IN THE EMPLOYMENT RELATIONS TRIBUNAL
AT SUVA
ERT MA Nos. 04 and 05 of 2013

BETWEEN:

FMF FOODS LIMITED
APPLICANT/EMPLOYER

AND:

NATIONAL UNION OF FACTORY AND COMMERCIAL WORKERS
RESPONDENT/UNION

Appearances:

Mr N Tofinga for the Applicant
Mr. D Nair for the Respondent

Date of Judgment: 19th August 2013

RULING ON INTERLOCUTORY APPLICATION

CATCHWORDS:

EMPLOYMENT LAW - JURISDICTION OF THE EMPLOYMENT RELATIONS TRIBUNAL ("ERT") TO ADJUDICATE CLAIMS (DISPUTES) - STATUTORY MONETARY LIMITATION FOR INITIATING SUCH CLAIMS – WHETHER THERE IS JURISDICTION TO TRANSFER CASE TO EMPLOYMENT RELATIONS COURT ("ERC") FOR DETERMINATION IF CLAIMS EXCEEDS ERT'S JURISDICTION AND/OR LIMITATION OF $40,000.00 PURSUANT TO SECTION 211(2)(a) OF THE ERP.

LEGISLATION:

THE EMPLOYMENT RELATIONS PROMULGATION 2007 ("ERP"); S. 211, 212, 213, 200 and 235.

Application Before the Employment Relations Tribunal (or "the ERT")

[1] In two separate (substantive) matters (arising as Dispute No. 02 of 2012 – LOG OF CLAIMS FOR 2010 and Dispute No. 03 of 2012 – LOG OF CLAIMS FOR 2011), the Applicant (Employer) had filed separate interlocutory applications by way of Notice of Motion with Affidavits in Support sworn by one, Ms Kirti Sharma ("the Applications") and which applications were filed simultaneously on 28th March 2013, inter alia seeking for the following Orders from the ERT:-

(As per ERT MA No. 04 of 2013):-

a)	THAT the Tribunal so determine whether or not Employment Dispute 2 of 2012 is in relation to a claim in excess of $40,000.00; and 

b)	In the event the Tribunal so determine that the remedial claim in the dispute is in excess of $40,000.00, the so said Employment Dispute 2 of 2012 be struck out for want of jurisdiction.

(As per ERT MA No.05 of 2013):-

a)	THAT the Tribunal so determine whether or not Employment Dispute 3 of 2012 is in relation to a claim in excess of $40,000.00;

b)	AND in the event the Tribunal so determines that the remedial claim in the dispute is in excess of $40,000.00 the so said Employment Dispute 3 of 2012 be struck out for want of jurisdiction; and 

c)	IN the alternate the Tribunal so Declare that the dispute before it is in breach of s200 of the ERP 2007 and struck out accordingly.

[2] The Applicant had filed the above two applications pursuant to Sections 211, 212, 213 and 235 of the ERP 2007. It seems s200 of the ERP and more specifically s200(3) of the ERP were also part of the relief sought by the Applicant. It was confirmed during the oral legal submissions that there is no pending grievance before the Mediation Unit; hence the relief sought under these provisions was misconstrued by the Applicant employer.

[3] That being the case, the Respondent, or the Union had replied to the first application (ERT MA No. 04 of 2013) on 1st May 2013 through an Affidavit in Reply sworn by John Mudaliar although they had incorrectly numbered the miscellaneous application number provided by the Registrar of the ERT as reflected on the first page: this was clearly a response to the Dispute No.2 of 2012 (Union's log of claim of 2010) as stated at paragraph 3 therein. There was no response to the second application in terms of ERT MA No. 05 of 2013 (or Union's log of claim pertaining to Dispute No.3 of 2013). I believe this was the reason for some confusion when both the matters were set down for oral submissions on 12th August 2013 before me, where neither Mr Tofinga appeared to have any clue as to the Union's response nor Mr Nair could clarify or negate Mr Tofinga's assertion that the Respondent had failed to respond to both of their Affidavits (sworn by Kirti Sharma). I simply wanted to put this issue to rest as this was raised during the oral submissions at some length. Both counsel appeared to believe without properly checking their files that there was no reply at all filed by the Respondent Union. The Respondent, it seems had failed to reply to the second application vis a viz affidavit in support sworn by Kirti Sharma. I suspect that because both matters encroach on a common issue of law and was in fact treated as a collective application, this could have been one reason, the Respondent had failed or overlooked to respond to Kirti Sharma's Affidavit in the matter of ERT MA No. 05 of 2013. 

[4] That said, it had placed the Union in a challenging position since they did not make their factual position clear and I will come to this in a short while. Fitting also at this juncture is to set out how the matter proceeded in terms of the interlocutory application as there was some suggestion by Mr Nair that the Tribunal had not allowed him the opportunity to file the Union's Affidavit(s} in Reply. Again this was highly misconceived as Mr Nair himself was not aware that one Affidavit in Reply was filed on 1st May 2012. Suffice to say, this Affidavit contained more legal arguments rather than clearly responding to the issues in terms of the facts put forward by the Applicant through their Attachments "KS 01 – KS 05", which were in essence certain correspondences exchanged by the parties and calculations in terms of the log of claims (such as wage increase) sought by the Respondent Union as per the substantive dispute matter (here, it was in relation to Dispute No.2 of 2012). I will come to the Affidavits shortly. 

[5] Notably, both the applications were to be heard on 17th June 2013 in a consolidated form, but the date was vacated by consent of the parties and re-set for 1st July 2013. On this day it seems Mr Tofinga was again unable to come for the Hearing and file notes indicated that Mr. Nair had urged the Tribunal that since a preliminary issue of law was to be determined in both the applications, the parties could proceed on the direction of the ERT to file written submissions. Subsequently, the Applicant had filed legal submissions on 1st July 2012 and the Respondent Union had filed theirs on 17th July 2013. The Respondent Union still retained a liberty to respond to the second application (that is, file their repose to the Affidavit in Support) that is also part of this determination. But they did not.

Background to the Claims

[6] In respect to the Applicant's Affidavits in Support of the Motion dated 27th March 2013 sworn by Kirti Sharma (both had same dates), there were remarked similarities except where different claims sought by the Union was concerned. I am setting out important parts of the Affidavit in respect of the matter ERT MA No. 04 of 2013, where it was stated at:

Paragraph 3 "That on or after 21st October 2012, our office was served with a report of an employment dispute by the Union (see attachment marked "KS 01").

Paragraph 4 That the said report referred to the union's letter dated 21st October 2012 (see attachment marked "KS 02").

Paragraph 5 That whilst the letter dated 21st October 2010 confirmed that the parties had reached a deadlock after a series of meeting the real matter in dispute was the Unions log of claim dated 25th February 2010 (see attachment marked "KS 03").

Paragraph 6 That having perused the said document the union proposed amendments to clauses 1,2,3,4,5,6,7,8,9, 10, 11, and 12 of the existing MOA, I have noted that the proposed amendment to clause 2 required the employer to increase all union members hourly rate by 20 cents effectively from 1st July 2010. 
 
 (Bold is my emphasis to indicate that this was different claim in terms of the action ERT MA No. 05 of 2013 where it seems that the Union had sought an increase of 10% to all Union members hourly rate effective from 1st July 2011).

Paragraph (9) That on top that wage increase, further increases were demanded by the Union for meal allowance, shift allowances, offensive work allowances and height allowances.

Paragraph (10)  That I hereby confirm that the total amount in relation to the Unions log of claim on wage increase alone amounts to more than $40,000 (see attachments "KS 03" & "KS 04")."

[7] In response, the Union had filed their Affidavit in Reply dated 1st May 2012 swown by John Mudaliar, the General Secretary for the National Union & Factory Commercial Workers Union, where it was stated at:-

Paragraph 3 "That I seek leave of this Tribunal to respond to the affidavit that has been filed in support of the motion to strike out Dispute No.2 of 2012 (Union's log of claim of 2010).

Paragraph 4 That in response to paragraphs 1 to 2; I say that the contents are for the information of the Tribunal.

Paragraph 5 That the contents of paragraph 3 are disputed as the copies of the ER Form 5 was sent to the applicant by the Permanent Secretary for Labour, Industrial Relations and Employment.

Paragraph 6 That the contents of paragraph 4 are disputed. I further say that the letters dated 27th March, 2012 and 12th April, 2011 were related to Dispute No.2 of 2012. The applicant is put to strict proof as to the contents of the said paragraph.

Paragraph 7 That the contents of paragraph 6 are disputed and the applicant is put to strict proof. The contents of paragraph 6 herein are reiterated.

Paragraph 8 That the contents of paragraph 7 are disputed and the applicant is put to strict proof. The contents of paragraph 6 herein are reiterated.

Paragraph 9 That the contents of paragraph 6 are disputed and the applicant I put to strict proof. I further say that the total amount can only be determined after the Tribunal awards the wage increment, if any.

Paragraph 10 That further the relief which the applicant is seeking directly impinges on the determination of the powers of this Tribunal which is only within the jurisdiction of the Employment Court.

Paragraph 11 That section 211 (2)(a) of the ERP relates to individual claims and does not include collective claims arising out of log of claims. This also needs to be determined by the Court as it requires interpretation of law.

Paragraph 12 That the applicant's interlocutory application is an attempt to challenge the decisions of the Permanent Secretary for Labour, Industrial Relations and the Mediation Unit that has resulted in the dispute been referred to this Tribunal for determination.

Paragraph 13 That the quantum of the claim can only be determined upon determination of the dispute, as the decision to award any increases to the wages of the workers will have to be first determined by the Tribunal.

Paragraph 14 That this Tribunal does not have the jurisdiction to strike out any dispute referred to it for determination as it is required by law to adjudicate upon it under section 211 (1) (k).

Paragraph 15 That the grounds upon which the applicant is relying for the strike out application is premature and misconceived.

Paragraph 16 That in any event even if this Tribunal so determines that the claim is in excess of $40,000.00, it does not have the jurisdiction to strike out the dispute but is required in the interest of justice to refer the same to the Court for determination.

Paragraph 17 That I further say that the interlocutory application by the applicant is an abuse of process and wrongly instituted which should be dismissed with costs."

Issue of Law

[8] The two interlocutory applications were called on 12th August 2012 before me, where the Applicant Employer had reiterated that the ERT had the important task to determine first, whether or not the two claims exceeded $40,000.00 on the strength of the affidavits (and attachments) filed. If so, then secondly, whether it exceeding the $40,000.00 mark, this then put the ERT in a testing position in terms of its jurisdiction to adjudicate claims beyond and above this ceiling when the statutory position was such that it simply took away or stripped the ERT's jurisdiction to hear and determine the substantive dispute matter(s) [here, in terms of the log of claims filed by the Union) which was alleged to have exceeded $40,000.00 limitation. 

[9] Clearly the critical issue of law had to do with the dispute claim(s) in this instance purportedly exceeding the $40,000.00 mark, which is the (maximum) monetary limitation placed on the ERT in terms of its jurisdiction to hear claims pursuant to s211(2)(a) of the ERP. Before I go into this provision, it is important that I lay out the particular provisions of the ERP 2007 that gives basis for such applications to be brought before the ERT. I start generally with s211 of the ERP that allows a range of matters to be brought before the ERT, one being "employment disputes". This is through the Permanent Secretary's powers to receive disputes under s169 of the ERP and thereafter referring to the mediation unit for mediation purposes [s170(4)(b) of the ERP]. In that regard the following provisions under s211 (1) of the ERP are relevant and applicable here:-

"211. —(1) The Tribunal has jurisdiction—

 (b) to adjudicate on employment disputes;

(j) to adjudicate on matters referred to the Tribunal by the Permanent Secretary;

(k) to adjudicate on matters referred to it by the Mediation Services or any party to the mediation;…"

[10] Following this, you will find that s211 (2) of the ERP confers a monetary limitation that is placed on the ERT in terms of its powers and jurisdiction to adjudicate claims: it states that:-

"Section 211 (2) Subject to subsection (3), the Tribunal has power—

(a)	to adjudicate on matters within its jurisdiction relating to claims up to $40,000;

(b)	…"

[Underlining is my emphasis only] 

[11] Undoubtedly the ERT is a creature of the statute (refer to sections 192 (e), (f), & (g); section 202; and section 209 of the ERP) where I find that the ERP is plain and simple that its general function is to adjudicate and determine grievances and disputes between parties to employment contracts. Here, all proceedings are deemed to be "judicial proceedings" (see s209 (2) of the ERP). This is further reflected and clarified under s210 of the ERP, henceforth I lay this provision for ease of reference:-

Functions of Tribunal
"210.— (1) The general function of the Tribunal is to assist employers and their representatives and workers and their representative trade unions to achieve and maintain effective employment relations, in particular, by adjudicating and determining any grievance or dispute between parties to employment contracts.

(2) The Tribunal may, in relation to any matter, assist parties to amicably settle the matter and the settlement must be signed by the parties and endorsed by the Tribunal as a binding decision.

(3) Nothing in this Promulgation requires the Tribunal to provide mediation assistance in a matter as a prerequisite to adjudication. 

(Again underlining is my emphasis only)
 
[12] Because the ERT is entrusted with judicial powers, where it may also derive its practice directions and procedures from the Magistrates' Court Rules under s238(2)(a) of the ERP, it is clear that matters relating to jurisdiction are no simple nor trivial issue in any context. ERT is subject to its clear statutory boundaries and jurisdiction to hear and adjudicate only those matters that are within full compliance of s211 of the ERP. This includes s211(2) of the ERP. 

[13] To that end, referrals from the Permanent Secretary or Mediation Unit does not guarantee that matters must be heard and adjudicated even when the alleged "employment dispute" went through a system and process under the ERP. Because the ERT is a separate and independent judicial body from these institutions in the ERP 2007, claims submitted from them is still subject to the scrutiny of the ERP's definition to satisfy it is a proper dispute or grievance. The ERT is further obligated to probe and determine that all the provisions in the ERP are effectively complied to put on foot only those matters that can be adjudicated on the overall merits and which are legal, valid and proper. The monetary limitation on claims placed in the ERP (either for ERT or ERC) is a vital consideration for the parties as is the compliance with registration of disputes in a timely manner under s170(6) of the ERP and /or lodging of claims in a prescribed manner (see 169(2) of the ERP). If one aspect falls foul of the legislation, then the defending party is entitled to bring an application for striking out on the overall merits of the claim.

[14] Jurisdiction of any adjudicating body albeit the Tribunal is critical to its creation, existence, and powers to fairly and justly hear or adjudicate a matter. Without this, I cannot give a good reason for proceeding to hear a matter in any given circumstance. The Applicant employer had referred this Tribunal to two important cases. One was directly on this issue and this was the case of Ram Khelwan v Budh Ram [Supreme Court, 1967 (Hammett J.), 1st 8th December]. In this case, the Supreme Court was very clear in terms of the extent of powers the Magistrate Court had when it came to adjudicating a claim amount that was in excess of the conferred jurisdiction. The Supreme Court also looked at the issue of the same court having no jurisdiction whatsoever to amend such a claim that was in excess of its jurisdiction. At paragraph H (at page 197) the Supreme Court Judge had pronounced inter alia that:-

"…Once a summons has been issued in a Magistrate Court of the first class in excess of the jurisdiction which is given to that Court by the Legislature it appears to me that the only order that may be made when the matter is being dealt with by the Magistrate is for him to strike out the cause for want of jurisdiction. The Magistrate does not appear to have any powers either to amend the claim or to transfer the case…." (Bold is my emphasis).

[15] Mr. Nair acting for the Respondent Union did not provide me with any cases authorities and relied completely on the statutory provisions to put forward his arguments. I thank both representatives although I must admit that Mr Tofinga has assisted this Tribunal immensely through both the case authorities which I found quite useful and contrary to Mr Nair's rebuttal, the case dealt by the Employment Relations Court was in fact a distinguishing authority. I am referring to Tabua v Fiji Rugby Union [2012] FJHC 1441; ERCM o1.2011 (10 August 2012). In this matter, Madam Justice Wati has very eloquently laid out the issue in hand and I simply wish to revisit the parts of her judgment that are pertinent to this matter. I note that this was a case where also the ERT's jurisdiction was questioned although in the context of a grievance matter. It also determined the powers of the ERT to transfer proceedings to the ERC for purposes of fixing a quantum beyond $40,000 limitation. 

[16] Again, Mr Nair had strongly opposed and argued that this case did not apply to the present facts and/or had a bearing on the issue of law that is sought to be determined by the ERT. He had stated that this was an individual or personal grievance matter while the current matter before the ERT is a dispute matter involving a number of workers (more than one). Through the Union's Affidavit in Reply he argued that "…section 211 (2)(a) of the ERP relates to individual claims and does not include collective claims arising out of log of claims. This also needs to be determined by the Court as it requires interpretation of law…" I beg to differ. Firstly, I do not see ERC being hassled or passed over the task of determining the jurisdiction of the ERT unless the issue is on appeal. Secondly, through Tabua's case, the ERC was very clear in terms of monetary limitation that applies to both, employment grievances and employment disputes in the ERT and I quote for quote:- 

"12. The first question that I need to answer is whether the monetary limit of $40,000 applies to employment grievance and employment dispute.

13 S. 211(1) outlines a range of matters over which the ERT has jurisdiction. S. 211(a) and (b) states that the ERT has jurisdiction to adjudicate on employment grievances and employment disputes. S.211(2) states that the ERT has power to adjudicate on all matters within its jurisdiction relating to claims up to $40,000. I find this provision to strictly mean that the range of matters over which ERT has jurisdiction is confined to a monetary ceiling of $40,000. I find that this ceiling applies to employment grievance and employment disputes as well. The reason why s. 230, being the remedies provision, does not discuss this monetary ceiling is because that is a general provision which applies to all matters heard in ERC and ERT so the proper place where the ceiling could be discussed is where it is currently located.

(Bold and underlining is my emphasis)

[17] Nothing then leaves to imagination or ambiguity as to the ERC's position here. Madam Justice Wati's decision had obviously considered the limit of $40,000 claims in both contexts: employment disputes and grievances alike. She did not choose to demarcate that where disputes are concerned, each worker will have an entitlement to $40,000 claim. It was (as I also concur) treated as one claim brought by a number of workers under the Union's guidance, representation and locus stadi to submit a dispute under sections 169 and 229(b) of the ERP of behalf of the Union members. If the statue had intended to differentiate between different types of claims then it would have spelt it out. 

[18] Furthermore, I note that when this case was dealt in the ERT and subsequently in the ERC, Mr Tofinga at the time had represented the Union. I observed at paragraphs 5, 6 & 7 that Madam Justice Wati had pondered on this issue at length after extensively hearing both sides, in particular where the spirit and intention of the ERP was concerned, and which I quote for quote:- 

"5. Both counsel adhered to the directions and addressed me extensively on the aspect. I will summarise each parties' position.

6. Mr. Tofinga's argument is that the monetary jurisdiction of $40,000 does not apply to employment grievance or employment dispute. If it did then the remedies provision outlined in s. 230 of the ERP would have indicated that the monetary limit for ERT was $40,000. S. 230 can be used by ERT and ERC both, so ERT can grant remedies beyond $40,000. The Court should make this pronouncement and send the matter back to ERT for hearing. This interpretation serves the objects of the Act that the ERP is for all workers. This will also avoid discrimination against the workers based on their employment status as all will be able to access ERT's services and get the appropriate remedies.

7. Mr. Tofinga also stated that the applicant had to go through the mediation process as required by the ERP and when the mediation failed the matter was transferred to the ERT. The applicant could not do much but find himself in the ERT."

[19] It is known fact that Mr Tofinga and Mr Nair were both Union Representatives at the relevant time. I then expect Mr Nair to be familiar with the Court's ruling because when the upper Court's position is this clear, no reasonable ERT has reasons to second-guess the ERC's decision. In my opinion it has already dealt with the issue of ERT's jurisdiction to adjudicate claims only within the limitation of $40,000. Further ERC has pointed out the legal position of the legislation. Obviously, the statute is not designed nor drafted to separate claims when it comes to disputes. The logic for this is that the Unions are given a locus stadi to represent their workers' rights in whatever context and they can chose to bring a grievance or dispute as they deem appropriate. This does not mean that they should have brought individual grievances for purposes of the log of claims sought across the board for their Union members/workers here in order to invoke the jurisdiction of the ERT properly under s211(2)(a) by merely meeting the limitation of $40,000.00. 

[20] This is simply because an employment grievance is defined in the ERP (under s4) and it is something that purports to the breach of an existing contract of service by the employer when a worker is dismissed, disadvantaged, discriminated, sexually harassed or subjected to duress only in the context of Union's membership. It does not extend to log of claims sought under a new terms and conditions of the contract of service where say, the existing contract of service is either replaced with a new one or varied. This is in the context of Collective Agreements. 

 [21] I suspect the reason the ERP is conferring the jurisdiction to the ERT under s211(1)(b) to deal with employment disputes generally and then subjecting it to a limitation for claims of this nature to be pegged at $40,000.00 is because it always intended it to be treated as one employment issue albeit it is classed as a "dispute". Any claim(s) above or beyond must be taken to ERC if that is the remedy expected or sought by the claimant(s). Here, if I were to deal with the existing claim, for argument sake, then the workers will be highly prejudiced as they can only receive a remedy within the limitation of $40,000.00. This was also the ERC's position in Tabua's case at paragraph 16, where I quote for quote:- 

"16. The ERC has original jurisdiction to hear employment matters and the applicant could have chosen to file its case in the ERC. Now that he has chosen a forum, he has to get an award within the limit set for the ERT and the ERT has to determine the remedies for the amount it has jurisdiction to award."

[22] While it is unnecessary to comment for the purposes of this application, I must state that I have my own reservations when log of claims of this nature is brought to the Tribunal for adjudication purposes in a form of an employment dispute. While I agree that where there will be potential disagreement or deadlock in terms of any negotiation for new or varied terms and conditions of a Collective Agreement, such issues may find itself at the forefront of the mediation services to continue, further good faith bargaining process; here under the skillful guidance of a qualified mediator. The fact that when this fails at mediation and by virtue of any matters failing at the Mediation Unit in reality lands before the ERT does not legitimize instant adjudication and determination. It will be different if the nature of dispute is within an agreed and signed contract of service. But what of something that is sought by one party and the other refuses and there is no signed agreement legally binding on the parties. A log of claims is one such precarious area of employment difference between the Union and the employer. 

[23] The ERP is clear how the Union may seek to secure worker's rights and entitlements within a Collective Agreement where the employer must show good faith and part-take in the process of Collective Bargaining. The law however does not impinge on a party's right by forcing it to enter into a signed Collective Agreement. This is very clear under s150 of the ERP where it states that:-

"Duty of good faith does not require concluded collective agreement

150. The duty of good faith does not require a union and an employer bargaining for a collective agreement—

(a) to agree on any matter for inclusion in collective agreement; or

(b) to enter into a collective agreement."

[24] For this reason, when the Union come to the ERT seeking adjudication on these types of matters, it is not only attempting to bypass s150 of the ERP but also putting the ERT in a challenging position where it is forced to shape the new terms and conditions of the Collective Agreement. In doing so, it will no doubt be forcing a party, here that has to be the employer to sign and bind to a new Agreement that is decided by the ERT. This cannot be by any measure right or lawful. 

[25] In my view, this is virtually forcing a party (the Applicant employer) to contract out of their rights as there was apparent disagreement as to the demands for the proposed wage increase or other entitlements put forward by the Union which was objected and/or rejected by the employer during their negotiations. This was the Union's background facts as per their Submissions filed on 17th July 2013 as at paragraphs 2.0 - 2.3. Any reasonable Tribunal cannot put its seal of approval and state what should go in the Collective Agreement. ERT is not designed to write or re-write Collective Agreements. 

[26] For this reason, I do not agree with Mr Nair's submission that the claims sought through the log of claims can only be determined in terms of the quantum after hearing of the substantive matter. This makes no logical sense when the Union by seeking a certain percentage of increase in the wages and entitlements of the workers would have calculated the kind of quantum (at least an estimated figure) to be paid out to the workers, particularly when it is backdated. 

[27] In fact the employer had made their calculations available as attached to the Affidavit of Ms Kirti Sharma. While the Union had disagreed with this through the Affidavit of John Mudaliar seeking to put this to strict proof, it seems that they did not state why the calculations were in fact, disagreed or wrong and/or produced any counter-calculation. To me, it was clear that Mr Nair knew that the claim had exceeded $40,000 mark in both the applications because not once, he argued or defended that the claims were within the $40,000 limitation. As I understood him, he had submitted that the limitation did not apply in this instance as each worker bringing this dispute claim under the umbrella protection of the Union was entitled to $40,000 when sections 211(1) (b), (j) & (k) of the ERP was applied. Section 211(2)(a) of the ERP, he had repeatedly stated was a principle only applying to personal grievances. Again I beg to differ. There is absolutely no statutory demarcation in these two forms of claims, being an employment dispute or grievance. 

[28] As to whether I can transfer this matter to the ERT in case I find it exceeds the jurisdiction of the ERT, which I do, as clearly the claim sought here is over the monetary limitation of $40,000.00, I again refer to Madam Justice Wati's ruling where she had stated this was not an option. I am laying out the relevant parts of her judgment, which I quote for quote:- 

"14 The ERT is a creature of statute. It thus must have clear statutory powers to transfer its proceeding to ERT for determination of the quantum. …

15. A party can also apply for transfer of the matter to ERC for hearing and determination. The ERT may in its discretion transfer the matter before hearing and determination if an important question of law is likely to arise; or the case is of such a nature and of such urgency that it is in the public interest that it be transferred to ERC: s. 218(2). The transfer has to be for hearing and determination of the matter. In this case the matter has already been heard and so it could not be transferred for determination of quantum.

17 S. 220 sets out the jurisdiction of the ERC. The jurisdiction does not include to hear quantum of damages referred from determinations by ERT because once ERT has exercised jurisdiction on an issue like the one before me, the ERC is meant as an appellate court for that issue.

18 In this case I have no jurisdiction to hear the quantum. The applicant has to appear before the ERT for completion of the process. I am sympathetic with the appellant for the situation he finds himself in but I cannot go past the legislated provision on jurisdiction and act ultra vires."

[29] To that end, whether or not I have the jurisdiction or legal basis to determine the appropriate or reasonable increase in terms of the desired salary/wage and/or other entitlements sought by the Union members is a moot point. That said, I have made myself clear why the ERT should not be involved in such matters. Even so, what is of larger consequence is that there is no jurisdiction to hear the present claims. I too, like the ERC find that I cannot go past the legislative intentions and act ultra vires of my powers no matter which way the claims had found its way to the ERT. The processes of disputes being accepted by the PS and the Mediation Unit attempting settlement is no valid reason or justification to proceeding to the hearing of the substantive matter. I agree that is the usual process and this is codified in the ERP. 

[30] But it does not supersede the Tribunal's limited statutory jurisdiction nor does such process confer the ERT with the additional powers to adjudicate claims that are substantially out of this ERT's monetary jurisdiction. For these reasons I find that both the claims are without any legal basis to be adjudicated. Striking out is the inevitable option here.

Decision and Orders
 
[27] In accordance with the aforesaid, the Tribunal declares and orders that:-

1.	The Applicant employer's interlocutory applications are with merits in that the claims in both the Disputes Numbers: 2 and 3 of 2012 are out of the ERT's jurisdiction. Consequently the interlocutory applications of the Employer are successful.

2.	I Order that Disputes Nos. 2 and 3 of 2012 submitted by the Union be struck out for want of jurisdiction.

3.	Cost is reserved.

DATED at Suva this 19th day of August 2013.

Ms Joshika Samujh
LEGAL TRIBUNAL