IN THE EMPLOYMENT AND DISCRIMINATION TRIBUNAL
IN THE MATTER:
FIRE AND RESCUE SERVICE ASSOCIATION
STATES EMPLOYMENT BOARD
Reference:  TRE 133
Hearing Date: 14
H G Griffin, Chairman
S Cross and Mrs E Harper, Panel Members
For the Claimant: Mr
B King, Prospect
For the Respondent: Mr
J Goudie QC, 11 Kings Bench Walk
failed to observe the terms and conditions of a collective agreement which was
relevant to a dispute between the Claimant and the Respondent.
By a claim form presented on 4 September 2018, the
Claimant made an application to the Tribunal (“Application”) under
the provisions of the Employment Relations (Jersey) Law 2007
The Application was brought by the President of the
Fire and Rescue Service Association (“FRSA”) on behalf of those
members of the FRSA who were employed by the Respondent (“SEB”)
before 1 January 2016 (“Members”).
The FRSA seeks a declaration from the Tribunal that
the SEB has acted (and continues to act) “unreasonably” by failing
to comply with an agreed procedure for the resolution of disputes which is
contained in a collective agreement between the FRSA and the SEB dated 2010
The SEB contests the Application.
On the basis of the claim and response forms
presented by the parties, the Chairman issued case management orders on 18
October 2018 (“Orders”) [p31-37]. The Orders identified the following
issues to be determined by the Tribunal (“Issues”):
Is the dispute between the parties a
“collective employment dispute” under the provisions of Article 5
ERJL (“Article 5 Test”)?
In this regard, the Tribunal will consider:
whether the employees concerned are represented by
a trade union;
if so, whether a collective agreement exists
between the trade union and the SEB; and if so,
whether this dispute relates to the terms of
employment of one or more employees.
If this is a “collective employment
dispute”, does the Tribunal have jurisdiction to hear the case under the
provisions of Article 22 ERJL (“Article 22 Test”)? In this regard, the Tribunal will
whether there is an “available
procedure”; and if so,
whether the SEB “unreasonably” refused
to comply with such “available procedure” by refusing to proceed to
Under the provisions of their individual contracts
of employment [p114-119], Members are currently entitled to participate in the
existing public sector pension scheme known as the “Public Employees
Contributory Retirement Scheme” (“PECRS”).
Following a lengthy consultation period, the States
Assembly passed legislation to replace PECRS with a new public sector pension scheme
known as the “Career Average Revalued Earnings Pension Scheme”
CARE came into effect from 1 January 2016 for those
public sector employees (including fire-fighters) who commenced employment with
the SEB from that date (“New Employees”). For those public sector employees
(including fire-fighters) who were employed before 1 January 2016 (“Old
Employees”), CARE will come into effect on 1 January 2019. Members’ pension provisions will
therefore transfer from PECRS to CARE on 1 January 2019.
The FRSA claims that CARE will result in a
detriment to Members as they will be required to pay increased contributions
and will receive reduced benefits. The FRSA therefore seeks monetary
recompense from the SEB (as the Members’ employer) to offset the
reduction in income which it claims Members will suffer when their pension
provisions change from PECRS to CARE (“Dispute”).
The FRSA made it clear (both at the Hearing and in
correspondence with the SEB between April and October 2018) that it:
accepts that CARE will come into effect for Members
from 1 January 2019;
does not seek to delay the implementation of CARE;
does not seek to change the CARE legislation; and
does not seek any recompense from the CARE pension
The Tribunal did not hear submissions on the extent
to which the change from PECRS to CARE may or may not impact Members and it
makes no finding in this regard.
Nor did the Tribunal consider the merits of the Dispute.
FRSA’s Application to the Tribunal
The FRSA submits that the Dispute is one which
falls within the scope of a ‘fast track resolution procedure’ (or
“FTRP”) which is contained in the Collective Agreement. The SEB has refused to comply with the
FTRP (for reasons which are set out below).
In the Application, the FRSA seeks a declaration
from the Tribunal that the SEB has failed to comply with the FTRP.
The SEB does not dispute that it has failed to
comply with the FTRP but submits that it is not required to do so in the
particular circumstances of the Dispute.
The FRSA and the SEB entered into the Collective
Agreement in 2010 [p106-113] and the parties remain subject to its terms. The Collective Agreement includes a
‘no impairment of service’ clause (or “NISA”) [p109] which
precludes Members from taking strike action in disputes with their
employer. The NISA is considered by
the SEB to be necessary because fire-fighters are deemed to provide an
essential public service.
In return for fire-fighters’ agreement to
waive their right to strike under the NISA, the SEB agreed to the FTRP
[p111-112], the aim of which was to provide a procedure which both parties
would follow to resolve disputes which, in the absence of the NISA, could lead
strike action by fire-fighters.
The relevant paragraphs of Section 3 of the
Collective Agreement [p109] provide as follows:
3 - Collective Procedure
purpose of this agreement is to set down a framework for the discussion of
issues, whether proposed by Management or by the FRSA/ACTSS
which involve those aspects of pay, [sic] terms and conditions of service of
Fire and Rescue Service's staff represented by the FRSA/ACTSS that are subject
to negotiated outcomes as covered by Section 1 of the Terms & Conditions
is the aim of this agreement to allow for discussions between the two parties
on the exploration of proposals and any differences that may exist. It provides
the opportunity for each party to modify the views of the other. Both parties
are committed to engaging in open discussions with the aim of establishing
common ground. For negotiations (items under Section 1 of the Terms and
Conditions Agreement), the parties are committed to operating the procedures
described in Section 4 – Fast Track Procedure for the Resolution of
Disputes. However, this does not apply in the case of issues of consultation
(items under Section 2 of the Terms and Conditions Agreement), over which
management are required to seek and consider the views of staff and the
FRSA/ACTSS but are not required to negotiate them.
Impairment of Service
FRSA and its members will not at any time take any industrial action/actions
which impairs or may impair the service provided by the [Fire and Rescue
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."
The relevant paragraphs of Section 4 of the
Collective Agreement [p110-112] provide as follows:
“Section 4 - Fast Track Procedure for the
Resolution of Disputes
following general principles are accepted as paramount:
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 & 6 of this agreement must be
followed. The Chief Fire Officer (or his nominee), a representative of the
Employment Relations Section, States Human Resources Department, Staff Side
Secretary, Fire Service Association, ACTSS (or his nominee) and the President
of the FRSA must be involved at all stages of the procedure. [emphasis not added]
One – Service Management Level.
The matter will be referred to the Chief Fire
Officer (or Nominee Principal Officer) for resolution
2 Stage Two – Department Management
Failing agreement at Stage I, the parties will,
within one further week, identify precisely the issue(s) of disagreement by way
of a written statement and formally register this disagreement with the Chief
Officer of Home Affairs (or his nominee), the Chief Fire Officer (or Nominee),
the Head of Employment Relations (or Nominee) the Staff Side Secretary, Fire
Service Association, ACTSS, and the President of the FRSA who will meet within
one further week with the intention of resolving the dispute. At this meeting,
it will be expected that officers from each side of the dispute will attend in
order to verbally supplement their respective written cases.
In the event that this meeting fails to resolve the
dispute, the matter will be referred to Stage 3 of the procedure.
Note: If, for any reason, either
party refuses to participate in Stage 1 or Stage 2 of the procedure, the other
party may refer its statement and supporting case unilaterally to Stage 3
Three – States Employment Board
Within two weeks following the failure to agree,
the matter will be referred to the States Employment Board who will consider
the matter at its next meeting (or at a specially generated meeting if
necessary). At this meeting, the President of the Fire & Rescue Service
Association (or Nominee) will be provided with an opportunity to present their
case with a view to seeking a resolution.
In the event that reference to the States
Employment Board fails to produce a negotiated resolution, the procedure will
move on to Stage Four below.
Four – Conciliation/Mediation – Arbitration
The matter may be referred to
conciliation/mediation held under the auspices of the Jersey Advisory &
Conciliation Service (JACS). In the event that after conciliation/mediation the
dispute remains unresolved, the matter may be unilaterally referred to
arbitration organised by, and under the auspices of, JACS. The result of the
arbitration will be binding on both parties.
all stages of the procedure, normal service levels will remain in place.…”
and Conditions of Service Agreement
The Tribunal was only provided with Section 1 of
the Terms and Conditions of Service Agreement (“Terms and Conditions
Agreement”) [p121-131] (to which the Collective Agreement refers in
Section 3 and Section 4). The issue
of ‘pay’ falls within Section 1 of the Terms and Conditions
Agreement [p122]. Consequently,
disputes which relate to ‘pay’ are considered to be the ‘subject of negotiated outcomes’
under Section 3 of the Collective Agreement. The parties did not provide a copy of
Section 2 of the Terms and Conditions Agreement. According to Section 3(3) of the
Collective Agreement, Section 2 of the Terms and Conditions Agreement relates
to issues of consultation (in contrast to Section 1 which relates to issues
which are the “subject of
alleged breaches of the FTRP
The FRSA asserts that the SEB breached the
following provisions of the FTRP:
that, in breach of Stage 3 of the FTRP, the SEB
failed to provide the President of the FRSA with the opportunity to present the
FRSA’s case at the relevant SEB meeting. The SEB did not invite the FRSA
President to attend that meeting; and
that, in breach of Stage 4 of the FTRP, the SEB
refused to agree to the dispute being referred to binding arbitration.
The ERJL sets out the process which a tribunal must
follow if asked to issue a declaration (or an order) relating to a
“collective employment dispute”.
A “collective employment dispute” is
defined under Article 5 ERJL (“Article 5 Test”) [p38-39]. For the purposes of the Application, the
following sections of Article 5 are relevant:
5 “Collective employment
this Law, "collective employment dispute" means a dispute between one
or more employers and one or more employees, where –
employee or employees concerned are represented by a trade union;
(b) a collective agreement exists between the
employer or employers and the trade unions; and
(c) the dispute relates wholly or mainly to
one or more of the matter is described in paragraph (2).
(2) The matters to which this paragraph refers are
(a) the terms of employment of one or
Once it has been established that the issue in
question relates to a "collective employment dispute, a tribunal must then
consider the provisions of Part 4 Article 22 ERJL (“Article 22
Test”) to determine whether it has jurisdiction to determine the issues
Article 22 ERJL provides as follows:
22 Jurisdiction in respect of
collective employment disputes
may be brought before the Jersey Employment Tribunal in respect of a collective
the consent of each party to the dispute; or
the request of any party to the dispute, in the circumstances described in paragraph
(2) The circumstances to which this paragraph
refers are –
the body or person making the request considers that as far as is practicable
available procedures have been applied unsuccessfully to seek to resolve the dispute;
a party to the dispute is acting unreasonably in the way in which that party is
or is not
complying with an available procedure.
(3) For the purposes of paragraph (2), a
procedure is an available procedure if –
(a) it is
a procedure for the resolution of the dispute that is contained in a collective
contract of employment or a relevant handbook for employees;
(b) it is
a procedure for the resolution of the dispute in accordance with an approved
(c) it is
a procedure for the resolution of the dispute that is otherwise established
within the trade
or industry concerned by this Law or any other Law.
(4) In deciding whether or not a party to the
dispute is acting unreasonably in the way in which that party is or is not
complying with an available procedure in a relevant handbook for employees,
regard shall be had to whether or not the handbook has been agreed by or on
behalf of the parties to the dispute, but this paragraph does not limit the
generality of paragraph (2)(b).
If the Tribunal determines that it has
jurisdiction under the Article 22 Test, it may then either issue an order or a
declaration in accordance with the provisions of Article 23 ERJL. In this instance, under the provisions
of Article 23 ERJL, the Tribunal may only issue a declaration (and not an
order) because the Application has been made without the SEB’s consent.
In accordance with Article 25 ERJL, the
Social Security Minister issued Codes of Practice (“Codes”) to
supplement the ERJL [p60-73]. The Tribunal may take the Codes into account in
determining any question arising in proceedings before it [p60].
Code 3 [p71-73] relates to the resolving
of collective employment disputes.
The parties did not refer the Tribunal
to the Codes during their oral submissions, but the Tribunal considers the
following paragraphs to be instructive in relation to what constitutes ‘unreasonable
“Code 3 – Resolving
3. Many recognition
agreements provide specific procedures to be followed in the case of a
‘failure to agree’ or in the event of some other disputes
arising. Where such agreement
exists both sides must take all reasonable steps to complete that procedure
before taking any action in respect of the dispute. Failure to follow an agreed procedure
will be regarded as unreasonable conduct.”
Is this a ‘collective employment
In response to specific questions by the
Tribunal, Mr Goudie acknowledged that the first two limbs of the Article 5 Test
are satisfied in that:
Members are represented by a trade union; and
collective agreement exists between the SEB and the FRSA.
However, the SEB asserts that the
Dispute is not a ‘collective employment dispute’ because the third limb
of the Article 5 Test (ie. whether or not the Dispute relates
“wholly or mainly” to the terms of employment) is not satisfied.
The Tribunal noted that the SEB’s
written submissions (filed before the Hearing) suggested that the FRSA was not
a party to the FTRP. In the absence
of any detailed submissions on this point, the Tribunal rejects this argument,
not least because the drafting of the Collective Agreement (including the FTRP)
is clear in its intention that the FRSA be a party to its provisions.
Dispute with the SEB or with the States Assembly?
The SEB asserted that the Dispute cannot
be a ‘collective employment dispute’ because Article 5 provides
that a collective employment dispute must be “between one or more employers and one or more employees”.
The SEB asserted that the Dispute is not
with the SEB but with the States Assembly because:
a) the root
cause of the Dispute is the FRSA’s objection to CARE;
b) it was
the States Assembly and not the SEB which imposed the CARE scheme;
c) the FRSA
is seeking redress for perceived losses caused by the implementation of
States Assembly and the SEB are separate legal entities which cannot be ‘lumped together’.
The FRSA asserted that the Dispute is
with the SEB and not with the States Assembly because (as set out in paragraph
10 above) the FRSA does not seek to delay the implementation of CARE and accepts
that it will come into force on 1 January 2019. The FRSA asserted that it is “within the gift” of the SEB to
resolve the Dispute.
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
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 (ie. implementation of CARE by the States
Assembly) is not relevant for the purposes of the Article 5 Test.
recompense sought by the FRSA constitute ‘pay’ for the purposes of
the FTRP and/or does it constitute an issue which is the ‘subject of negotiated
The Tribunal considered both
parties’ submissions (both written and oral) on the question of whether
the FRSA’s claim for monetary recompense constitutes ‘pay’
under the Terms and Conditions Agreement.
The FRSA asserted that the claim for
monetary recompense amounts to a claim for an increase in “pay”. By contrast, the SEB asserted that the
Dispute does not fall within the scope of the FTRP on the following grounds:
claim for recompense is ‘misconceived’
because the Dispute is an on-going pension dispute (with the States Assembly)
rather than a pay dispute (with the SEB).
The recompense sought by the FRSA therefore cannot constitute
‘pay’ under Section 1 of the Terms and Conditions Agreement;
correspondence, the FRSA identifies the Dispute as relating to “compensation for loss” arising
from the introduction of CARE and not relating to “pay” [p141-142]. The SEB asserts that “compensation”
is not the same as “pay”; and
implementation of CARE (and consequently any alleged losses suffered by
Members) was the product of a consultation process and was not therefore the
“subject of negotiated outcomes”
as required under the FTRP.
The Tribunal carefully considered all
written and oral submissions and carefully considered the Article 5 Test. It
was clear to the Tribunal from the submissions that the FRSA is seeking monetary
recompense (either by way of an increase in hourly rate of pay or by way of a
lump sum payment) from the Members’ employer (the SEB). The cause of the Dispute was the
implementation of the CARE legislation.
However, (and as stated previously), for the purposes of the Application
the Tribunal does not accept that the cause of the Dispute is a relevant
consideration when applying the Article 5 Test.
During the Hearing, the parties used various
words to describe the FRSA’s claim, including “compensation”,
“pay” and “recompense”. The parties may seek to attach any label
they want to the FRSA’s claim, but the Tribunal makes a finding of fact
that the Dispute relates to Members seeking monetary recompense from their
employer. It appears to the
Tribunal that once it has been established that the Dispute is:
the SEB (as the employer): and
b) is for
the Dispute can only be a
“pay” dispute and it cannot be a dispute of any other nature when
the Dispute exists because employees (the Members) are seeking more money from
their employer (the SEB).
Furthermore, the SEB’s assertion (that
the Dispute is not the “subject of
negotiated outcomes” because there was a consultation) cannot succeed
if the Dispute is with the SEB rather than with the States Assembly. The FTRP is a procedure which the FRSA
and the SEB agreed between themselves.
Consequently, references in the Collective Agreement to
“consultation” and “negotiated outcomes” relate only to
the resolution of disputes between the FRSA and the SEB; they do not relate to
disputes which fall outside that relationship. Therefore, the fact that there was a
consultation before the implementation of CARE is not relevant to the question
of ‘negotiated outcomes’ because of the Tribunal’s finding of
fact that the Dispute is with the SEB and not with the States Assembly.
Accordingly, the Tribunal is satisfied
that this is a “pay” dispute which is the subject of “negotiated
outcomes” under the provisions of Section 1 of the Terms and Conditions
Is the Tribunal stepping outside its jurisdiction?
The Tribunal does not accept Mr Goudie’s
Application “trespasses into the
providence of the legislature”; and
b) for the
Tribunal to make a declaration would amount to a “constitutional outrage” because it would “thwart and frustrate the will of the
This is a dispute between employees and
their employer and the original cause of that dispute (ie. the States Assembly’s implementation of CARE) is not
relevant to the Application. It is
not for the Tribunal to consider anything beyond that which is provided by the
Article 5 Test. The
Tribunal’s jurisdiction is to consider the Application within the
confines of the ERJL.
43. On this basis the Tribunal is satisfied
that the Dispute falls within the provisions of Article 5 ERJL and that,
consequently, the Dispute is a “collective employment dispute”.
Article 22 Test
Having established that the Dispute is a
‘collective employment dispute’, the Tribunal must then apply the
Article 22 Test (ie. is there an “available procedure” and, if so,
was the SEB unreasonable in failing to comply with it?)
Is the FTRP an “available
The Tribunal considered whether the FTRP
is an “available procedure”
as required under Article 22. The
Tribunal was satisfied that there is an “available procedure” on the following grounds:
addressed above, the Dispute is one which
relates to “pay” and is the “subject of negotiated outcomes”. It therefore falls within the scope of
the FTRP; and
b) the FTRP
is clear and unambiguous (Maindonald v
States Employment Board 147/2010).
For the reasons stated in paragraph 31
above, the Tribunal rejected the SEB’s assertion that the FRSA is not a
party to the FTRP.
Is the SEB’s behaviour
The SEB did not challenge the
FRSA’s assertion that, in accordance with Article 22(2)(a), the FRSA had exhausted
all other procedures before making the Application
Therefore, having established that there
is an “available procedure”,
the Tribunal is only required to consider whether the SEB acted ‘unreasonably’ in the way in which
it failed to comply with the FTRP by (as set out in paragraph 20 above):
to provide the President with the opportunity to present the FRSA’s case
to the SEB meeting; and
to agree to the dispute being referred to binding arbitration.
The SEB made written submissions as to
why its conduct was not unreasonable [p6-7] and augmented those submissions at
the Hearing. The SEB submitted that
Article 22(4) [p55] supports the assertion that the Tribunal should interpret
Article 22(2) widely.
In summary, the SEB’s submissions
as to why the SEB did not act unreasonably are:
content and implementation of CARE is a legislative matter for the States
b) the States
Assembly cannot be bound by arbitration and the SEB cannot be liable to
compensate or indemnify Members for a legislative decision;
c) it would
be constitutionally inappropriate for the SEB to agree to binding arbitration;
d) the SEB
has no power to delegate policy relating to pensions to an arbitrator;
are possible wider consequences if a small group of public sector workers
“receive a pay rise” when
others do not. This could lead to a
‘tsunami’ of claims and
could place CARE in jeopardy;
CARE was the subject of extensive
consultation and the proposals were agreed by all unions other than FRSA;
Members constitute approximately 1% of the entire workforce, being only 33
fire-fighters out of a total membership of the relevant pension scheme which is
approximately 9000. A successful claim would “raise the very real
spectre of unravelling CARE”
already has legislative force, having come into force for New Employees on 1
January 2016; and
SEB is not in breach of the Collective
The Tribunal considers it relevant that
the General Principles under Section 4(a) of the FTRP specify that
disagreements which involve pay “must”
be resolved through the FTRP. The
Tribunal considers the drafting of Section 4(a) to be clear and unambiguous.
As required under Article 26 ERJL, the
Tribunal also considered whether the relevant Code of Practice [p60-73] is
relevant in determining whether the SEB’s behaviour was
unreasonable. In this regard, the
Tribunal noted that the Code of Practice states as follows:
to follow an agreed procedure will be regarded as unreasonable conduct.”
Having considered both parties’
submissions, the Tribunal concluded that it was not the intention of the States
Assembly that the Tribunal should make expansive decisions as to the potential
consequences of a successful application under the FTRP. The Tribunal therefore rejected all of
the submissions which the SEB made (which are summarised in paragraph 50 above)
with regards to whether or not its behaviour was “unreasonable”.
The Tribunal is satisfied that a party
to an “available procedure”
under Article 22(b) ERJL simply by failing to comply with that available
procedure unless there are procedural reasons for that failure (eg. the other
party has not exhausted earlier stages of the “available procedure”).
The SEB’s fears that by following the FTRP:
may be unpalatable consequences; or
b) a small
percentage of the workforce may be treated differently,
are not acceptable grounds to refuse to
engage in the agreed procedure.
Consequently, the Tribunal concludes
that the SEB acted unreasonably by failing to comply with the FTRP (as outlined
in paragraph 20 above).
In accordance with
Article 23(1)(b) ERJL, the Tribunal HEREBY DECLARES that the SEB has failed to
observe the provisions of the FTRP, which is an “available
procedure” under Article 22 ERJL and which forms part of the terms and
conditions of the Collective Agreement.
Mrs H G Griffin, Chairman Date: 4