IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
Dispute No. 31/2010

BETWEEN:

FIJI BANK & FINANCE SECTOR EMPLOYEES UNION
APPLICANT UNION

AND:

BANK OF BARODA
RESPONDENT EMPLOYER

HEARING OF MOTION

D. Sharma for the Applicant
S. Valenitabua for the Respondent

This application came to the Tribunal by way of Notice of Motion with the Affidavit in Support from Mr. Pramod Rae the Union General Secretary seeking the following relief –

(1)	That the Employer's actions in enforcing the transfers of officers and members of the Union since on or about 15 April 2010 constitutes discrimination in employment contrary to Section 77(i)(b) and (c) of the Employment Relations Promulgation 2007 by reasons of their involvement in the activities of a union.

(2)	That the Employer be ordered to comply with Section 77 of the Employment relations Promulgation 2007 and be restrained from enforcing the transfer of any official or member of the Union until the final determination of this motion and the within Employment Dispute No. 31 of 2010.

The Union

Mr. Sharma took the Tribunal on a journey as he called it through the relevant provisions of the Employment Relations Promulgation 2007 (ERP 2007) making submissions along the following route – 

(i)	commencing with section 212 dealing with the injunctive powers of the Tribunal;

(ii)	 section 9(3) dealing with cooperation and consultation between labour and management;

(iii)	section 75 specifying the prohibited grounds for discrimination;

(iv)	section 77(b) not to offer or afford less favourable terms of employment, conditions of work, or other fringe benefits, and opportunities for training, promotion and transfer;

(v)	section 77(c) not terminate the employment of the worker, or subject the worker to any detriment;

(vi)	section 77(3) dealing with the position of a worker involved in the activities of a union; 

(vii)	section 265(9) on the effect the ERP 2007 on existing contracts and nullifying them if they are inconsistent with the ERP 2007; and 

(viii)	section 177(c) where a strike or lockout is unlawful if a dispute is reported to the Permanent Secretary for Labour and is being processed in accordance with the ERP 2007.

In a nutshell the submission of Mr. Sharma is that there is an obligation on the employer to observe the provisions of the ERP 2007 cited above and to engage the union on the matter of transfer as outlined in Schedule 1 of the ERP 2007 dealing with "Guidelines for Labour Management Consultation and Cooperation." Mr. Sharma submits that the letters of transfer to the concerned union members were in fact an ultimatum: comply or lose your job and that is tantamount to a lockout.

The Employer

Mr. Valenitabua submits that

-	The Union filed the present application as a new Employment Dispute altogether bearing a new Case Number as Dispute No. 31 of 2010 in an attempt to injunct or blocks the Employer in moving to exercise its discretion available to it under the said Agreement to transfer five(5) employees who are members of the Union.

-	The Union firstly asks for a compliance under section 212 (1) (a) alleging non compliance by the Employer with section 77 of the ERP 2007 through discrimination. Secondly, it treats or perceived to treat Dispute N.01 of 2009 as the substantive application before the Tribunal that gives it the right to ask for injunction in this Dispute No. 31 of 2010. Thirdly, it asks for an injunction under Order XXVI (26) of the Magistrate's Court Rules that the Employer be restrained from 'enforcing' transfer of any official or member of the Union.

-	It is apparent from the 2008 Union Log of Claims that transfer(s) in general or the exercise of the Employer's discretion to order an employee to be transferred is not an issue of Dispute No. 01 of 2009 but the Union's demand for an additional compensation on transfers at the instance of the Employer is.

-	The Employer submits primarily that the Union's present application must fail for the following reasons:-

1)	Want of substantive action
2)	Want of jurisdiction and No breach of section 77 of the ERP 2007
3)	Transfer prerogative of Employer and an unambiguous term of employment.
4)	Unreasonableness;

Discussion

The Tribunal refers to the decision of Justice Wati in Dr. Uma Khurma and Dr. Jagit Khurma v. USP ERC No. 12 and 13 of 2009/2010 where the case of Air NZ Ltd. v. NZ Air Line Pilots Association IUOW [1987] NZILR 656 was discussed and in particular the following commentary by Justice Williamson –

"My second preliminary comment concerns the general nature of the order for compliance jurisdiction.. procedure is not meant to be a method of evading disputes procedure nor of "fast tracking" disputes procedures…if the breach of the obligation is clear the order to comply may flow, but if the obligation itself is unclear there must first be proceedings to define the obligation.

…..it seems to me there is a difference between an applicant saying to the Court "enforce the obligation" and another saying "enforce my version of the obligation". It may be that, in cases where an obligation is fairly clear, the court… will define the obligation and issue an enforcing order. The course of action seems inappropriate in a case where the obligation is unclear and seriously in dispute."

Looking through the AFFIDAVITS submitted by both sides and after hearing the presentations during the hearing the Tribunal is satisfied that the employer has not complied with its obligations under the ERP 2007, and evidence has not been given to support the employer's position regarding the want of jurisdiction and the binding power of the letters of appointments and the Banks Rules and Regulations. 

On the other hand, the union is certain of its case in that the employer has breached section 77 (1) b) and (c) of the ERP 2007 and that section 265(9) has invalidated the Bank's Rules and Regulations.

The Tribunal took it upon itself to check the Dispute No. 01 of 2009 and has found that it concerns different parties and not relevant to the issue at hand.

The Tribunal suggests that the parties to this motion engage in continuous social dialogue and activate their LMCC Committees to improve management and labour cooperation.

RULING

The relief requested in the MOTION is granted and the Employer is restrained from enforcing the transfer of any official or member of the Union until the final determination of this motion and the within Employment Dispute No. 31 of 2010.

DATED at Suva this 13th day of May 2010.

Sainivalati Kuruduadua
Chief Tribunal