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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CIVIL APPEAL NO. 1 OF 1994
Between:
THE FIJI SUGAR CORPORATION LIMITED
Appellant
and
FIJI SUGAR & GENERAL WORKERS UNION
Respondent
Mr. B. Sweetman for the Appellant
Mr. H. Nagin for the Respondent
JUDGMENT
The Appellant (the "FSC") appeals from the decision of Sugar Industry Tribunal (the "Tribunal") dated 15 February 1994 and registered 16 February 1994 in respect of Interpretation No. 6 of 1993 (the 'decision'). The Respondent is a Union (the "Union").
The decision appealed from is as follows:
"The Wages Council Act Cap. 98 and the subsidiary legislation relating to manufacturing industry made thereunder apply to the Corporation's general employees by virtue of the fact that the Wages Councils were established to apply to various industries in respect of regulating statutory minimum wages and conditions and that the general employees and the Corporation are covered by virtue of falling within the definition set out in the Wages Council (Manufacturing Industry) Order and that consequently the Wages Regulation (Manufacturing Industry) Order 1993 binds parties and the Union's members are therefore entitled to the time and a half for work performed on Saturdays and double time for work performed on public holidays as set out in the Wages Regulation (Manufacturing Industry) Order 1993 with effect from 7 July 1993, Claim No. 3 in Dispute No. 1 of 1993 being varied in those terms."
A stay of execution of the decision was granted by the Tribunal.
Grounds of Appeal
The Grounds of Appeal are as follows as stated in the Notice of Appeal:
As agreed both counsel made comprehensive written submissions which I found to be very helpful.
Background and counsels' submissions
The Tribunal's decision sets out quite clearly the parties' case before him. For ease of reference I outline hereunder, following closely the Tribunal's words, the facts and issues involved which were for determination by the Tribunal and also the submission made in this Appeal.
F.S.C's Case (as stated by the Tribunal)
The FSC submitted that these Orders did not apply to its general employees. Hence no question arises which gives rise to the relief sought by the Union.
It argues that the general employees are amply protected by the Collective Agreement (the "Agreement") between the Union and FSC and by virtue of s.88 of the Sugar Industry Act Cap.206 (the 'SIA'). The Agreement is filed in the Tribunal Registry and registered under s90 of the SIA. It further states that s.92 made the Agreement binding on the parties and implied in every contract of employment between FSC and the general employees who are members of the Union.
The FSC therefore argues that the Agreement is binding on the Union and its members and remains in force and may not be altered or varied other than in accordance with s94 of the Act which provides:
"94 (1) A registered collective agreement remains in force until rescinded or varied by another Collective Agreement made between the same parties.
(2) ...."
On Wages Council the FSC argues (as stated in the decision) that:
"From a comparison of the two Orders with the provisions of the Agreement it was apparent that the uncertainties arising militated against the general application of the Orders. For example, while the general employees would be advantaged by the provisions relating to public holiday pay they would be worse off as regards sick leave in relation to their present conditions. How was it to be determined what was to be adopted and discarded.
Wages Councils were established pursuant to section 3 of the Wages Councils Act Cap. 98. An order establishing such a council may be made where the Minister after consultation with the Labour Advisory Board is satisfied that no adequate machinery exists for the effective remuneration of such workers. Alternatively that the existing machinery may wither cease to exist or is inadequate. In the present case, the general employees of the Corporation were amply protected by the Agreement. By section 88 of the Act collective agreements are filed in the Tribunal Registry and registered under section 90 of the Act.
Sections 89 and 90 of the Act provide inter alia for the perusal of the Agreement for inconsistency with the Act and other written laws and the right of the Tribunal to refuse registration on such grounds. These provisions have yet to be utilised. It must therefore be concluded that there was no inconsistency because the Orders did not apply to the Corporation's general employees."
Mr. Sweetman further says that "section 92 of the Act then makes the Agreement binding on the parties and implied in every contract of employment between the corporation and a general employee".
Appellant's (FSC's) written submission (on appeal)
The learned counsel for FSC in his written and oral submission stated there are six issues for determination in the three Grounds of Appeal filed by it.
The six issues are as follows, as stated in the written submission:
(1) The first issue involves the question whether the Sugar Industry Tribunal erred in law in his construction of the subsidiary legislation (Orders) relating to the manufacturing industry made by the Minister under the Wages Councils Act, and whether such subsidiary legislation, insofar as it purports to include the Sugar Industry, is ultra vires and void.
(2) whether the Tribunal erred in law and breached its duty in holding as it did that the Wages Regulation (Manufacturing Industry) Order binds the parties, without proceeding to ascertain whether so holding would thereby infringe Section 116(1) (b) of the Sugar Industry Act and Sections 8(6) and 9 of the Wages Councils Act, and whether this requires the Tribunal to compare the provisions of the Order against the provisions of the Collective Agreement.
(3) Whether in including in his ruling that the Respondent's members are entitled to be paid time and a half for work performed on Saturdays, the Tribunal had no jurisdiction or exceeded his jurisdiction, in that as regards the proceedings relating to Interpretation No. 6 of 1993, the parties were not heard on the issue of remuneration for work performed on Saturdays.
(4) Whether in ruling that the Order applied and that the Respondent's members are entitled to be paid time and a half for work performed on Saturdays simpliciter, and that accordingly the Tribunal's Award in Claim No. 3 in Dispute No. 1 of 1993 is varied, the Tribunal erred in law:
- firstly, in failing to properly construe the Order which does not merely provide for remuneration at time and a half simpliciter and does not mention Saturdays specifically and in failing to differentiate as the Order does between different working weeks during the crushing season and during the slack season when applying the Order;
- secondly, in failing to conduct a comparison between the benefits under the Order and the benefits under the Collective Agreement implicitly required by Section 116(1)(b) of the Sugar Industry Act and Sections 8(6) and 9 of the Wages Councils Act in order to determine whether as regards the Union's members, the Order is superior to the Collective Agreement, and therefore, applicable to the Union's members and whether the Tribunal's Award regarding Claim No.3 in Dispute No. 1 of 1993 requires variation.
(5) whether in ruling that the Order applied and that the Respondent's members are entitled to be paid double time for work performed on public holidays and that accordingly the Award regarding Claim No. 3 in Decision No. 1 of 1993 is varied, the Tribunal erred in law, in failing to conduct a comparison between the benefits of the Order and the Collective Agreement, implicitly required by Section 116(1) (b) of the Sugar Industry Act and Sections 8(6) and 9 of the Wages Council Act, or in implying that in all respects the Order is superior to the Collective Agreement, in order to determine whether as regards the Union's members and in what respects, the Order is superior to the Collective Agreement, and therefore, applicable to the Union's members and whether the Tribunal's Award regarding Claim No. 3 in Dispute No. 1 of 1993 requires variation.
(6) Whether, to the extent and in which respects with regard to which workers and to which season in the Sugar Industry that it can be ascertained that the Order is superior to the Collective Agreement, what the effective date or dates of application are for which Orders and which workers.
The FSC says that the first issue corresponds with Ground I; the second, fourth and fifth issues relate to aspects embraced by Ground 2 and together with the sixth issue and the third issue corresponds with Ground 3.
The written submission deals next in a summary form the events, submissions and decisions culminating in this Appeal. I do not propose to outline them in this judgment but I shall consider them as I go along.
The submission under Mr. Sweetman's signature denies that FSC conceded that:-
the Wages Regulation (Manufacturing Industry) Order 1993 applied to general employees, and repeated its earlier submission that the Order has no application to general employees either in relation to public holidays or any other part of the Regulation for the simple reason that the Collective Agreement has been approved and registered and is therefore deemed not to conflict with the Sugar Industry Act or any other written law. Under Section 92 the Collective Agreement is binding on both parties and can only be amended by agreement of the parties or by Order of the Tribunal making an Award to amend a provision in the existing Agreement.
The FSC's submissions in regard to the said six issues for determination are contained in pages 8 to 26 of its submissions and concludes by a summary of it.
On the first issue it says that if the subsidiary legislation relating to the Manufacturing Industry is held to not validly include the Sugar Industry that finding would dispose of this Appeal without the need to consider the remaining five issues.
Union's case (as stated in the decision)
Before the Tribunal it was the Union which sought a determination whether the Tribunal's award should be varied or not which it made in Dispute No. 1 of 1993. The power in this regard is contained in ss(1)(b) of s121 of the Sugar Industry Act Cap. 206 (the "SIA") which provides:
"121. - (1) The Tribunal may, of its own motion or on a reference made to it by the Industrial Commissioner-
(a) cancel an award or any of the terms of an award;
(b) vary any of the terms of an award; and
(c) suspend, for such period and subject to such limitations and conditions as it thinks fit, all or any of the terms of an award.
(2) The provisions of this Part shall apply in relation to proceedings for cancellation, variation or suspension of an award or of any of the terms of an award as they apply in relation to proceedings for the making of an original award."
In short, it was the Union's contention that the Tribunal's Award in Dispute No. 1 of 1993 did not consider fully the application of the Wages Council (Manufacturing Industry) (Variation of Field of Operation) Order 1993 and the Wages Regulation (Manufacturing Industry) Order 1993 ("Order 1 and 2" respectively) which stipulate statutory minimum requirements for all workers in the manufacturing industry. The Union submitted that these Orders applied to Union members because they were engaged in the manufacturing industry.
The Union further stated that:
"A collective agreement such as the Master Agreement (the "Agreement") between the parties may better the minimum conditions stipulated. However it cannot stipulate lower entitlements. It is open to the Industrial Commissioner pursuant to sections 89 and 90 of the Act to inform the Tribunal of inconsistencies between the Orders and the Agreement.
Furthermore, the Tribunal in not considering this issue fully has breached section 116(1) of the Act. It states:
'116. - (1) The Tribunal shall not make an award which is -
(a) inconsistent with the provisions of any other written law regulating the wages, hours of work or other terms or conditions of, or affecting the employment of any person; or
(b) less favourable to any person than any award or order lawfully made in pursuance of any other written law.'
(emphasis added)."
Therefore, the Union says that its members are entitled to public holiday rates of remuneration in accordance with the Wages Regulations (Manufacturing Industry) Order 1993.
Union's (Respondent's) submission (on appeal)
For the Respondent Mr. Nagin submits that although Ground I of the Appeal does not raise the validity of the Wages Regulation (Manufacturing Industry) Order 1993 and yet the Appellant's counsel purports to argue under this Ground that the Tribunal erred in law in "failing to enquire into and satisfy himself as a matter of law whether the Orders made pursuant to the Wages Councils Act were lawfully made in pursuance of any other law in terms of Section 116(1)(b) of the Sugar Industry Act". Mr. Nagin says that if the validity was to be challenged then it is the Judicial Review procedure under Order 53 which should have been adopted.
The validity aspect was neither raised in the proceedings before the Tribunal nor in its submissions of 31 December 1993 then how can it be raised on this Appeal. He says that the issue was quite clearly put by the Tribunal on page 4 of his decision. The Tribunal has also given its reason for coming to the decision he arrived at on pages 4, 5, 6, 7 and 8.
Mr. Nagin agreeing with the Tribunal submits that the Wages Council (Manufacturing Industry) Order does apply to the workers of FSC and the Tribunal was correct in so holding.
Mr. Nagin submits that under s. 3(1) of the Wages Councils Act Cap 98 the Minister is empowered to establish Wages Council in respect of workers described in his order and also employers to which the Order may apply. In s. 3(2) is laid down the procedure to be followed; and s. 4(1) deals with, inter alia, opportunity to object in respect of Draft Order. The F.S.C. did not lodge any objection.
Apart from that, Mr. Nagin says that the said section 116 of the Sugar Industry Act had taken into account that there may be overriding law which will affect the terms and conditions of employment.
He concludes on this ground of appeal that FSC is therefore wrong to argue that the Act provides the complete machinery for fixing of terms of employment of the employee in the Sugar Industry.
On Ground 2 he maintains that Orders 1 and 2 do bind the F.S.C as they supersede all awards between the Union and FSC. He says that it is a written law and according to section 9(1) of Cap. 98 it has overriding effect on all contracts of employment including Master Award and Master Agreement between the Union and FSC.
On the issue raised in the second half of the ground of appeal, namely, the allegation that the tribunal erred in holding as it did as stated in his decision, Mr. Nagin submits that these issues were before the Tribunal as they were in relation to the Union's Log of Claims No. 3 which were related to weekend/public holiday penalties.
The Sugar Industry Act in section 26 sets out the functions of the Tribunal including in s 27(a) the power "to hear and determine industrial disputes which have been certified by the Industrial Commissioner to be unresolved disputes over this Act". Under s. 27(b) he has the power "to register collective agreement and to hear and determine any question as to the making, registration or interpretation of such agreements".
Under s. 26(d) he has the power "to hear and determine any question as to the interpretations of this Act and of any award;" and s.26(i) gives him the power to perform such other functions as may be assigned to the Tribunal by the Master Award or by such a contract.
The other important section of the SIA is s. 89(1) which provides that "when a collective agreement has been filed under section 88, the Industrial Commissioner shall examine the terms of the agreement and shall report to the Tribunal whether in his opinion the agreement is consistent with this Act and any other written law" and "shall serve a copy of his report on the parties to the agreement".
On registration of collective agreement it is provided in s. 90(1) that:
"after considering the report of Industrial Commissioner under section 89 and any representations made to it by any party to the collective agreement the Tribunal shall-
(a) register the agreement; or
(b) refuse to register the agreement on the grounds that it is inconsistent with this Act or any other written law."
And section 91 states, inter alia, that "a collective agreement shall be void and of no effect for the purpose of this Act to the extent that it contains any provision which - (a) is in conflict with any written law; ..."
Mr. Nagin concludes his arguments on this ground by submitting that it is under section 117 of the SIA that the Tribunal was entitled to make the Order that the Union members were entitled to rates of time and half for work performed on public holidays to prevent further disputes in the matter. The said section 117 provides:
"In making an award in relation to any proceedings before the Tribunal under this Act, the Tribunal shall not be restricted to any specific relief claimed by any party or to the demands made by any party in the course of the proceedings, but may include in the award any matter or thing which the tribunal thinks necessary or expedient, in particular in the case of proceedings relating to an industrial dispute, for the purposes of preventing or settling the matter in dispute or of preventing further disputes."
On Ground 3, Mr. Nagin submits that the said section 117 fully covers the issue of alleged no jurisdiction in the Tribunal.
Consideration of the issue
The issue for determination by the Tribunal (as the Tribunal puts it) was:
"does the Wages Council Act Cap 98 and the subsidiary legislation made under it apply to the general employees of the Corporation. The subsidiary legislation referred to are specifically: the Wages Council (Manufacturing Industry) Order, the Wages Regulation (Manufacturing Industry) Order 1993 and the Wages Council (Manufacturing Industry) (Variation of Field Operation Order 1993."
The primary question in this appeal raises issues of construction of the Wages Councils Act, Cap. 98 (the "WCA") and the Subsidiary Legislation under it vis a vis the Sugar Industry Act Cap. 206 (the "SIA") in as far as the enforceability of Collective Agreement (the "Agreement") is concerned.
The Tribunal said that the issue before him was "indirectly raised" in Dispute No. 1 of 1993 concerning the specific application of the Wages Regulation (Manufacturing Industry) Order 1993 (the "1993 Order") to members of the Union. He said that although the argument was dismissed then, however under s 121(1)(b) of SIA the Union has sought a determination on this issue.
I am of the view that it was well within the powers of the Tribunal to entertain the Union's application.
I have already outlined hereabove the factual background to this case and submissions of both counsel. I have given due consideration to these submissions. The relevant Acts and Subsidiary Legislation and Orders pertaining to this Appeal have been referred to by them.
I have also stated above the Tribunal's decision on the crucial issue of interpretation of the Wages Council Orders and their application to the essential facts of this case holding that these Orders apply to the Union members despite the Agreement.
There is no doubt that WCA and the Wages Council Orders (WCO) provide for the statutory minimum wages for workers in the sugar industry. The Tribunal has in a very lucid manner dealt with the application of the WCA vis à vis the provisions of the SIA particularly in relation to the provisions therein in sections 86 to 95 which specifically deal with "Collective Agreements". One cannot say that WCA and WCO are not the written law. In the Interpretation Act Cap 7 "subsidiary legislation" under the WCA fall within the definition of "written law".
In his submission to the Tribunal Mr. Sweetman said that the application of the WCO would create "a quagmire of industrial uncertainty" and that was "not the intention of the legislature". He said:
"It increases from $100 to $150 per week, the maximum rate of remuneration of workers to whom the Order is expressed to apply. The general employees of the Corporation constitute a group whose minimum wage levels extend from $2.54.4 per hour (or $122.11 per 48 hour week) up to $3.07 per hour (or $147.70 per 48 hour week).
It will, therefore, be clear to the Tribunal that prior to the alteration in the field of operation of the Wages Council (Manufacturing Industry) Order no general employees were earning less than $100 per week so no question of application of the Wages Regulation Order could arise.
At the present time all of the General Employee category are earning less than $150 per week."
He goes on to say:
"Although this issue has arisen with Public Holiday pay, it will be quite apparent that if the Wage Regulation Order is to be applied to general employees, the benefits under the Order would be substantially less than their entitlement under the Collective Agreement. As an example, the Order entitles a worker to 10 days sick leave with pay in each calendar year whereas the Collective Agreement provides for 8 weeks sick leave on half pay and 4 weeks sick leave on quarter pay.
If the Order is to be applied to general employees, which of the two district benefits would they be entitled to? There is an inconsistency but who is to say which benefit is the greater of the two? It would depend entirely on the personal circumstances of each worker and the length of sick leave he took in any one year."
As already stated above Mr. Sweetman's argument pure and simple is that the provisions of SIA in regard to "Collective Agreements" are binding on the parties. Also no part of the 1993 Order applies to its general employees for the "simple reason that their Collective Agreement has been approved and registered and is therefore deemed not to conflict with the Sugar Industry Act or any other written law".
Applicability of Wages Councils Act and Wages Council Order 1993 to the Union
There is no doubt, and there cannot be any, that the 1993 order applies to the sugar industry in which the "general employees" of the Union are employed. That in my view is what the legislature intended, and had it intended otherwise it will have said so in so many words. There is neither an exclusion clause nor a saving clause in the Order.
Before the Order was made the FSC could have raised objection to it as it was entitled to do but it did not do so. Had that been done, the argument that Mr. Sweetman is now putting forward would not have been necessary and the Order when appropriately made would have taken care of the situation in respect of the "general employees" in the sugar industry.
This is not a case where the Court would fill the gap so as to say, if there is one to be filled. In this regard I observe that in NORTHLAND MILK VENDORS ASSOCIATION INC v NORTHERN MILK LTD (1988) 1 NZLR p.530-531 it was held that:
"Where in new legislation a very real problem has certainly not been expressly provided for and possibly not even foreseen, the responsibility falling on the Courts is to work out a practical interpretation appearing to accord best with the general intention of Parliament as embodied in the Act. The Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended."
At page 537 ibid COOKE P further to above said that a "great deal turns on the need for the Courts to appreciate and give weight to the underlying ideas and scheme of the Act".
In this case I find that the intention of the legislature is clear and unambiguous as so clearly stated in WCO.
No doubt there is the Collective Agreement which has the effect as envisaged in the various sections of the SIA already referred to hereabove. However, there is this statutory provision under WCA and WCO which are the "written law" governing the "general employees" in the sugar industry.
How does a statutory provision affect a contract (in this case the Collective Agreement on the aspect under consideration) has been stated thus in Halsb. Vol 9 4th Ed at para 426 under the Chapter CONTRACT:
"Sometimes a statutory provision affecting a contract will make express provision as to the civil rights of the parties and in that event the provisions of the statute must, of course, be applied". (emphasis added)
It has been said by D.L. PEARCE in his book STATUTORY INTERPRETATION IN AUSTRALIA at p.143:
"the best instrument for ascertaining the legislature's intention will always be the legislation itself. By reading the whole of the Act and by employing the various principles ..., a judge will usually be able to ascertain what was the object of the legislation. Even though there may be curiosities of expression or apparent contradictions or omissions an overall appreciation of the legislative scheme will usually be sufficient for the court to recognise any aberrations for what they are and to apply the Act accordingly. But the court should not be inhibited in its search for the object of an Act. It should be able to make use of any worthwhile evidence of that intention."
The role of the Courts in ascertaining the intention of the legislature has been summarised by the said author at p147 (ibid) thus:
"In summary then, the courts should see as their role the giving of effect to the purpose of legislation. To ascertain this purpose they should look primarily to the legislation before them but they should be able to supplement the understanding so obtained by reference to any other relevant and worthwhile materials. But what if, at the end of all this, no clear direction emerges from the legislature: What if the legislature has spoken in general terms or there have been developments that it could not have contemplated?
He goes on to say, inter alia, on this aspect:
"It is suggested that it is necessary at this point to recognise that the courts are a partner in the whole legislative process. Legislation is an essential part of our society but it has certain formal limitations in that it must be expressed in general terms and it must try to predict the course of human behaviour. Both these limitations would be its undoing unless the courts were prepared to supplement it by dealing with the particular cases that the legislature has left unstated or has not anticipated."
Bearing in mind the principles applicable in interpreting the intention of the legislature under WCA and the subsidiary legislation (the WCO), I hold that the Tribunal has come to the right decision.
Collective Agreement & Sugar Industry Act
This leads me on to a consideration of the status and enforceability of the Collective Agreement in regard to pay the subject-matter of WCA and WCO.
As already stated it is FSC's contention that WCO has no application to the general employees of the Union as the Agreement which has been registered under the SIA is binding on the parties despite the fact that WCO is the "written law".
The question whether the collective agreement is a binding contract has been discussed by text book writers and by Halsbury.
In Halsb. Vol. 9 4th Ed. at parag. 333 it is stated:
"there is the question of whether the collective agreement is a binding contract, and if so who are the parties to it. A collective agreement may be intended to create legal relations and, if that is the case the trade unions and employers involved in the bargaining are clearly parties to any resulting contract. On the other hand, it seems doubtful whether in the ordinary case the members of the bargaining unions will be parties to the agreement; normally, the unions appear to act in this regard only as principals, and not as agents on behalf of their members."
It is worth bearing in mind the functions of collective agreement. These have been clearly stated in the book TRADE UNIONS, EMPLOYERS and the LAW by MORRIS and ARCHER on page 157-158 as follows:
"Collective agreements fulfil two main purposes. First, they regulate relations between employers or employers' associations and trade unions. These arrangements are usually of a procedural or constitutional nature (generically called procedural agreements), but they can take a variety of forms. Agreements may, for example, contain provisions specifying the procedural stages to be followed for the resolution of disagreements, limiting industrial action until the specified procedure has been exhausted, and/or establishing permanent joint machinery for the negotiation of terms and conditions of employment. The second function of collective agreements is to regulate the terms of individual contracts of employment [1]. This is usually achieved through substantive agreements which cover subjects such as pay scales, working hours, holidays, shift work and overtime, and many other areas." (emphasis added).
On legal status of collective agreements with reference to the English Acts the following is what MORRIS & ARCHER state ibid at p.158-5.51:
"Collective agreements between employers and trade unions divide into three categories, each governed by distinctive legal provisions. The first category is by far the most common. These are agreements falling within the statutory definition of a 'collective agreement' which were made before 1 December 1971 and after 31 July 1974. A 'collective agreement' means 'any agreement or arrangement made by or on behalf of one or more trade unions [1] and one or more employers [2] or employers' associations [3] and relating to one or more of the matters mentioned in section 29(1)' of the Trade Union and Labour Relations Act 1974 [4]. These agreements are conclusively presumed not to have been intended by the parties to be legally enforceable unless the agreements is in writing and contains a provision which (however expressed) states that the parties intend the agreement to be a legally enforceable contract [5]. To demonstrate the requisite intention, the agreement must contain a statement which shows that the parties have directed their minds to the question of legal enforceability and have decided in favour of it; it seems that a statement merely that the parties intend to be 'bound' will not suffice as this could mean 'binding in honour only' [6]. It does not follow that an agreement which clearly shows that legal enforceability is intended will necessarily constitute a contract because it may still be expressed in language which is too uncertain to be interpreted, or void as in restraint of trade, or for some other reason not a contract [7].
5.52 The second category of collective agreements are those which were made between 1 December 1971 and 31 July 1974, when the Industrial Relations Act 1971 was in force. These agreements were conclusively presumed to be legally enforceable unless they contained an express exclusion clause [1]: most agreements made during that period in fact contained such a clause [2].
We have our own specific provision in relation to "collective agreements" under the Sugar Industry Act Cap.206 ("SIA") which is contained in PART IX under the caption "Collective Agreements" in sections 86 to 96. In this case the Agreement has been registered under the SIA. On its enforceability s92 provides:
"A collective agreement, as from the date on which it is registered under s90 or such other date as the Tribunal shall appoint in that behalf, shall be binding on all parties to the agreement and shall be implied in every contract of employment between an employer and an employee to whom the agreement is expressed to apply, in so far as these terms are applicable to them."
I agree with the arguments put forward by Mr. Nagin on Ground I particularly when he states that bearing in mind the provisions of s116 of SIA (referred to hereabove) that there may be overriding law which will affect the terms and conditions of employment.
Also under s91(a) of SIA a collective agreement:
"shall be void and of no effect for the purposes of this Act to the extent that it contains any provision which -
(a) "is in conflict with any written law;...."
I hold that, now that there is the WCO, which is the written law, it takes precedence.
Tribunal's approach to the issue
I find that the Tribunal has approached the issue correctly and has reached the correct decision. His reasoning is contained in pages 4 to 8 of his Decision and I set out the salient features of it hereunder.
The Tribunal considered s3 of WCA which establishes the Wages Council. As the Tribunal states (at p.4):
"Subsection (1) empowers the Minister to establish a wages council to perform certain functions in relation to the workers described in the order. Subsection (2) then provides for the making of a wages order where the Minister has consulted the Labour Advisory Board and is satisfied that no adequate machinery exists for effective remuneration of such workers or that the existing machinery is inadequate. Subsection (3) defines the application of such orders."
The purpose and intent of WCA is to provide "statutory minimum remuneration" (s8(7) of WCA).
It is further stated in the Decision that:
"A perusal of the Wages Councils Act and its subsidiary legislation is illuminating. The basis for the application of the orders under the Wages Councils Act is two fold: the first is the setting of a statutory minimum figure and the second is a description of the industry for which the orders are to apply. In the case of Wages Council (Manufacturing Industry) Order, the statutory minimum wage exclusive of allowances is $150. This was increased from $100 to $150 by the Wages Council (Manufacturing Industry) (Variation of Field of Operation) Order 1993 which amended paragraph 4 of the Wages Council (Manufacturing Industry) Order. This is to apply to workers "engaged in a manufacturing process in respect of which a licence under the Business Licensing Act is in force or is required and their employers..."
In this case the Union's members are engaged in a manufacturing process in respect of which "a licence under the Business Licensing Act is in force or is required". By s 17(2) of the Business Licensing Act Cap.204 the FSC is engaged in "sugar milling".
In regard to the argument put forward by FSC that uncertainties will arise from the application of WCO the Tribunal said:
"This would not be a problem. Suffice it to say that where the conditions prescribed in the Wages Council (Manufacturing Industry) Order 1993 were superior to those set out in the collective agreement between the Corporation and the Union then those would prevail."
The Tribunal goes on to state as follows (at page 7 of the decision) and I agree:
"There would be little difficulty with the provisions of the Act. The Wages Regulation (Manufacturing Industry) Order 1993 would apply to general employees by virtue of subsection (1) of section 9 of the Wages Councils Act. It states:
"9. - (1) If a contract between a worker to whom a wages regulation order applies and his employer provides for the payment of less remuneration that the statutory minimum remuneration, it shall have effect as it for that less remuneration there were substituted the statutory minimum remuneration, and if any such contract provides for the payment of any holiday remuneration at times or subject to conditions other than those specified in the order, it shall have effect as if for those times or conditions there were substituted the times or conditions in the order." (emphasis added)
There is no need for the observance of the procedures specified in sections 88 and 89 of the Act. Nor would there need to be any negotiation or agreement between the Corporation and the Union pursuant to section 94. These would merely apply by force of law and the Agreement between the Corporation and the Union would be amended accordingly."
The Tribunal concludes by saying at page 8 that it is "fortified" in this view by section 116(1) of the Sugar Industry Act which, inter alia, provides that:
"116. (1) The Tribunal shall not make an award which is
(a) ....
(b) less favourable to any person than any award or order lawfully made in pursuance of any other written law." (emphasis added)
The Wages Council Order (WCO) is the written law as this "subsidiary legislation" falls within the definition of 'written law' (Interpretation Act Cap. 7).
Conclusion
To summarize, for the above reasons I am unable to uphold the arguments put forward by the Appellant (FSC) on any of the Grounds of Appeal herein. I accept the submissions of the learned counsel for the Respondent in response to the Grounds. In short, I uphold the decision of the Tribunal and find that in arriving at his decision he has given the correct interpretation to the provisions of the Wages Councils Act and the Wages Council (Manufacturing Industry) Order vis à vis the provisions relating to "Collective Agreements" under the Sugar Industry Act.
The Appeal is therefore dismissed with costs against the Appellant to be taxed if not agreed.
D. Pathik
Judge
At Suva
10 December 1997
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