State v Arbitration Tribunal, Ex parte National Union of Factory and Commercial Workers [2005] FJHC 403; HBJ0028.2005 (31 October 2005)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBJ0028 OF 2005

BETWEEN:

THE STATE

v.

THE ARBITRATION TRIBUNAL
FIRST RESPONDENT

VOKO INDUSTRIES
SECOND RESPONDENT

EX-PARTE: NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS
APPLICANT

Mr. S. Sharma for Applicant
Ms M. Lord for Respondents

Date of Judgment: 31st October 2005

JUDGMENT

On 1^st June 2002 I had granted leave to the applicant to judicially review the decision of the first respondent dated 9^th March 2005.

The facts are remarkably simple. The applicant union represents workers employed by the second respondent. On Tuesday 30^th March 2004 the employees were sent home at 2.00 p.m. due to late arrival of raw materials (tin plates) documents. The workers were not paid for hours they did not work after they were sent home for the day. The union took action.

The Tribunal ruled that the second respondent was not obliged to pay wages as neither the Employment Act nor the Collective Agreement between the parties was breached.

Section 16 of the Employment Act provides:

“Every employer shall, unless the employee has broken his contract of service or the contract is frustrated or its performance prevented by act of God, provide his employee with work in accordance with the contract during the period for which the contract is binding on a number of days equal to the number of working days expressly or impliedly provided for in the contract, and if the employer fails to provide work as aforesaid he shall pay to the employee, in respect of every day on which he shall so fail, wages at the same rate as if the employee had performed a day’s work.”

The fundamental rule of statutory interpretation to which all other rules are subordinate is to see what the language used means in its ordinary and natural sense unless such interpretation leads to an absurdity.

This section makes it an employer’s duty to ensure sufficient work for the workers as per their contract. It also provides that should the employer fail to provide work, that is it fails in its duty, the employer should nevertheless pay the workers’ wages for the days on which work is not done. The workers are not to suffer loss of wages. The only exception is if performance is prevented by an act of God, or contract is frustrated.

Late of arrival of material is certainly not an act of God. The submissions of parties at the Tribunal do not raise the issue of frustration.

The Master Agreement between the parties in Clause 4 provides what the Normal Working Hours are. It states:

“(a) Normal working days per week shall be 5 days starting Monday through Friday.

(b) (i) Normal working hours per day shall be 8 hours making 40 hours per week.

(ii) Hours of work shall be based on two sets of starting and finishing time.

First set shall be 7.30 a.m. – 4.30 p.m.

Second set shall be 8.00 a.m. – 5.00 p.m.

(iii) Employees shall work these hours on a roster basis and Company shall give one weeks notice prior to any changes in the roster.

(c) SECURITY OFFICERS

Normal hour of work for Security officers shall be as follows:

Day Security - 7.00 a.m. – 5.00 p.m.

Night Security - 5.00 p.m. – 7.00 a.m.

Normal working days for Security officers shall be 6 days – Monday to Saturday. Any Security officer working in his/her day of rest shall be entitled to overtime rates.

(d) Breaks shall be given during working hours as follows:

Tea Break - 10.00 a.m. –10.15 a.m.

Lunch Break- 1.00 p.m. - 2.00 p.m.

Provided that any alteration made to the above hours shall be done by mutual agreement.”

The Tribunal was of the view that Clause 4 has the objective of regulating when overtime payments are to be activated and guarantee a certain number of hours of work for employees.

The Master Agreement provides in Clause 8 for overtime. It defines it as work performed in excess of normal working hours.

Clause 4 provides the minimum hours of work the employer was to provide. In any employment situation, the employers’ duty is to provide work. It is also employer’s duty to ensure that the raw material is available for the workers to work with. The employee’s duty is to be at work at the correct time. Employees have to travel to work at their own expense. An employer simply cannot, for a reason not provided in the Master Agreement, opt out of his duty to provide work and refuse to pay the wages.

The intention of Section 16 of Employment Act coupled with Clause 4 of the agreement compel me to the conclusion that the second respondent must pay the workers for hours lost on 30^th March 2004. Accordingly the judicial review succeeds.

I order that certiorari shall go to quash the decision of the first respondent. I declare that the employees are entitled to be paid wages for the three hours in question.

[ Jiten Singh ]
JUDGE

At Suva
31^st October 2005