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National Union of Factory & Commercial Workers v Matasau Holdings Ltd [2011] FJHC 824; ERCC 04.2011 (23 September 2011)

IN THE EMPLOYMENT RELATIONS COURT AT SUVA
ORIGINAL JURISDICTION

CASE NUMBER: ERCC NO. 4 of 2011

BETWEEN:

NATIONAL UNION OF FACTORY & COMMERCIAL WORKERS
APPLICANT

AND:

MATASAU HOLDINGS LIMITED
RESPONDENT

Appearances: Mr. N. Tofinga for the Applicant.
Mr S. Fa for the Respondent.
Date/Place of Hearing: Monday, 19th September, 2011 at Suva.
Date/Place of Judgment: Friday, 23rd September, 2011 at Suva.
Coram: Hon. Justice Anjala Wati.

JUDGMENT OF THE COURT

-----------COMPLIANCE ORDERS – Employment Relations Tribunal made orders for compliance with the Employment Relations Promulgation – Union brought proceedings in this Court for alleged failure to comply with the orders of the Tribunal – the Court's powers and jurisdiction discussed- orders for compliance with ERT's orders made – matter adjourned for compliance and to deal with the aspect of default.

Legislations
The Employment Relations Promulgation ("The ERP 2007")

The Cause

1. The cause before this court is for an order that the employer complies with the orders of the Employment Relations Tribunal ("ERT") issued on the 17th day of June, 2011.
   
2. The union complains that the employer has failed to comply with the orders of ERT and thus it is within this Courts powers to issue compliance orders of the existing orders of the ERT.
   

The Case Background

3. On the 25th day of November, 2010, the union made an application to the ERT to order the employer to comply with s.107 of the ERP 2007.
   
4. On 31st March 2011, the ERT ordered the employer to comply wholly with s.107 of the ERP 2007. The parties were further directed to appear before the ERT on 4th April, 2011.
   
5. The union informed the ERT that the employer had failed to comply wholly with the orders of 31st March, 2011.
   
6. On 17th June 2011, the ERT ruled that: -
   

"The employer Matasau Holdings Ltd. has followed the provisions of s.107 and to ensure full compliance it should now put into place measures to conclude any prior action taken to mitigate the effects of termination (s.107 (i) (b)) to all the workers and that will of course include redundancy pay in consultation with the Union".

The Submissions

7. Mr. Tofinga, the union representative, first sought the Courts leave to use the affidavit although it did not comply with the mandatory provision of order 41 Rule 9(2) of the High Court Rules, 1988 in that it did not have an endorsement with a note showing on behalf the affidavit was filed, and the dates of swearing and filing. This application for leave arose as a result of Mr. S. Fa's preliminary objection that the affidavit was defective for want of compliance with the mandatory provision. Mr. Tofinga also submitted that if Mr Fa was genuine in his submissions on the preliminary point, then he should have raised the objections earlier and not left it until the last minute. The objection as a result should be dismissed on the grounds of laches.
   
8. On the substantive application for compliance orders, Mr. Tofinga submitted that the employer is misleading this court by saying that it had complied with the provisions of s. 197 (b) of the ERP 2007, on 18/01/2011. These are the arguments that had already been tendered in ERT after consideration of which the ERT came to a verdict that there was not whole compliance of s.107 of the ERP 2007. The evidence which the employer has tendered to this Court is the same evidence that was tendered in the ERT during the hearing and the ERT had considered that evidence before arriving at a decision. If the employer was not happy with the decision of the ERT then it should have appealed its decision instead of again submitting the point it had labored before the ERT. Mr. Tofinga stated that the union only filed this application after the expiry of the appeal period to give the employer a fair opportunity to challenge the decision of the ERT.
   
9. The counsel for the employer submitted that it has fully complied with the provisions of the ERP before the decision of the ERT and this submission and documents were tendered to the ERT. The ERT has not mentioned in its decision that it has considered the evidence that was tendered to it by the employer. The ERT has not fully analysed the evidence of the employer.
   
10. Mr Fa specifically submitted that it complied with the decision of the ERT of 17th June 2011 in the following ways:
    
    • (a) On 18th January, 2011, the parties had a meeting where the union represented to the employer that "if the company changes name and service continues under the same terms and conditions we do not expect a redundancy package but if they are employed as a new staff under a new contract then they have to receive a redundancy package from this company. However in good faith our proposal for the redundancy package is one months pay and two weeks pay for every year of service, we are keeping in mind the companies situation. As a union I can say this is one of the lowest proposals".
      
    • (b) Pursuant to the above representations, the following measures were taken to mitigate the effects of termination of its workers.
      
      • The employer offered the same terms and conditions to 13 of its workers to be employed at Woodwork (Fiji) Limited;
        
      • The employer ordered same terms and conditions to 10 of its workers to be employed at the sustainable Forest Industries but on a higher pay rate;
        
      • The employer offered redundancy packages to 10 of its employers pursuant to the requisite legislative provisions; and
        
      • The employer offered retirement packages to 3 of its workers.
        

The Law and the Determination

11. I will first of all deal with the preliminary objection of Mr. Fa regarding the defective affidavit. Indeed the affidavit does not comply with Order 41 Rule 9(2) of the High Court Rules, but Mr. Tofinga has asked for leave to use the affidavit, which leave I grant, on the basis that the employer will not be prejudiced in presenting its case on merits. The ERP 2007 is not basically concerned about technical failures and omissions in the applications. It is more geared towards resolving the question of rights of the employees and the employers in an expeditious way. For this purpose the legislature has enacted a provision of s. 235(b) which allows the court to waive any error or defect in the proceedings. I exercise my powers under this section to grant leave as well.
    
12. Before I delve into the next, being the substantive issue I wish to deal with the reason why this application was brought.
    
13. The ERT had ordered the employer to comply with the provisions of s.107 of the ERP 2007 fully.
    
14. When the union found that there was non-compliance it waited for the appealable period and when it expired, it made an application to this Court for an order that the employer be ordered to comply with the orders of the Tribunal.
    
15. The union could not file any enforcement proceedings in the ERT as there is no provision by virtue of which it could have enforced the orders.
    
16. S. 212(6) gives this Court powers to deal with situations where a person has not complied with orders of the Tribunal. It states that if a person fails to comply with a compliance order made by the ERT, the person prejudicially affected may apply to the court for the exercise of its powers under s. 221(6).
    
17. S.221(6) reads: -
    

"If a person fails to comply with a compliance order made under this section, or if the court, on an application under section 212(6), is satisfied that a person has failed to comply with the compliance order under section 212, the court may do one or more of the following things –

(a) ...

(b) ...

(c) Order that the person in default pays a penalty in a sum not exceeding $10,000 or be sentenced to imprisonment for a term not exceeding 3 months; or;

(d) Order that the property of the person in default be sequestered".

18. Mr. Tofinga's application does state that he is bringing his application under s. 221(6) of the ERP 2007 but the gist of his application and his argument was whether or not the employer has complied with the orders of the ERT and should it be ordered to comply with the same. He did not submit on the aspect of the penalty, the nature of it, and the reasons for it. Mr. Fa also did not focus on the aspect of penalty but focused on the fact as to whether it has complied with the order and whether any further orders should be made ordering it to comply with the orders of the Tribunal.
    
19. Under s. 221(6) I have to first consider whether or not the orders of the ERT has been complied with before I deal with the issue of the penalty.
    
20. I have perused the submissions of the parties and the evidence in the ERT tendered by both parties. Mr. Tofinga is correct in that Mr Fa's attempt is a re-litigation of the issue. He had raised the same issues in the ERT after hearing which, the ERT had come to the conclusion that the employer had not fully complied with s.107.
    
21. If Mr. Fa or the employer is not happy with the decision or think that the evidence that they had tendered was not considered by the ERT then the right answer should have been an appeal and not a re-litigation of the issues.
    
22. The employer's counsel's attempts to re-litigate the issues are deliberate to have a second bite at the cherry for which an order for costs against it is justified.
    
23. Now that I have ascertained that there is non-compliance with the orders, I will suspend the issue of the penalty until a later time and provide this opportunity to the parties to consult each other for the purposes of complying with the orders of the ERT, specifically, to work out and pay the workers their redundancy payment. I shall grant the parties two weeks for this issue in absence of which I will hear the parties on the penalty aspect on a date to be advised to counsels, upon consulting them.
    

Final Orders

24. I grant an order for the employer to comply with the orders of the ERT issued on 17th June 2011 within two weeks in absence of which I shall hear both the parties on the aspect of penalty at a date to be appointed by court upon consulting the parties.
    
25. There shall be an order for costs against the respondent in the sum of $1,000, summarily assessed.
    
26. Orders accordingly.
    

ANJALA WATI
Judge
23.09.2011

To:

1. Mr. N. Tofinga, Representative for the Applicant.
2. M.r S. Fa, Counsel for the Respondent.
3. File Number: ERCC No. 04 of 2011.