Transport Workers Union v Air Pacific Ltd [2011] FJHC 9; ERCC03.2010 (24 January 2011)

IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC NO. 03 OF 2010

BETWEEN:

TRANSPORT WORKERS UNION
Plaintiff

AND:

AIR PACIFIC LIMITED
Defendant

Appearances: Mr. S. Valenitabua for the Plaintiff.
Mr. P. MacDonnell for the Defendant.
Date/Place of Judgment: Monday, 24th January, 2011 at Suva.
Judgment of: The Hon. Justice Anjala Wati.

JUDGMENT

Employment Law – Compliance Orders-Plaintiff contends that Defendant has breached Collective agreement and unilaterally varied the same without following the provisions of the said agreement and the provisions of the Employment Relations Promulgation 2007- An Order sought that the Defendant cease and desisit from further breaching the said orders and complies with the provisions of the collective agreement and the promulgation no breach established application dismissed.
_________________________________

Legislations

The Employment Relations Promulgation 2007.
The Employment Relations (Administration) Regulations 2008.

THE APPLICATION

1. On the 22nd day of February, 2010 the plaintiff filed an originating summons for the following orders:-
   
   • An order and/or declaration that the defendant's actions in drawing up the March and subsequent duty rosters for the cabin crew to put them on a "7 day tour of duty" is contrary to and will be in breach of clause 35.0 (b) of the Collective Agreement Between Air Pacific Limited and Fiji Aviation Workers Association, and also section 72 (1), (2) and (3) of the Employment Relations Promulgation 2007, and the good faith principles in the ERP 2007.
     
   • An order and/ or declaration that the plaintiff is the collective bargaining agent of the defendant's employees and that the defendant negotiates with the plaintiff in good faith on matters affecting its employees.
     
   • An injunction restraining the defendant by itself and/or through its servants and/or agents and/or howsoever from implementing the 7 days tour of duty in lieu of the present mandatory 6 days period without the agreement of the plaintiff.
     
   • A declaration that the defendants actions in obtaining resignation letters from its employees who are members of the plaintiff under threat of termination of employment is null and void and of no effect.
     
2. At the hearing, the plaintiffs' counsel advised the court that he no longer wished to pursue the application for an order for injunction.
   

REFERENCES

3. In this judgment:-
   
   • (a) The Collective Agreement shall be referred to as the ("CA").
   • (b) The Employment Relations Promulgation 2007 shall be referred to as the ("ERP 2007").
     

THE PLAINITFFS GROUNDS AND SUBMISSIONS

4. The plaintiffs grounds and submissions in support of the application can be summarized as follows:-
   
   • On 3rd September, 1998, the plaintiff and the defendant entered into a CA containing employment terms and conditions of Fiji Aviation Workers Association ("FAWA") Cabin Crew with Air Pacific Limited. FAWA is referred to as the Transport Workers Union.
     
   • The CA was registered under the provisions of the Trade Disputes Act Cap. 97.
     
   • The issue arises out of clause 35.0 (b) of the CA which states that the 'flight attendants shall not be rostered for duty, including standby and training for more than six consecutive days".
     
   • There were series of correspondences between the parties after which the defendant prepared the March and subsequent duty rosters of the cabin crew and put them on a "7 day tour of duty". The defendant has therefore varied clause 35.0 (b) of the CA. There was no consultation with the workers.
     
   • Clause 28.0 of the CA states that the parties will act in accordance with the Industrial Relations Code of Practice dated June 1973 and as revised from time to time. The Consultation Process in the code ranging from clauses 65 to 70 does not give the defendant any power to unilaterally alter or vary the CA if consultation is halted by disagreement between the parties.
     
   • The Industrial Relations Code of Practice is applicable by virtue of s. 265(7) of the ERP 2007 which states that subsidiary legislation made under the repealed Acts continues to be in force as if they were made under the ERP 2007 to the extent that it is not inconsistent with the Promulgation.
     
   • There is a consultation clause in the CA which has also been breached as the agreement was varied by the defendant without consultation.
     
   • The ERP 2007 also provides for the manner in which the CA may be varied and the defendant has not followed the procedures laid down in the ERP 2007 to vary the said agreement. S. 155 (a) of the ERP states that the union or the employer may initiate bargaining for variation of the CA but bargaining must not be initiated unless the party initiating bargaining gives 30 days written notice to the other party. The defendant has breached the provisions of the ERP 2007 by not giving the requisite 30 days notice and initiating bargaining on varying clause 35.0 (b) of the CA.
     
   • The exchange of correspondences between the parties regarding the 7 day tour duty is separate and distinct from bargaining for variation. It is wrong for the defendant to suggest that if negotiations and consultations do not fall through, then it is entitled to alter or vary the said CA without giving the mandatory 30 day notice as required by s. 155 (a) of the ERP 2007.
     
   • Clause 1.2 of the collective agreement states that "this agreement constitutes the terms and conditions of employment of flight attendants in respect of all matters covered herein. The parties agree to make reference to and abide by any other arrangement, practice or agreement which is later found to have been genuinely overlooked and therefore not included in this agreement". This drafting of the new roster does not come within the ambits of the words "other arrangement, practice or agreement which is later found to have been genuinely overlooked".
     
   • If the defendant wanted to implement any changes in the said clause of 35.0 (b) regarding change in the duty roster then it should properly utilized Clause 2.0 of the CA which provides for "leave to re-open any clause...during the currency of the Agreement solely for the purpose of resolving any problems arising therefrom in respect of interpretation or application, but not in respect of the amount of any benefit therein specified". This clause indicates that there is a need for continuous dialogue and discussions.
     
   • The defendant can also not rely on clause 4.1 of the CA which states that the defendant retains the exclusive right to manage its operation and to direct the workforce and shall exercise these rights consistent with the provisions of the agreement and that the defendant retains the rights to manage its business and operate its services in the most efficient and economical manner. Irrespective of the viability of change in the duty roster, due process of variation outlined in the CA must have been followed.
     
   • Although the cabin crews or flight attendants are paid for being rostered on 7 day duty, they still do not accept the unilateral change which is in breach of the CA.
     
   • Flight attendants are free of duty while on "layover flights" as per the definition of the term "layover" in the CA but the plaintiff submits that crew are still on duty because they are still under control of the defendant who pays them and gives appropriate allowances.
     

THE DEFENDANTS GROUNDS AND SUBMISSIONS

5. Counsel for the defendant submitted as follows:-
   
   • On 01st March, 2010 the defendant instituted a duty roster for cabin crews that required cabin crew on some services to be absent from Fiji for periods up to 7 days.
     
   • The plaintiff is aggrieved at this change and is saying that the new duty roster breaches clause 35.0 (b) of the said agreement.
     
   • The defendant has not breached clause 35.0 (b) of the CA because this new 7 day duty roster was in respect of "layover" flights. In layover flights the crew are not "rostered for duty" as stated in clause 35.0 (b) of the said agreement. In "layover" flights the crew "sign on" and "sign off" and when they "sign off" and until they "sign on" the crew is not on duty.
     
   • A layover service does not breach clause 35.0 (b) of the CA as the crew members are not rostered for duty for more than six consecutive days. The 5 days layover in Hong Kong or Honolulu is free of duty.
     
   • There is no breach of s. 72(1), (2), and (3) of the ERP 2007 as on a layover service the crew member is not required to work and they in fact do not work for period longer than those restricted by s. 72 of the ERP 2007 nor do they work outside the hours of work as set out in the CA.
     
   • The good faith argument is restricted to bargaining between an employer and a union for CA. It has no application to this case as a CA is in place and not breached by the defendant. However the defendant did show good faith dealing with the plaintiff and the numerous correspondences are evidence of this.
     
   • The defendant had a right to manage its operations as set out in clause 4 of the CA. The actions it has taken in respect to "layover flights" are entirely consistent with this right.
     
   • In respect of the injunction issues, although there is a serious question to be tried, the plaintiff has not given any undertaking as to damages. The balance of convenience test also favours the defendant because if the 7 day duty is not implemented, it will affect the operation of the flight and there will be a lot disruption to the business and effect on public interest for people who depend on the flights. The balance of convenience should be exercised in favour of allowing a business to operate. The crew members are not suffering as they are paid for being on "7 day duty".
     

THE LAW AND THE DETERMINATION

6. The dispute between the parties arose when Air Pacific Limited, the defendant, decided to fly additional new routes to Hong Kong and Honolulu where it has "layover" flights. In order to manage the routes, the defendant made new duty rosters for the crew which effectively had put them on a "7 day tour of duty". It is this new roster of "7 day tour of duty" that has aggrieved the plaintiff because it says that the new roster is in breach of clause 35.0(b) of the CA.
   
7. The entire argument centers around clause 35.0 (b) of the CA and it is for the court to make a finding on whether that clause has been breached. I will therefore determine this issue first.
8. Clause 35.0 (b) of the CA states that:-
   

"Flight attendants shall not be rostered for duty, including standby and training, for more than six consecutive days".

9. Are the crew members on duty for more than six consecutive days if they are flying to "Hong Kong" and "Honolulu" on "layover" flights
   
10. The CA defines certain important terms by clause 1 and they are:-
    
    • "Duty" – "in relation to any member of the crew of an aircraft means the undertaking on behalf of the operator of the aircraft, or any flight therein (whether as passenger or crew) or of any function (whether or not in flight) on or in connection therewith".
      
    • "Duty Period" - "in relation to any member of the crew of an aircraft means any continuous period commencing from the time when that person reports at any place in order to carry out a duty and ending at such time as that duty has been completed, so, however, that duty periods separated by intervals of less than 10 hours shall be treated as constituting a single continuous duty period".
      
    • "Layover" – means a period of 10 hours or more free of duty between duty periods at a port other than home base (from sign off to sign on)".
      
    • "Sign On" – "the sign-on time for all duties shall be 1 hour 30 minutes prior to scheduled departure time".
      
    • Sign off" – "the sign-off time shall be 30 minutes after the block on time of the last flight duty in that duty period".
      
    • "Tour of Duty" – "means the period commencing at the start of duties at home base prior to a series of flights and ending at home base on completion of the duties associated with that series of flights.
      
11. When the crew members are on a 7 day tour of duty on a "layover flight" at a destination away from home, their duty ends the moment they sign off until they sign on and if the period between the sign off and sign on is10 hours or more. The crew members are on tour of duty but not on duty for six consecutive days as they get a 10 or more hour interval between the sign off and sign on period.
    
12. It is important to note that clause 35.0 (b) prohibits six consecutive days duty and not tour of duty.
    
13. I agree with Mr. Valenitabua that the crew members are still in the course of the employment, still on a tour of duty but I disagree with him when he states that the crew members are on duty. They are not, when they get ten or more hours of interval between signing off and signing on.
    
14. The definitions make in very clear that there is no ambiguity about the interpretation of clause 35.0 (b) of the CA.
    
15. I find, that by placing the crew members on a "7 day tour of duty" on layover flights where they are given interval of 10 or more hours between signing off and signing on, does not constitute breach clause 35 .0 (b) of the CA as the prohibition of putting a crew for six day consecutive duty is not breached.
    
16. If the provision of clause 35.0 (b) of the CA has not been breached, than I do not see a reason why there has to be any compliance orders flowing. There was no need for any consultation with the workers as the agreement was not being varied. There was also no need for the 30 day notice under s. 155 (a) of the ERP to initiate bargaining for variation of the agreement.
    
17. There is no variation of the CA. What Air Pacific has done is to work within the ambits of clause 35.0 (b) to manage the new routes. It has put the crew on a new duty roster because of the new routes. This may have come as a change and some excitement amongst the crew and the excitement built up, upon the plain reading of clause 35.0 (b) of the CA. It should not be read without consulting the definitions provisions because the definition of duty becomes clearer upon reading the definitions provision.
    
18. There is also no evidence that the provision of the ERP 2007 and in particular ss. 72 (1), (2), and (3) which sets the maximum hours of work, has been breached by listing crew members on a "7 day tour of duty" as in a layover service the crew members are off duty between duty periods. They do not undertake work and so they cannot be said to be working. Of course they are paid by the airline as they are away from homebase but that does not mean that they are on duty.
    
19. The plaintiff has also sought an order and/ or declaration that the plaintiff is the collective bargaining agent of the defendant's employees and that the defendant negotiates with the plaintiff in good faith on matters affecting its employees. There is no evidence that the defendant has not recognized the plaintiff as the agent of the defendant's employees. The defendants counsel has also admitted that the plaintiff is the agent and that they had exchanged numerous correspondences with the plaintiff. There is no need for such a declaration.
    
20. The plaintiff also seeks a declaration that the defendants actions in obtaining resignation letters from its employees who are members of the plaintiff under threat of termination of employment is null and void and of no effect. I have no evidence before me to indicate that such is the position between the parties. The plaintiff must establish to the courts satisfaction that such act has happened but I am not convinced without any evidence that such a declaration is permissible.
    
21. The plaintiff's application must fail. On the issue of costs, I give the parties an opportunity to discuss with a view to reaching a settlement, failing which they should address the court on the same.
    

FINAL ORDERS

22. The originating summons is dismissed.
    
23. The parties must discuss the aspect of cost with a view to reaching an agreement, failure of which, each party is at liberty to address the court in respect of the issue of cost.
    

ANJALA WATI
Judge
24.01.2011