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National Union of Municipal Workers v Suva City Council [2009] FJET 16; Dispute07.2009 (10 June 2009)

IN THE EMPLOYMENT TRIBUNAL
AT SUVA

Dispute No 7 of 2009

BETWEEN

NATIONAL UNION OF MUNICIPAL WORKERS

AND

SUVA CITY COUNCIL

NUMW: Mr P Rae
SCC: Ms S Saumatua

DECISION

The National Union of Municipal Workers (the Union) filed a Notice of Motion dated 15 May 2009 seeking compliance orders against the Suva City Council (the Employer) pursuant to section 212(1) (a) of the Employment Relations Promulgation 2007 (the Promulgation).

That section states:

"212(1) If a person has not observed or complied with

(a) a provision of this Promulgation or an employment contract; or

(b) ...

The Tribunal may, by order, require a party to a proceeding to do or cease to do a specified thing or activity, for the purpose of preventing further non-compliance with the provision..."

The Union's application sought a compliance order for the Employer to fully comply with the Collective Agreement as varied by the High Court judgment dated 17 November 2006. The Union also sought an order that the Employer withdraw the Notices of retirement issued to its members and for their re- instatement without loss of benefits.

The Union relied upon the affidavit of Peni Bale sworn on 15 May 2009 in support of its application. The Employer filed an affidavit by Ratu Ilitomasi Verenakadavu sworn on 1 June 2009 opposing the Union's application.

The Employer issued retirement notices to 15 members of the Union on about 17 April 2009. The notices indicated that the employees were to retire from the Council with effect from the close of business on 15 May 2009.

The notices issued to the 15 employees were essentially in the same terms and so far as is relevant sated:

"In this context since you are over sixty years of age at this point in time, I am to advise with regret that I have no other recourse but to effectively retire you from Council's service at close of business on Friday 15 May 2009".

These notices were issued in accordance with Section XIV Sub-section 28(ii) of the Master Agreement between the parties.

In The Proceedings Commissioner Fiji Human Rights Commission –v- Suva City Council (unreported action No. 73 of 2004 delivered on 17 November 2006) the High Court of Fiji at page 22 (para 68) stated:

"...Clause 19 of the Collective Agreement between Suva City Council and its established workers unfairly discriminates against persons over the age of 55 years and over the age of 60 years and to that extent they must be declared void".

There was a similar provision in the Master Agreement between the parties in this Dispute.

The basis of the Court's decision was that the compulsory retirement age of 60 years offended the age discrimination provisions of the Constitution and the Human Rights Commission Act.

It was not clear from the material before the Tribunal whether an appeal against that decision had been filed by the Employer.

However it was accepted that the High Court decision had not been stayed and therefore represented the present legal position. As a result, if that were the end of the matter, there would appear to be no reason why the Union's application could not be granted in terms.

However, there have been a number of legislative developments that the Tribunal must now proceed to consider.

First, the Fiji Constitution Amendment act 1997 Revocation Decree 2009 (Decree No.1) wholly abrogated the 1997 Constitution with effect from 10 April 2009. As a result the provisions in the Constitution that related to age discrimination were also revoked.

Secondly, the Human Rights Commission Decree 2009 (Decree No 11) repealed the Human Rights Commission Act 1999 with effect from 12 May 2009. The Decree also exempted as a prohibited ground of discrimination any law that imposes a retirement age on a person who is the holder of a public office.

Section 11(2) of the Decree effectively excluded from the Commission's jurisdiction any issue arising under any decree made or as may be made by the President.

Thirdly, the Local Government Act (Amendment) Decree 2009 (Decree No. 12) amended section 35 of the Local Government Act Cap 125 by inserting two new subsections. Section 35(5), with effect from 15 April 2009, provided that a person appointed under the section shall retire or be retired at the age of 60 years.

Finally, the Employment Relations Promulgation (Amendment) Decree 2009 (Decree No.14) with effect from 15 April 2009 added a further exemption in relation to discrimination on the basis of age in relation to a person who is employed by or seeking employment with, the Government in accordance with the Public Service Act 1999 or a municipal council in accordance with the provisions of the Local Government Act Cap 125.

The combined effect of the legislation is that the Employer is at liberty to enforce the compulsory retirement age provision in the Master Agreement.
5.

As a result the Union's application must be dismissed. Under the circumstances there will be no order as to costs.

DATED at Suva this 10th day of June 2009.

EMPLOYMENT TRIBUNAL