE Collective Agreement that do not comply with the relevant provisions of the Employment Relations Promulgation 2007, within 7 days.
      
    • (ii) As part of that process, the Respondent Employer is directed to formally respond to the earlier communication sent by the Union to it, that seek agreement to the proposed changes, in line with the Promulgation.
      
    • (iii) The Respondent Employer is required to formally advise the Union in writing within 48 hours, as to whether it will allow for the payroll deduction of union membership dues for its employees, where a signed authority is provided.
      
    • (iv) The Respondent Employer is directed to allow the Union right to enter the workplace for the purposes related to the Union's business on 19 December 2013 between 12-2.00pm, at a suitable venue to be agreed between the parties by 16 December 2013, failing which it is recommended that the appropriate venue be the Employee's mess hall.
      
    • (v) The parties are to jointly communicate to the Tribunal in relation to their compliance with the following Directions that have been issued and to advise of the location of a suitable meeting area for the purposes of allowing the Union to conduct its meeting with workers. Such joint communication is required by no later than close of business 16 December 2013.
      
16. The Tribunal shall thereafter consider whether or not, it is necessary for a further Dispute Hearing to be convened, or whether based on the progress of these matters, the dispute can be regarded to have been satisfactorily resolved for present purposes.
    
17. If it is the case, that a further hearing is deemed necessary, then on that occasion the General Manager, Ms Marletta and the Human Resource Manager of the Resort will be compelled to attend the Tribunal in person, in accordance with Section 229(3) of the Promulgation.
    

I order accordingly.

Mr Andrew J See
Resident Magistrate