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National Union of Workers v Fiji Sugar Corporation [2019] FJET 11; ERT Dispute 34 of 2016 (20 March 2019)

Background

[1] On 9 February 2018, this Tribunal issued a decision in this matter, that was incorrect on the basis of information that had been relied upon for the purposes of interpreting the provisions of the Act. The decision has prejudiced the rights of a worker who was pursuing a complaint against her employer for summary dismissal. Within Paragraph 3 of the decision, the Tribunal stated:

It is noted that that by an earlier Order issued by the Chief Tribunal on 11 July 2016, that it was determined that the Respondent Employer was an “Essential Services Industries employer” for the purpose of Part 19 of the Employment Relations Act 2007. If that is the case, then the Employer contends that a dispute pertaining to the dismissal of an employee, can only be dealt with in accordance with Section 188(4) of the Act.

[2] The Tribunal further went on to state,

....the Respondent Employer is of the view that a dispute initiated by the Union within the context of an essential services industry employer, would ordinarily take the form of a ‘trade dispute’ and would therefore be one that should otherwise be dealt with by the Arbitration Court. It is submitted within the Submission of the Employer, that in cases where a ‘dispute of right’ such as a dismissal grievance exists, that this should therefore be processed by the Union on behalf of the employee, within 21 days.

The Applicant Union submits that the dispute was lodged with the Ministry of Labour on 3 October 2016. This would mean that the dispute was lodged 47 days following the dismissal decision........

The parties accept that Fiji Sugar Corporation is an employer who employs persons within an essential service and industry and on that basis, must submit to the Arbitration Court, rather than the Employment Relations Tribunal or Employment Relations Court, in relation to trade disputes as defined for the purposes of the Act.......

The Tribunal does not have any power to consider the interpretation, application or operation of an employment contract in the case of a National Essential Service and Industry Employer, other than within the confines of Part 13 of the Act, where it is dealing with an employment grievance. For a valid employment grievance to be made in the case of an Essential Service and Industry Employer, requires the grievance to be lodged or filed within 21 days. The application by the Union on behalf of its member, was done some 26 days out of time. There is simply no capacity for the Tribunal to deal with an employment grievance of this type, when it is made out of time. The Tribunal has no jurisdiction to deal with the matter. The referred employment dispute cannot be entertained and must be dismissed.

[3] The Tribunal came to this view, reliant on the submissions of the parties, that would appear to have been incorrectly formed. There was no declaration or Order made, that would give the Employer in this case, the status of an essential service and industry employer.

The Definition of Essential Service and Industry

[4] The definition of essential service and industry and essential services and industries is located at Section 188 of Part 19 of the Employment Relations Act 2007, that came into force on 11 September 2015. The provision reads:

the “essential service and industry" or "essential services and industries" means a service listed in Schedule 7 and includes those essential national industries declared and designated corporations or designated companies designated under the Decree, and for the avoidance of doubt, shall also include—

(a) the Government;