States Employment Board v Fire and Rescue Service Association

JurisdictionJersey
CourtRoyal Court
JudgeJ. A. Clyde-Smith
Judgment Date18 April 2019
Neutral Citation[2019] JRC 67
Date18 April 2019

[2019] JRC 67

ROYAL COURT

(Samedi)

Before:

J. A. Clyde-Smith, Esq., Commissioner, sitting alone.

Between
States Employment Board
Appellant
and
Fire and Rescue Service Association
Respondent

Advocate S. M. Roberts for the Appellant

Advocate R. C. L. Morley-Kirk for the Respondent

Authorities

Employment Relations (Jersey) Law 2007.

Employment of States of Jersey Employees (Jersey) Law 2005.

Public Employees (Pensions) (Jersey) Law 2014.

Article 22 of the Public Relations Law

Employment (Jersey) Law 2003.

Voisin (trading as Voisins Department Store) v Brown [2007] JLR 141.

Jones v Royal Bank of Scotland International [2007] JLR Note 44.

JT (Jersey) Limited v Wood [2016] (2) JLR 293.

Luxicabs Limited v Baal [2011] JLR 208.

JT (Jersey) Limited v Wood [2016] JCA 183.

Wood v JT Jersey Limited [2016] 1 JLR 369.

Employment — the Appellant appeals against the decision of the Employment and Discrimination Tribunal.

THE COMMISSIONER:
1

The States Employment Board (“the SEB”) appeals against the decision of the Employment and Discrimination Tribunal (“the Tribunal”) to make a declaration under Article 22 of the Employment Relations (Jersey) Law 2007 (“the Employment Relations Law”) to the effect that the SEB has failed to observe the provisions of an available procedure to resolve a collective employment dispute.

2

The SEB is a body corporate established under the Employment of States of Jersey Employees (Jersey) Law 2005 to employ those in public service, including those in the Fire and Rescue Service.

3

The respondent (“the FRSA”) is a trade union that (for these purposes) represents those members of the Fire and Rescue Service employed by the SEB before 1 st January, 2016.

4

In 2010, the FRSA on behalf of its members entered into a “No Impairment of Service Agreement” with the SEB in which each whole time fire fighter received a non-pensionable lump sum of £6,000 for agreeing not to take any industrial action which might impair the service provided by the Fire and Rescue Service and this on the basis that any disputes would be resolved by a fast-track procedure set out in a document entitled “Fast Track Resolution Procedure”.

5

Paragraph 2 of section 3 of the Fast Track Resolution Procedure explains the purpose of the agreement:-

“2. The purpose of this agreement is to set down a framework for the discussion of issues, whether proposed by Management or the FRSA … which involve those aspects of pay, terms and conditions of service of Fire and Rescue Service's staff represented by the FRSA… that are subject to negotiated outcomes as covered by Section 1 of the Terms and Conditions Agreement.”

6

Paragraph 4 sets out the no impairment agreement:-

“The FRSA and its members will not at any time take any industrial action/actions which impairs or may impair the service provided by the Service. This includes emergency response to incidents, community fire safety activities, fire prevention work and all preparatory activities such as training and equipment maintenance. In return a Fast Track Procedure for the settlement of collective differences has been developed and is set out in Section 4.”

As can be seen it is the mandatory application of the Fast Track Resolution Procedure to collective differences, which would result in binding arbitration, that was the quid pro quo for the members agreeing not to take industrial action.

7

Section 4 sets out general principles which are described as “paramount”, sub paragraph a) of which provides:-

“a) Where disagreements involve pay, and items covered by Section 1 of the Terms & Conditions Agreement that are subject to negotiated outcomes, the resolution of disputes procedure set out in sections 4, 5 and 6 of this agreement must be followed. …” (my emphasis)

8

There is then set out a four stage process which in the event of a disagreement remaining unresolved, leads finally in arbitration the result of which is binding on both parties.

9

Section 1 of the Terms & Conditions Agreement contains provisions relating to representation rights, working hours, pay, pension and fire-fighter career progression amongst others.

The dispute
10

The dispute, which the FRSA claims should be subject to the Fast Track Resolution Procedure, arose out of the pension provision for the members. Their contract of employment describes the post of Firefighter as pensionable and from the date the employee took up his or her duties they were eligible to join the Public Employees Contributory Retirement Scheme, which is a final salary pension scheme. In 2013, following consultations with representative bodies of public sector employees and trade unions, changes to the pension were brought into effect through the Public Employees (Pensions) (Jersey) Law 2014. In simple terms under the new scheme the final pension is based on the career average earnings as opposed to the average of the last three years. It is known as the “CARE Scheme”. The CARE Scheme took effect for new employees from 1 st January, 2016, and for existing employees from 1 st January 2019.

11

Advocate Roberts, for the appellant, explained that the CARE Scheme is designed to be fair to all of the employees under the scheme, but it is the case of the FSRA that the CARE Scheme is particularly detrimental to its members, who are of long service, in terms of increased contributions and reduced benefits. Initially, the FRSA sought to have the CARE Scheme amended, but it accepted that amending the legislation was not within the gift of the SEB, and not susceptible, therefore, to a negotiated outcome with the SEB under the Fast Track Resolution Procedure. The FRSA therefore sought compensation from the SEB for the financial loss to its members, but the SEB has refused to deal with the matter under the Fast Track Resolution Procedure.

12

On 30 th August, 2018, the FRSA lodged a claim with the Tribunal. The jurisdiction of the Tribunal arises under Article 22 of the Public Relations Law, which provides that proceedings may be brought before the Tribunal in respect of a “Collective employment dispute” at the request of any party to the dispute in the following circumstances:-

“(2) The circumstances to which this paragraph refers are

  • (a) that the body or person making the request considers that as far as is practicable all other available procedures have been applied unsuccessfully to seek to resolve the dispute; and

  • (b) that a party to the dispute is acting unreasonably in the way in which that party is or is not complying with an available procedure .”

13

Under Article 23 (1) and (2), in so far as it is relevant, the Tribunal may make a declaration as to whether any party to the dispute is not observing any relevant terms and conditions.

14

At the centre of this appeal is the definition of “Collective employment dispute” which is contained in Article 5:-

“5 “Collective employment dispute”

  • (1) In this Law, “collective employment dispute” means a dispute between one or more employers and one or more employees, where

    • (a) The employee or employees concerned are represented by a trade union;

    • (b) A collective agreement exists between the employer or employers and the trade union; and

    • (c) The dispute relates wholly or mainly to one or more of the matters described in paragraph (2) .”

  • (2) The matters to which this paragraph refers are

    • (a) the terms of employment of one or more employees;

    • (b) …”

15

It was not in dispute in this case that the employees concerned were represented by a trade union, namely the FRSA, and that a collective agreement existed between the SEB and the FRSA, namely the Fast Track Resolution Procedure, and so the requirements of Article 5(1)(a) and (b) were met. The central argument of the SEB is that this is not a dispute with it as employer, but with the States Assembly over the provisions of the CARE Scheme and that, in any event, this is not a dispute about terms and conditions or pay and does not come within the provisions of the Fast Track Resolution Procedure.

Decision of the Tribunal
16

Before the Tribunal, the SEB asserted that the dispute is not with the SEB, but with the States Assembly, because:-

  • (i) the root cause of the dispute is the FRSA's objection to the CARE Scheme;

  • (ii) it was the States Assembly, and not the SEB, which imposed the CARE Scheme;

  • (iii) the FRSA was seeking redress for perceived losses caused by the implementation of legislation; and

  • (iv) the States Assembly and the SEB are separate legal entities which cannot be “lumped together.”

17

The FRSA made it clear that:—

The FRSA sought monetary recompense from the SEB as the members' employer to offset the financial detriment which it claims its members will suffer, when their pensions provisions change.

  • (i) it accepted the CARE Scheme would come into effect for its members from 1 st January, 2019;

  • (ii) it did not seek to delay the implementation of the CARE Scheme;

  • (iii) it did not seek to change the CARE Scheme;

  • (iv) it did not seek any recompense from the CARE Scheme.

18

The Tribunal made this finding at paragraph 35:-

“Having considered both parties' submissions, the Tribunal rejected the SEB's assertion that the Dispute is with the States Assembly rather than with the SEB. To fall within the perimeter of the Article 5 Test, a dispute simply has to exist between employer and employee. In this case, the Dispute relates only to the attempt by the FRSA to secure monetary recompense from the Members' employer (the SEB). Thus, as soon as:

  • a) The FRSA made a claim for monetary recompense from the SEB; and

  • b) The SEB rejected that demand,

    a ‘dispute’ existed between the parties. The root cause of the Dispute (i.e. Implementation of CARE by the States Assembly) is not relevant for the purposes of the Article 5 Test.”

19

The Tribunal then considered whether...

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