Fiji Bank & Finance Sector Employees Union v Fiji National Provident Fund [2013] FJET 9; ERT Dispute 4.2012 (23 April 2013)

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

ERT Dispute No 4 of 2012

BETWEEN:

FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
Union

AND:

FIJI NATIONAL PROVIDENT FUND
Employer

Counsel: Mr P. Rae, Union Secretary
Ms L Baleimatuku for the Employer

Date of Hearing: Tuesday 23 April 2013
Date of Decision: Tuesday 23 April 2013

DECISION- Jurisdictional Issue

ESSENTIAL NATIONAL INDUSTRIES (EMPLOYMENT) DECREE 2011 - Sections 8(1) and (2); Section 26; Section 28 and Section 30; Designated Corporation; Collective Agreement Negotiated and Imposed Under Decree; Section 170(4)(a) Employment Relations Promulgation.

Background

1. The Union has been representing a former employee of the Employer, in an employment relations dispute arising out of that employee's termination.
   
2. The matter was referred to this Tribunal on 15 October 2012, ostensibly in accordance with Section 170 (4) of the Employment Relations Promulgation 2007.[1]
   
3. On 5 March 2013, the Employer was made a ''designated corporation' for the purposes of the Essential National Industries (Employment) Decree 2011.[2]
   
4. Counsel for the Employer has asked that this Tribunal take note of Section 30(2) of the Essential National Industries (Employment) Decree 2011, that relevantly states:
   

(2) Any proceeding, claim, challenge or dispute of any nature whatsoever in any court, tribunal, commission or before any other person or body exercising a judicial function, against any designated corporation that had been instituted under or involved the Employment Relations Promulgation 2007 before the commencement date of this Decree but had not been determined at that date or is pending on appeal, shall wholly terminate immediately upon the commencement of this Decree, and all orders whether preliminary or substantive made therein shall be wholly vacated and a certificate to that effect shall be issued by the Chief Registrar or the registrar of the Employment Relations Tribunal.

5. Counsel argues that the Tribunal should read the words, "commencement date of this Decree" to mean as and from 5 March 2013. That is, from the date in which the Employer was made a designated corporation. The argument therefore being, that given the dispute in question arose before that date, then it should be wholly terminated and a certificate to that effect issued.
   
6. Mr Rae for the Union argues that there is no statutory block in preventing the Tribunal dealing with the dispute. He argues, that the words "commencement date of this Decree" can only relate to the date in which the Decree itself began; that date being 9 September 2011.
   
7. I find it hard to give those words any other meaning. By way of example only, the Essential National Industries (Employment) (Amendment) Decree 2011[3], highlights the use of the distinction of the words, "commencement of this Decree" and "designation as a designated corporation". In that case, the amendment appears to have made provision for the fact that subsequent inclusions to the list of corporations within Schedule 1 to the Essential National Industries & Designated Corporations Regulations 2011 would need to have a sunsetting of their existing 'pre-designation' collective agreements for a period of 60 days.[4]
   
8. No such amendment occurred in the case of Section 30(2).
   
9. As Wati J stated in Fiji Revenue and Customs Authority v Narayan[5]
   

In the final analysis, I find that whilst s. 28(2) of Decree No. 35 of 2011 has a prospective effect, s. 30(2) clearly and unequivocally states that it applies retrospectively.

10. Insofar as the prospective effect of Section 28(2) is concerned, as Brito Mutunayagam J stated in Buksh v Bank of the South Pacific Group[6],
    

On a construction of this section, I am of the view that the introductory words "Except as provided in this Decree" creates an exception to the general proposition that the provisions of the ERP are not applicable. The scope of the ERP is limited to the provisions saved in the Decree, which are sections 10 and 20, as submitted by Mr Apted.

Section 10(a) provides that " a prospective or existing representative must apply in writing to be elected or re-elected as a representative of a Bargaining Unit and provide... the information required by Section 119(3) of the Employment Relatio60;Promulromulgation,2007".

Section 20 provides that " the principles of good faith set out in Division 1 of 16 of the Employment Relations&#romulromulgation,2007 shall apply to all negotiations ions and interactions between the employer and the registered representative."

11. That exception is only relevant where there is any inconsistency between the words of the Decree and the Employment Relations Promulgation 2007.[7]
    
12. In the case before the Tribunal there is no inconsistency.
    
13. The reason for this, is because the dispute before me, is not otherwise covered within Section 26 of the Decree. This is not a dispute that arises out of either a collective agreement negotiated or imposed under the Decree. Rather it is one that arises out of a Collective Agreement that is an "existing collective agreement" for the purposes of Section 8. It is not a matter contemplated in the words of Section 30(1), nor does it relate in my view to:
    

"any proceeding claim, challenge or dispute of any nature whatsoever in any court, tribunal, commission or before any other person or body exercising a judicial function, against any designated corporation that had been instituted under or involved the Employment Relations Promulgation 2007 before the commencement date of (the) Decree ".

14. At best it can only be argued to have been commenced for the purposes of Section 30(2), as and from 15 October 2012.[8]
    
15. It is unclear why subsequent designated corporations should be treated this way for the purposes of the Decree, however based on the submissions of the parties and the legal cases and instruments before me, I cannot reach any other conclusion.
    
16. The application of the Employer is rejected and the parties must now otherwise submit to the jurisdiction of this Tribunal for the purposes of allowing for the effective resolution of the dispute.
    

I determine accordingly.

Mr Andrew J See
Resident Magistrate

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^[1] It is unclear why this matter was not first referred to Mediation Services in accordance with Section 170(4)(b) of the Promulgation.

^[2] See Essential National Industries & Designated Corporations (Amendment) Regulations 2013. Legal Notice No 20.

^[3] Decree 47 of 2011.

^[4] See the impact of that amendment to Section 8(2) of the Decree.

^[5] [2012] FJHC 1438.

^[6] [2012]FJHC 1055

^[7] Section 28(1) of the Decree makes this clear that the Decree will prevail to the extent of any inconsistency.

^[8] That is the date in which it was referred to the Tribunal by the Permanent Secretary.