IN THE EMPLOYMENT RELATIONS COURT
AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC NO. 1 of 2011

BETWEEN:

TRANSPORT WORKERS UNION
Applicant

AND:

MOBIL OIL FIJI
Respondent

Appearances: Mr. Raman Singh for the Applicant.
Ms. B. Narayan for the Respondent.

Date/Place of Hearing: Wednesday, 26th January, 2011 at Suva.
Date/Place of Judgment: Monday, 31st January, 2011 at Suva.
Coram: Hon. Justice Anjala Wati.

JUDGMENT OF THE COURT

EMPLOYMENT COURT – COMPLIANCE ORDERS – alleged breach of the Employment Relations Promulgation 2007 – assessment of breach made on affidavit- no breach established- employer raises "locus standi" since applicant not a registered trade union- court makes a finding on when and whether the applicant has "locus standi" to bring the application. 
_________________

Legislations

Employment Relations Promulgation 2007.
Compulsory Recognition (No. 4) order 2005.

The Application

1.	On the 14th day of January, 2011, the applicant filed a notice of motion seeking an order that the respondent be restrained from effecting the termination of employment of 5 employees of the respondent namely Fabinano Veikoso, Isikeli Soqosoqo, Mataereti Sevalitu, Kelevi Navolaca and Alivereti Vuairaki until the consultation meetings are held between the parties to the action.

2.	The application is opposed by the employer.

The Grounds/Submissions of Applicant

3.	Mr. Singh submitted that the affected employees had received letters that they would made redundant on the 15th day of January, 2011. The redundancy has not been put into effect due to the pending application. The employer had failed to comply with s. 107 (b) of the Employment Relation Promulgation 2007 ("ERP 2007") in that it failed to "give the workers or their representatives, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and on measures to mitigate the adverse effects of any terminations on the workers concerned, such as action to attempt to find alternative employment". Mr. Singh also submitted that the Union has a right to bring the action for an on behalf of the employees because s. 265(10) of the ERP 2007 recognises the continued existence of the trade unions which were registered prior to the commencement of the ERP 2007. It was submitted that the applicant union was recognized by the employer under the Compulsory Recognition (No. 4) Order 2005.

The Grounds/Submissions of Respondent.

4.	Ms. Narayan submitted that the applicant does not have any "locus standi" to bring the application to the court as it is not a registered trade union. She further submitted that the employer had complied with s. 107 (b) of the ERP 2007 in that it consulted the employees and also on their behalf went a step further by requesting for tax exemption on the redundancy package and requesting another employer namely Guard Force to consider absorbing the employees into their workforce. The names of the employees were submitted and the proposed employer has indicated that they will accept the employees if they meet their criteria. The employees are from Suva and Vuda terminals and consultation was held on the 15th day of December, 2010. In that discussion the employees were told of the reasons for redundancy, the application for tax exemption by the employer and the package that the employees would take home. None of the employees disagreed with the package or raised any objection. The employees Matareti Sevalitu, Isikeli Soqosoqo and Kelevi Navolaca accepted the decision to terminate them. The employees Fabiana Veikoso and Alivereti Vuairaki did not say anything during the consultation but they looked reluctant to accept the decision.

The Issues

5.	The two issues before the court are:-

a.	Does the applicant have the locus standi to bring the proceedings on behalf of the subject employees?

b.	Has the employer breached s. 107(b) of the ERP 2007 as a result of which they should be restrained from carrying out the redundancies until the provision is complied with?

The Law and the Determination

6.	The application is for a compliance order. By virtue of s. 220 (1) (k) of the ERP 2007, the Court has jurisdiction to order compliance with the ERP 2007.

7.	S. 221 states that if a person has not observed or complied with a provision of ERP 2007, the Court may, in or in conjunction with any proceedings under the Promulgation to which that person is a party, order that person to do a specified thing, or cease to a specified activity, for the purpose of preventing further non-compliance with that provision.

8.	The first issue is that of locus. Does the applicant have locus to sue in its name? I have asked Mr. Singh to indicate to me whether the union was registered prior to the commencement of the ERP 2007 or under ERP 2007. The counsel has not provided me an answer in the affirmative nor have I been shown any documents of registration of the applicant.

9.	S. 144(c) of the ERP 2007 gives a registered trade union the right to sue and be sued in its name. It reads as follows:-

"The registration of a trade union renders it a body corporate by the name under which it is registered, and, subject to this promulgation, confers on it perpetual succession and may sue and be sued…"

10.	If the applicant was registered prior to the ERP 2007 coming into force or after the same came into force, it will by virtue of the registration as a trade union, become a body corporate and thus have the right to sue or be sued in its name.

11.	S. 265 (10) reads:-

"A registered trade union in existence at the commencement of this promulgation continues to be a registered trade union and this promulgation applies to that trade union".

12.	Mr. Singh has not provided any documents to show that the applicant union is registered. Nor has he been able to orally confirm the issue of registration. He seems to rely on the Compulsory Recognition (No. 4) Order 2005 which discusses compulsory recognition for the purposes of collective bargaining of any specific matter relating to the terms and conditions of employment of any person who is a voting member of the union.

13.	The purpose of the enactment of the above order is totally different. It was for the benefit of the employees to have a union recognized for the purpose of collective bargaining. This compulsory recognition was for a specific purpose and it does not grant the applicant the right to sue in its name. It can only sue in its name if it has been registered.

14.	Without being registered, the applicant does not have a locus to bring the proceedings in its name.

15.	However, I will go a step further, to still analyse the issue of the alleged breach of s. 107(b) of the ERP 2007.

16.	S. 107 (b) of the ERP 2007 states that:-

"If an employer contemplates termination of the employment by redundancy of workers for reasons of an economic, technological, structural or similar nature, the employer must give the workers or their representatives, as early as possible, an opportunity for consultation on measures to be taken to avert or to minimize the terminations and on measures to mitigate the adverse effects of any terminations on the workers concerned, such as action to attempt to find alternative employment or retraining".

17.	It is undisputed that a month before the termination, there was a meeting of the employees and the representatives of the employer namely the Human Resources & Payroll Coordinator and the Area Distribution Manager. In the meeting the employees were provided the reasons for the termination, the package for redundancy and the information on the request by employer with FIRCA not to levy tax on the package. It is further undisputed that the three employees namely Matareti Sevalitu. Isikeli Soqosoqo and Kelevi Navolaca accepted the redundancy package and the decision to terminate. The remaining two employees namely Fabinano Veikoso and Alivereti Vuairaki did not raise any objections to the pay or the decision to be made redundant, although they looked reluctant to accept the same.

18.	Mr. Singh states that calling a meeting and telling the workers that they will be made redundant does not amount to providing them with an opportunity to consult on measures to minimize or mitigate the redundancy.

19.	A meeting was held one month before the termination. That meeting was in addition to providing a written notice to terminate the employment. I find that the employer by conducting that meeting had provided the workers with an opportunity to consult on measures outlined in s. 107(b) of the ERP 2007. The employees had all the opportunity in the meeting to discuss on measures to mitigate or minimize the redundancy and also to find an alternative employment. Otherwise there was no need for the employer to call that meeting having given the written notice to the employees.

20.	I do not find it established to my satisfaction that there was breach of s. 107(b) of the ERP 2007 as a result of which the application must be declined.

21.	I also hold that the employer has acted in conformity with s. 107(b) of the ERP by holding the meeting for discussion purposes and providing a written notice as well and further by looking for an alternative employment for the employees. The applicant does not have to be provided that opportunity if the employees are provided one.

Final Orders

22.	For the above reasons, the application for an injunction restraining the employer from carrying out the terminations of the subject employees is declined.

23.	I will hear the parties on the issue of costs.

24.	Orders Accordingly.

ANJALA WATI
Judge 
31.01.2011