IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 13 of 2008

BETWEEN

TROPIK WOOD EMPLOYEES AND ALLIED WORKERS UNION

AND

TROPIK WOOD INDUSTRIES LIMITED

TWE&AWU: Mr N Tofinga
Tropik Wood: Ms P Salele

DECISION

This is an employment dispute between Tropik Wood Employees and Allied Workers Union (the Union) and Tropik Wood Industries Limited (the Employer) concerning the replacement of Safety Equipment.

The Dispute was referred to the Tribunal on 24 September 2008 by the Permanent Secretary with the following terms of reference:

" The dispute is over the company's alleged breach of the Master Agreement in failing to replace safety equipment and protective clothing on fair wear and tear. The union contends that the said practice was unfair, unjust and therefore seeks to have these issues addressed as soon as possible."

This reference was set out in a Form ER7 which carries the heading:

"Referral of Employment Dispute to Employment Relations Tribunal by the Permanent Secretary."

That document was forwarded to the parties as an enclosure with a letter dated 15 September 2008 from the Permanent Secretary. The letter and the enclosure were also provided to the Tribunal for the purpose of adjudicating the Dispute.

The first two paragraphs of the letter dated 15 September 2008 from the Permanent Secretary state:

"I refer to your letter dated 11th February 2008 reporting the existence of a dispute between your Union and Tropik Woods Industries Limited. I have noted that the dispute is over the Company's alleged breach of the master Agreement in failing to "replace safety equipment and protective clothing on fair wear and tear". The union contends that the said practice was unfair and unjust and therefore seeks to have these issues addressed as soon as possible.

Therefore, in terms of Section 170(2) (a) of the Employment Relations Promulgation, I have accepted the report of the Employment Dispute and in terms of powers vested upon me under the Employment Relations (Administration) Regulations 2008, Regulation 58 (2), I have referred the dispute to the Employment Relations Tribunal established in terms of Section 170 (4) of the Employment Relations Promulgation 2007."

It will be noted that the Permanent Secretary has made reference to the letter dated 11 February 2008 from the Union that reported the Dispute.

The first paragraph of the letter dated 11 February 2008 addressed to the Permanent Secretary from the Union stated:

" We hereby report an existence of a trade dispute. The dispute is between…"

It is clear that on 11 February 2008 the Union was reporting the existence of a trade dispute under the Trade Disputes Act Cap 97. That Act was the applicable law for the resolution of trade disputes at that time.

The Employment Relations Promulgation 2007 (the Promulgation) did not come into effect until 2 April 2008. The Promulgation does not operate retrospectively. Therefore prior to 2 April 2008 the concept of "dispute" or "employment dispute" as defined in the Promulgation did not exist.

Although section 265 of the Promulgation repealed the Trade Disputes Act Cap 97, that repeal was only effective from 2 April 2008. This is because the Promulgation did not operate retrospectively. The consequence of this is that rights acquired under the Trade Disputes Act prior to 2 April 2008 were not extinguished by the repeal of that Act.

The Union acquired certain rights under the Trade Disputes Act when it reported on 11 February 2008 the existence of a trade dispute. The task for the Tribunal is to determine what happens to those rights. In other words, what transitional arrangements (if any) have been made in the Employment Relations legislation for those non-extinguished rights acquired under the repealed Trade Disputes Act.

The only provision in the Promulgation dealing with the issue is section 265(11) which states:

"The Minister may make regulations for the purposes of other transitional matters including pending trade disputes and labour complaints."

The dispute reported on 11 February 2008 by the Union is clearly a pending trade dispute as at 2 April 2008. It was pending because it had not been settled.

The next step is to ask whether the Minister has made any regulations that cover pending trade disputes and if so do those regulations apply to the dispute reported on 11 February 2008 by the Union.

Part 13 of the Employment Relations (Administration) Regulations 2008 deals with "Revocation, Transitional and Savings". Regulation 58 of those Regulations states:

" (1) This regulation applies to trade dispute cases accepted by the Permanent Secretary for resolution under the Trade Dispute Act (Cap 97), but in respect of which no referral has been made to the Arbitration Tribunal before the commencement date.

(2) On and after the commencement date, all trade dispute cases that have not been referred to the Arbitration Tribunal by the Permanent Secretary and other outstanding cases are to be transferred to either the Mediation Services or the Employment Relations Tribunal in accordance with the criteria required under Section 170(4) of the Promulgation.

(3) If trade disputes or other outstanding cases are transferred under sub regulation (2), all documents filed with the Permanent Secretary in respect of the disputes or other outstanding cases may be transmitted to the Mediation Services or the Employment Relations Tribunal."

This Regulation gives rise to at least two significant issues. First, the Regulation in its entirety is stated in sub-regulation (1) as applying to trade dispute cases accepted by the Permanent Secretary for resolution but which had not been referred to the Arbitration Tribunal.

However, due to a drafting anomaly, sub-regulations (2) and (3) also refer, in addition to "trade dispute cases", to "other outstanding cases."

Secondly, in order to be transferred to the Tribunal under sub-regulation (2), a trade dispute case must meet two requirements. First, it must meet the requirement in sub-regulation 58(1) that it has been accepted by the Permanent Secretary for resolution under the Trade Disputes Act. Secondly, it must be capable of being processed under section 170(4) of the Promulgation as an employment dispute. The effect of this latter requirement is that a grievance cannot be processed under section 170(4) as that section expressly applies to employment disputes only.

The Regulations do, in a limited manner, make provision for pending trade disputes. The Tribunal must now determine whether the Permanent Secretary had accepted the report of the trade dispute for resolution under the Trade Disputes Act prior to 2 April 2008.

It was not disputed that a letter dated 25 February 2008 was forwarded to the Union from the Ministry of Labour, Industrial Relations and Employment. That letter, omitting formal parts, stated:

"The report of your trade dispute dated 11 February 2008 on the above subject received in our office on 18 February 2008 is duly acknowledged.

Please be advised that the said report is being analysed and you will be advised of the outcome in a very near future."

It is clear that as a result of this letter the actual report of the trade dispute had not been accepted by the Permanent Secretary in the sense in which that word is used in section 4 of the Trade Disputes Act.

The only other indication that the Permanent Secretary had accepted the report was in the letter dated 15 September 2008. However that was well after 2 April 2008. The Permanent Secretary purported to accept an employment dispute that had not been reported as a dispute under the Promulgation. There was no power or authority given to the Permanent Secretary under the Promulgation to accept the report of a dispute that was reported prior to 2 April 2008 as a trade dispute and then to accept it as an employment dispute after 2 April 2008.

Therefore this dispute is not covered by the transitional arrangements set out in Regulation 58 . The Tribunal does not have any jurisdiction as it is not a dispute covered by the Promulgation.

The Union submitted that this matter should be considered as falling under the category of "other outstanding cases". That term is defined in Regulation 56. However the Tribunal has concluded that whatever might be the scope of that definition, pending trade disputes were not intended to be included in that category of cases. Regulation 58(3) clearly identifies two separate categories when it states:

"If trade disputes OR other outstanding cases are transferred…" (emphasis added)

Furthermore, if the expression "other outstanding cases" was considered wide enough to include trade disputes that did not meet the test in regulation 58(1), then there would be no need for regulation 58(1) at all.

There is also a possible issue of ultra views in relation to the use of "other outstanding cases" in Regulations 58(2). The power given to the Minister under section 265(11) of the Promulgation is to make regulations for pending trade disputes and labour complaints. It may be argued that the definition of "other outstanding cases" goes beyond the expression "pending labour complaints".

However that still leaves the Union without any satisfactory answer as to what happens to the rights acquired under the Trade Disputes Act prior to 2 April 2008. The only other avenue available to the Union is to be found in section 18 of the Interpretation Act Cap 7 (as amended). The Tribunal does not intend to embark on a consideration as to how the Union may utilize the arrangements set out in that section. That is a matter for the Union.

The Tribunal must conclude that it has no jurisdiction to adjudicate this matter as an employment dispute under section 211(b) of the Promulgation. The dispute was reported prior to the commencement date of the Promulgation and is not covered by the transitional arrangement set out in Regulation 58. The Promulgation does not operate retrospectively and as a result the dispute reported on 11 February 2008 falls outside the scope of the Promulgation.

The Union made submissions in relation to a number of other provisions in the Promulgation in support of its contention that the Tribunal had jurisdiction. It is not necessary to discuss those at length other than to indicate that they did not assist the Union and could not be intended to operate in a way that would give retrospective effect to the Promulgation. The provisions that were relied upon were not sufficient to override the legal presumption that legislation does not operate retrospectively.

There will be no order as to costs in view of the circumstances under which the matter came before the Tribunal.

DATED at Suva this 8th day of May 2009.

EMPLOYMENT TRIBUNAL