Jersey Unreported Judgments

Court of Appeal - reasons for allowing this appeal.

[2020]JCA020A

Court of Appeal

30 January 2020

Before     :

Mr James McNeill, Q.C., President: Mr John Martin, Q.C., and Sir Wyn Williams

 

Advocate S. M. Roberts for the Appellant.

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

judgment

Martin JA:

1.        These are the Court's reasons for allowing this appeal, as we did by Act of Court dated 30 January 2020.

2.        On 18 April 2019 the Royal Court (Commissioner Clyde-Smith, sitting alone) dismissed (States Employment Board v Fire and Rescue Service [2019] JRC 067) an appeal by the States Employment Board ("the SEB") from a decision of the Employment and Discrimination Tribunal ("the Tribunal") declaring that the SEB had failed to implement the provisions of an available procedure to resolve a collective employment dispute.  The SEB appealed to this court. 

3.        In essence, the issue on the appeal was whether or not a claim by employees against their employer for financial compensation to offset the adverse effects of a legislative revision to a pension scheme is a claim for "pay" so as to be subject to a dispute resolution procedure agreed between them. 

4.        The SEB is a body corporate established under article 4 of the Employment of States of Jersey Employees (Jersey) Law 2005 for the purpose (among other things) of employing persons on behalf of the States of Jersey.  Such employees include those working in the Fire and Rescue Service. 

5.        The respondent, the Fire and Rescue Service Association ("the FRSA"), is a trade union representing members of the Fire and Rescue Service employed by the SEB.  For reasons explained in paragraph 13 below, it is only those members of the FRSA who were employed by the SEB before 1 January 2016 who are affected by these proceedings.  According to the SEB, such persons number 58 out of the SEB's 6771 employees as at 1 January 2019.  According to the FRSA, 32 of its members are particularly affected. 

6.        In 2010, the SEB and the FRSA entered into a written No Impairment of Service Agreement ("the NISA", a term we use to identify the entirety of the agreement, not just the clause within it dealing with impairment of service).  Under that agreement, the FRSA and its members agreed that firefighters would not at any time take any industrial action which would or might impair the service provided by the Fire and Rescue Service.  In return, each whole-time firefighter was to receive a non-pensionable lump sum payment of £6000, and the SEB and the FRSA agreed to operate the terms of a Fast Track Resolution Procedure ("the FTRP"). 

7.        The provisions of the NISA, and in particular of the FTRP, are at the heart of these proceedings.  The provision that is primarily relevant to this appeal is the first of a number of principles, accepted by the parties as paramount, set out in section 4.  It is in the following terms:

"Where disagreements involve pay, and items covered by Section 1 of the Terms & Conditions Agreement ["the TCA"] 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 procedure itself involves an attempt to resolve a dispute in various stages, culminating in binding arbitration.

8.        Other relevant provisions are as follows.

(a) Section 1 sets out a statement of principles applicable to industrial relations in the Fire and Rescue Service, including a joint commitment to the provision of a consistently reliable and professional service and a joint commitment "to the development of a working environment which both recognises the right of managers to manage and acknowledges the legitimate and valuable role of the FRSA in discussing matters affecting pay and terms and conditions of service".

(b) Paragraph 1 of section 2 states that the SEB and the FRSA agree "that forward looking consultation and negotiation processes which promote the strategic involvement of the Association in all matters affecting pay, terms and conditions of service, staff welfare and health and safety are in the interests of Fire and Rescue Service, its staff and stakeholders". 

(c) Paragraph 2 of that section provides for the formation of a Strategic Consultation Group ("the SCG"), containing representatives of management and of the FRSA Executive Committee. The group, whose overarching priority is stated to be to provide a formal, recognised and respected mechanism for communication and information sharing, is stated to have roles which include the provision of a forum for negotiation on matters affecting conditions of service for FRSA members covered under section 1 of the TCA, the provision of a forum to discuss legislation changes affecting Fire and Rescue Service employees, and the provision of a forum to discuss organisational change and future plans affecting employees and having industrial relations implications. It is stated that matters of pay will not be part of the role of the Group, such issues being dealt with by representatives of the SEB, the FRSA and management at separate meetings. It is also stated that the SCG will not form part of the FTRP. 

(d) Paragraph 1 of section 3 contains a joint commitment "to the creation and maintenance of positive and constructive industrial relations in the interests of the service, stakeholders and staff".

(e) Paragraph 2, 3 and 4 of the same section are, so far as relevant, in the following terms:

"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 [TCA]. 

3. It 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 [TCA]), 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 [TCA]), over which management are required to seek and consider the views of staff and the [FRSA] but are not required to negotiate them. 

4. 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." 

9.        Section 1 of the TCA sets out provisions relating to fifteen aspects of a firefighter's employment.  They are representation rights; working hours; pay; pension; career progression; payment of salaries; annual pay review; significant changes in job content; extended or additional duties; additional specialist instruction/reference duties; proclaimed and statutory holidays; annual leave entitlement; sickness and accident leave; medical and dental services; and periods of notice.  Clause 2.1 provides that the FRSA will represent members of the Fire & Rescue Service of all ranks, up to and including Group Commander, in matters affecting their pay and terms and conditions of service, other than promotion affecting individuals.  Pay is dealt with by clause 4.1 which states that "Current rates of pay are maintained in accordance with published rates agreed between the Employer and Employee Representatives".  Clause 5 deals with pensions, stating that uniformed posts in the Service are pensionable from the day that a member takes up his/her duties and that pension entitlement is based on one of two identified Regulations. 

10.      During the course of the hearing before us, we were handed Section 2 of the TCA, which had not been before the Tribunal or the Royal Court. It states merely that "changes to [specified Service Orders] will be subject to consultation with [the FRSA] but will not be subject to a negotiated outcome".  One of the specified Service Orders relates to "Payment For Attendance Outside Of Duty Hours", which might perhaps be taken to indicate that certain aspects of pay were intended to fall outside the provisions of the FTRP; but neither party suggested that Section 2 had any relevance, and we do not have regard to it on issues of construction or otherwise. 

11.      It is to be noted at this stage that the FTRP applies only to disagreements about pay and about items referred to in section 1 of the TCA "that are subject to negotiated outcomes", which plainly means disputes that are susceptible to resolution by negotiation between the SEB and the FRSA:  see section 4 of the FTRP (paragraph 7 above), and the distinction between negotiations and issues of consultation mentioned in paragraph 3 of section 3 of the FTRP (paragraph 8(e) above). It is common ground between the parties that disagreements about pay (as well as being specifically mentioned) are capable of negotiation between the SEB and the FRSA, but disagreements about pension provision are not (since public service pension provision is a matter for legislation). 

12.      Changes in public service pension provision have given rise to these proceedings.  Public sector employees are entitled to membership of a contributory pension scheme known as the Public Employees Contributory Retirement Scheme.  Until recently, this was a final salary scheme; but by the Public Employees (Pension) (Jersey) Law 2014 ("the 2014 Law") the basis of calculation of pensions was changed from a calculation based on an average of the member's salary for the last three years of employment to a calculation based on the member's career average revalued earnings.  The revised scheme, known as the CARE scheme, was preceded by consultations with unions and bodies representative of public sector employees, all of which apart from the FRSA agreed to the revisions. 

13.      The CARE scheme took effect for new public sector employees from 1 January 2016 and for existing employees from 1 January 2019.  It is less beneficial to all public employees than the previous scheme, requiring increased employee contributions and later retirement and using a less favourable basis of computation.  The FRSA contends that the change is particularly detrimental to those of its members who were in service before 1 January 2016, especially those with long service. 

14.      The FRSA initially tried to persuade the SEB to amend the terms of the CARE scheme, but now recognises that it is not within the SEB's power to amend legislation.  Instead, it has sought compensation from the SEB for the financial detriment caused to its members by the introduction of the CARE scheme.  Its aim, as expressed in a letter dated 3 April 2018, is that "FRSA members should be no worse off in terms of their pension provision or the cost to them of such provision after the changes to the legislation, [than] they were before that change was imposed".

15.      The SEB has refused to provide compensation.  The FRSA claims that the refusal gives rise to a dispute between it and the SEB, and that the dispute is subject to the FTRP.  

16.      On 20 August 2018 the FRSA commenced proceedings in the Tribunal seeking a declaration that the SEB had acted unreasonably in refusing to operate an available procedure, namely the FTRP, in relation to the dispute.  The Tribunal's jurisdiction was invoked on the basis that there was a collective employment dispute relating to the terms of employment of those represented by the FRSA within the meaning of articles 5 and 22 of the Employment Relations (Jersey) Law 2007 ("the 2007 Law"). This was and is disputed by the SEB.

17.      The Tribunal's decision was expressed in a judgment dated 4 December 2018 (Fire and Rescue Service Association v States Employment Board [2018] TRE 133).  The key parts of that judgment are as follows:

"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."

"39     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 the Members seeking monetary recompense from their employer. It appears to the Tribunal that once it has been established that the Dispute is:

(a)       against the SEB (as the employer): and

(b)       is for monetary recompense,

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).

"41.    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 Agreement".

"54.    The Tribunal is satisfied that a party to an "available procedure" behaves "unreasonably" under Article 22(b) of the [2007 Law] simply by failing to comply with that available procedure unless there are procedural reasons for that failure (e.g. the other party has not exhausted earlier stages of the "available procedure"). The SEB's fears that by following the FTRP:

(a)       there 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".

18.      By article 94 of the Employment (Jersey) Law 2003, an appeal from a decision of the Tribunal lies to the Royal Court with the leave of the Tribunal or (if the Tribunal refuses leave) of the Royal Court "on a question of law only".  In the present case, the Tribunal refused leave but the Royal Court granted it. 

19.      The crux of the Royal Court's judgment (States Employment Board v Fire and Rescue Service [2019] JRC 067) giving reasons for dismissing the appeal lies in paragraphs 41 to 53.  In paragraph 41, the Commissioner held that the Tribunal was entitled on the evidence before it to conclude as a matter of fact that the dispute related to the members seeking monetary recompense from their employer; indeed, it was difficult to see what other conclusion could have been reached.  In paragraph 43, the Commissioner agreed with the Tribunal's view that the original cause of the dispute, namely the implementation of the CARE scheme, was not relevant.  In paragraph 44, the Commissioner identified the question as being whether the dispute related to "pay" for the purposes of the FTRP; and he went on to say this: 

"48.    There is nothing that I can see in the Fast Track Resolution Procedure to indicate that the word "pay" should be narrowly construed. I note, for example, that under Section 2 it establishes a strategic consultation group "to provide a formal, recognised and respected mechanism for communication and information sharing" over a wide range of roles other than pay. Under Section 3 headed "Achieving agreements" and the sub-heading "Collective procedure", paragraph 2, which I have already set out above, provides:-

"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 & Conditions Agreement."

49.      Paragraph 4 (also set out above) refers to the Fast Track Resolution Procedure having been developed to settle "collective differences", a very broad term.  The SEB argues that the word "pay" is a term of art, which is defined in Section 1 paragraph 4 of the Terms & Conditions Agreement.  Paragraph 4 simply states under the heading "Pay" that "Current rates of pay are maintained in accordance with public (sic) rates agreed between the employer and the employee representatives." That is not a definition but a statement as to the current rates agreed from time to time. 

50.      To suggest that the word "pay", which is used separately in Section 4(a) of the Fast Track Resolution Procedure, cannot extend to claims for recompense for the detriment the members claim following the introduction of the CARE Scheme, is to place a very restrictive interpretation upon it, which is not warranted in the context of the Fast Track Resolution Procedure as a whole. "Pay" is simply the amount that an employer pays an employee for services rendered. "To Pay" is defined in the Shorter Oxford English Dictionary as "to recompense or reward a service". Recompense is a synonym for pay. The amount of pay or recompense of an employee is inherently something that is susceptible to a negotiated outcome.

51.      I do not accept the criticism that the Tribunal's analysis contained in paragraph 35 of its decision is too simplistic. To repeat:-

"Thus, as soon as:

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

d)        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."

52.      The Fast Track Resolution Procedure is not a complicated agreement. In return for the Firefighters agreeing not to take industrial action, the SEB agreed that all disagreements over pay that are subject to negotiated outcomes "must" follow the procedure, a procedure that leads to binding arbitration. It does not matter how the disagreements arise or whether they come about for internal or external factors; if there is a disagreement over pay, the procedure applies. In this case there is a disagreement over pay."

20.      An appeal lies to this Court in the ordinary way under Article 12 of the Court of Appeal (Jersey) Law 1961; but, because the appeal from the Tribunal to the Royal Court was capable of being brought only on a question of law, this Court should interfere only if it is satisfied that the Royal Court was wrong to hold that the Tribunal had not erred in law.  A similar approach appears to have been adopted by this Court in JT (Jersey) Limited v Wood [2016] (2) JLR 293 at [21 - 24].  In the same passage the Court approved the following description of what is a question of law given by the Royal Court (Birt, DB) in Voisins Dept Store Ltd v Brown [2007] JLR 141 at [18]: 

"The [court] will have no power to interfere with a tribunal's decision unless it can be shown: (a) that the tribunal misdirected itself in law or misunderstood the law or misapplied the law; or (b) that there was no evidence to support a particular conclusion or finding of fact; or (c) that the decision was either perverse in that it was one which no reasonable tribunal, directing itself properly on the law, could have reached, or alternatively, was one which was obviously wrong...".

The Court of Appeal commented that the Royal Court had subsequently determined that an appeal would lie on ground (c) only where the tribunal's decision could be shown to be so unreasonable that no reasonable tribunal could have made it, with the effect that an appeal on the point of law would not lie where all that was said was that the decision of the tribunal was obviously wrong unless it could also be said that the decision was perverse; and the Court then said this:

"Before us there has been no challenge made to this high threshold. It is understandable that the threshold should be high as an appeal to the Royal Court is not a rehearing of the case presented to the tribunal (albeit without the benefit of hearing the live evidence as it was heard by the tribunal), and further the tribunal will include non-legal members appointed for their practical experience and judgment. The tribunal is the fact-finding industrial jury".

21.      In the present case, the Commissioner made reference to these principles (paragraphs 28 - 31), and there is no suggestion that his approach was wrong. 

22.      The SEB appealed to this Court by Notice of Appeal dated 15 May 2019.  It appeals on the basis of assertions that there was no collective employment dispute within the meaning of articles 5 and 22 of the 2007 Law, that it did not fail to comply with an available procedure for the purposes of article 22 of the 2007 Law, and that it did not act unreasonably for the purposes of article 23 of the 2007 Law.  Its grounds of appeal supporting these assertions may be summarised as follows:

(1)       The Royal Court erred in holding that the Tribunal was correct to find that the original cause of the dispute, namely the introduction of the CARE scheme, was not relevant for the purposes of article 22 of the 2007 Law;

(2)       The Royal Court erred in holding that the dispute related to terms of employment rather than to the implementation of the CARE scheme. It should have held that the dispute was not a "pay" dispute;

(3)       The Royal Court erred in particular by (i) holding that the term "pay" was not a term of art for the purposes of the FTRP; (ii) determining that the word "pay" could be extended to claims for monetary recompense; and (iii) finding that there was a dispute concerning "pay";

(4)       Further or alternatively, the Royal Court erred in holding that the Tribunal's decision did not trespass on the jurisdiction of the legislature; it should instead have found that upholding the Tribunal's decision would stifle and/or render nugatory the 2014 Law.

All these errors are categorised by the SEB as errors of law.

23.      It is necessary at this point to set out the relevant parts of the 2007 Law.

23.1         Article 5 is in the following terms (so far as material):

(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...".

23.2         Article 22 in material part is as follows:

"(1) Proceedings may be brought before the Jersey Employment Tribunal in respect         of a collective employment dispute -

(a)        with the consent of each party to the dispute; or

(b)        at the request of any party to the dispute, in the circumstances described in paragraph (2).

(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.

(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 agreement...".

22.3    Article 1(1) defines a "collective agreement" to mean "an agreement that has been settled by machinery of negotiation, mediation, conciliation or arbitration to which the parties are -

(a)        an employer, or an organization of employers that is representative of a substantial proportion of the employers engaged in the trade or industry concerned; and

(b)        employees who are representative of a substantial proportion of the employees engaged in the trade or industry concerned;

22.4         Article 23 in material part is as follows:

"(1)     On hearing proceedings in respect of a collective employment dispute that are brought before the Tribunal, it may make -

(a)        with the consent of each party to the dispute, an order that is binding on the parties; or

(b)        a declaration.

(2) A declaration under paragraph (1) may relate to any of the following things -

(b)        the interpretation of any terms and conditions of a collective agreement that are relevant to the dispute".

24.      The SEB's contentions were, in summary, as follows:

(1)       Properly understood, the FRSA's dispute was with the legislature, not with the SEB.  The Tribunal had found as a matter of fact that the cause of the dispute was the implementation of the CARE legislation (paragraph 38 of its decision).  Both the Tribunal and the Royal Court had failed adequately to appreciate that the cause of the dispute was synonymous with the nature of the dispute.  If they had had proper regard to that fact, they would not have been able to conclude that a dispute existed between the SEB and the FRSA, and so would not have been able to conclude that a collective employment dispute existed for the purposes of article 5 of the 2007 Law.  The FRSA's claim was a contrived claim, which had been manufactured so as ostensibly to fall within the parameters of the 2007 Law, when in fact the FRSA's dispute properly lay on different grounds with another body entirely.  This was evident from the FRSA's claim form presented to the Tribunal, which had included the following statement: 

"The Employer refused the FRSA to take a collective dispute over pension arrangements to arbitration, stating that a statute in law decision could not be arbitrated over. The FRSA amended the claim to ensure that the actual legislation of the pension scheme would not be affected, therefore allowing the FRSA to pursue our dispute to binding arbitration as defined in the [NISA]".

The real dispute was between the FRSA and the legislature, and the only reason that a claim had been issued against the SEB was that it was not possible for the FRSA to issue one against the legislature. That was the nature of the dispute, and it could not amount to a dispute between employer and employees falling within article 5(1) of the 2007 Law, nor to a dispute about terms of employment under article 5(2) of the 2007 Law.  Since there was in consequence no collective employment dispute, the Tribunal had no jurisdiction to entertain the claim under article 22 of the 2007 Law; and it and the Royal Court were wrong to hold that it had. 

(2)       Even if the dispute were with the SEB, it did not fall within the terms of the FTRP.  The FRSA's claim was not a claim for "pay" and was not subject to a negotiated outcome.  "Pay" was a term of art for the purposes of the FTRP, and the Tribunal and the Royal Court were wrong to treat it as encompassing a claim for monetary recompense in relation to pension reform. The meaning of "pay" was necessarily restricted by the FTRP, since it required its level to be determined by way of negotiation between the SEB and the FRSA: there was no other way of calculating it.  It was distinct from "pension", since this was not subject to negotiation but to consultation.  It was not possible for the SEB to negotiate with the FRSA or other trade unions to agree or to establish a different pension regime from that which had been created by the legislature.  To permit the FRSA to remodel its dispute in such a way that the demarcation in the FTRP between those aspects of pay and terms and conditions of service that were subject to negotiated outcomes and those which were not (such as pensions) was rendered nugatory would render the distinction pointless.  It would leave the SEB helpless, since it would be obliged to proceed to binding arbitration in circumstances where it had no power or control over the cause of the dispute.  The FTRP should not be interpreted so as to provide a means for the FRSA to force resolution of a dispute that was not of the SEB's making and in respect of which the FRSA would not otherwise have a cause of action in ordinary legal proceedings.  The logic of the FRSA's position was that any demand could be turned into a "pay" demand by simply seeking compensation. 

(3)       The effect of the Tribunal's decision (and that of the Royal Court) was to trespass on the legislature's jurisdiction.  The decision meant that the SEB was contractually bound to enter into a binding arbitration in circumstances where the outcome of that arbitration might have the effect of depriving the 2014 Law and its supporting regulations of their intended effect.  The logic of the decision was that any legislation affecting public sector pensions was capable of giving rise to a collective employment dispute, provided the relevant trade union made a claim for monetary recompense is a consequence of the reforms to the pensions of its members.  If the decision stood, the legislature would be unable to enact meaningful reform in respect of public sector pensions, since any legislation adopted would be capable of providing the root or original cause of a collective employment dispute, resulting in a binding arbitration that might award a payment to workers as compensation for pension reform. 

25.      The FRSA's response may be summarised as follows.

(1)       It was not disputed that the detriment to employees resulting from the introduction of the CARE scheme was what had led to the claim for monetary recompense.  However, the FRSA was seeking additional remuneration from the employer, the SEB, to offset the financial losses that arose as a result of the scheme being introduced. Even though the scheme had been brought in by legislation, it was open to the SEB as employer to provide recompense to compensate those employees affected for the financial losses they would suffer.  The FRSA had made clear that it was not seeking to change the CARE scheme itself.  This was not a pension dispute. 

(2)       The agreement not to strike represented a major concession by the FRSA. The quid pro quo for it was the FTRP.  It was crucial to the FRSA that the FTRP would be used to resolve disputes.  Nothing in the FTRP stated that, if an external factor triggered a request that the agreed dispute resolution procedure be used, the agreement did not count.  If external factors cause detriment to the employees, it was open to the FRSA to ask for monetary recompense in the form of a change to the "pay" conditions.  A claim to monetary recompense was a claim for pay, and was subject to a negotiated outcome.  The cause of the dispute was not relevant and was in any event entirely distinct from the nature of the dispute. 

(3)       There was no question of frustration of the legislative intention.  The FRSA accepted the existence of the CARE scheme.  The SEB's points could and should be put to the arbitrator. 

(4)       In the circumstances, the decisions of the Tribunal and the Royal Court were correct, and should be upheld. 

26.      We can dispose shortly of the first and third of the SEB's points.  These related points - that the FRSA's dispute is with the legislature, not with the SEB, and that the Tribunal's decision impinges on the legislative prerogative - are both wrong. 

27.      The first of them depends upon treating the nature of the dispute as defined by its cause.  The point is made in the following way in paragraph 3.2 of the SEB's skeleton for this appeal: 

"The Appellant contends that the "root", the "original cause" and the "nature of the dispute" are one and the same. At paragraph 38 of the decision the Tribunal found as a matter of fact that "The cause of the Dispute was the implementation of the CARE legislation" ... before holding that it was not a relevant consideration when applying the Article 5 Test. As such, the Court should have had regard to the cause of the dispute when concerning itself with the nature of the dispute. In doing so, it would not have been able to conclude that a dispute existed between the Appellant and the Respondent for the purposes of the Article 5 Test".

In paragraph 3.14 of the same document, it is said that "the Court should also have had regard to the cause of the dispute, as this is interchangeable with the nature of the dispute" (original emphasis).

28.      The question for the Tribunal, and for the Royal Court, was whether or not there was a collective employment dispute.  That involved deciding whether or not there was a dispute between employer and employees relating to the terms of employment of the employees.  As both the Tribunal and the Royal Court held, there plainly was such a dispute.  What the FRSA was seeking was more money from the firefighters' employer, and the employer's refusal to pay more gave rise to a dispute between them.  The characterisation of that dispute as one between employer and employees is unaffected by what gave rise to it. It is a non sequitur to say that because the origin of the FRSA's claim was its dissatisfaction with the revised pension arrangements, therefore its claim is against the legislature: the cause of a complaint and the form in which it is prosecuted are different things.  To take an example, a complaint that the police are failing to take steps to deal with antisocial behaviour is a complaint about the inactivity of the police, despite the fact that its origin lies in the antisocial behaviour itself.  Although the SEB cannot change the pension arrangements, it can mitigate their effect by paying more to its employees; and the complaint is of its unwillingness to do so.   

29.      The third point stems from the same misconception.  The FRSA recognises that it cannot change the CARE scheme; instead, it accepts the continued existence of the scheme and looks to the SEB to mitigate some of its adverse consequences.  It is self-evident that acceding to the FRSA's claim will not affect the operation of the scheme itself; and it necessarily follows that acceding to the claim will not impinge on the prerogative of the legislature to make statutory provision for the pensions of public employees.  The SEB's real complaint is that the FRSA's claim is contrary to the policy of the 2014 Law; but, as both the Tribunal and the Royal Court pointed out, that is an argument to be put to the arbitrator if the complaint proceeds to arbitration. 

30.      We now turn to the SEB's second point, namely that the FRSA's claim is not within the terms of the FTRP. 

31.      The first thing to note is that this point satisfies the requirement that it raise a question of law.  The Tribunal's jurisdiction under article 22 of the 2007 Law depends among other things upon the existence of the circumstance "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".  If the FRSA's claim is not within the terms of the FTRP, there is no "available procedure" and the SEB cannot be acting unreasonably in failing to comply with it.  Moreover, whether or not the claim is within the terms of the FTRP depends on the proper construction of the NISA; and questions of construction are questions of law. 

32.      As the Commissioner correctly identified in paragraph 44 of his judgment, the essential issue is whether or not the dispute relates to "pay" as that expression is used in the FTRP.  That is a question of construction. 

33.      We agree with the Commissioner that the word "pay" should not be narrowly construed.  The NISA involved the firefighters renouncing their ultimate negotiating tool of going on strike in return for an agreed procedure.  It explicitly acknowledges the legitimate and valuable role of the FRSA in discussing matters affecting pay and terms and conditions of service, and acknowledges that "forward looking consultation and negotiation processes which promote the strategic involvement of the Association in all matters affecting pay, terms and conditions of service, staff welfare and health and safety are in the interests of Fire and Rescue Service, its staff and stakeholders". The expressed purpose of the FTRP was to enable the resolution of "collective differences", which (as the Commissioner remarked) is a very wide term.  The intention plainly was that all aspects of the relationship between the SEB and the firefighters should be open for discussion and (where a negotiated outcome was possible) negotiation within the framework provided by the NISA. 

34.      In those circumstances, the starting point should be that all issues capable of being resolved by negotiation (or, in the terminology of the NISA, "subject to negotiated outcomes") were intended to be settled through the mechanism of the FTRP if they could not be successfully negotiated. 

35.      Starting from that point, the FRSA's argument has great attraction.  There is a simple and compelling appeal in the contention that any claim by the firefighters that the SEB should pay them more money is necessarily a claim for more remuneration.  The only relationship between the SEB and the firefighters is that of employer and employee, and payments made pursuant to that relationship can only be categorised as "pay".  This argument appealed to the Tribunal and the Royal Court.

36.      It is, however, clear that not every monetary payment made by the SEB in the context of its employment relationship with the firefighters is "pay" within the meaning of the FTRP.  As both parties accept, pension provision is outside the terms of the FTRP.  That means that the amount of contributions the SEB is required to make to the CARE scheme is not "subject to negotiated outcomes" and is not pay.  In turn, it follows that a demand by the FRSA that the SEB make voluntary contributions to the scheme on behalf of firefighters would not be subject to a negotiated outcome, and would not be a pay demand; and we can see no logical difference between that situation and a hypothetical demand that the SEB pay the firefighters the amount necessary to enable them to make voluntary contributions themselves. 

37.      A further example concerns redundancy pay.  When asked by the Court whether redundancy payments fell within the ambit of the FTRP, Advocate Morley-Kirk for the FRSA said that they did not, since they came within section 2 of the NISA.  That was no doubt because questions of redundancy would fall within the description of organisational change and future plans affecting employees and having industrial relations implications, and thus would be reserved to the SCG, which was itself expressly not part of the FTRP.  Advocate Morley-Kirk's concession, which we accept is correct, related to both lump sum and periodic redundancy payments; indeed, she accepted that any lump sum payment made by the SEB to the firefighters would not be "pay", since that expression connoted periodical payments. 

38.      What these examples indicate is that it is too simplistic to say, as the Tribunal did, that a claim by employees for monetary recompense from their employer can only be a "pay" dispute.  What they are less helpful in doing, however, is in indicating what differentiates a claim for money from a "pay" claim. 

39.      One possibility that was canvassed in argument is that a money claim that arises from external causes - such as, in this case, a change to the pension regime - cannot be a "pay" claim.  As Advocate Morley-Kirk pointed out, however, external factors commonly have an impact on pay negotiations, the best example being changes in the cost of living.  We do not consider that the fact that a claim for remuneration is driven by external factors means of itself that it cannot be a claim for "pay". 

40.      Another possibility, again canvassed in argument, is that a claim for remuneration made in response to legislation cannot be a "pay" claim.  The example given by Advocate Roberts, for the SEB, was a claim resulting from a legislative decision to reduce the number of public holidays.  We do not think this is a good example: a reduction in the number of public holidays would mean that employees were required to work an extra day or days, and a claim for compensation for that would undoubtedly be a "pay" claim.  A better example might be a change in rates of income taxation: since income tax is levied on what an employee has been paid, it seems circular to treat a claim for compensation for the increase in tax as being itself "pay". 

41.      A third possibility, although one less of principle than of practicality, arises from Advocate Morley-Kirk's concession that a lump sum payment would not be "pay".  That concession indicates that underlying the concept of "pay" in an employment context is periodicity of payment - something that, as a general rule, we would accept. 

42.      None of these possibilities provides a complete answer to the questions arising on this appeal.  Nevertheless, it appears to us that - without precisely defining where the line is to be drawn - the claim in the present case falls on the wrong side of a notional demarcation between "pay" and other monetary compensation.  That is for the following two main reasons.

(i)        The basic concept of "pay" in an employment context is remuneration for work done.  In principle at least, employees carrying out similar functions should be paid similar amounts.  This is recognised by the existence of "published rates" in accordance with which the firefighters' current rates of pay are maintained, as recorded in paragraph 4 of Section 1 of the TCA.  The FRSA's claim, however, requires that the compensation sought is related to lost pension rights; and that requires an individual assessment for each affected employee of the amount by which they are worse off under the CARE scheme, the assessment being based not on consideration of the work done but on individual characteristics such as age and length of service.  A Briefing Paper handed to us in the course of the hearing indicates the wide diversity of results produced by carrying out this assessment.  Although it would be possible for the FRSA to take a more broad-brush approach, such as by demanding a percentage increase in pay rates at the next pay round to reflect the pension changes (an approach which Advocate Roberts accepted would result in a "pay" demand), such an approach would either not achieve the FRSA's specific aim of addressing the disadvantage to particular firefighters or, if it did, would do so by confining the increase to the affected firefighters and thus distort the pay scales. In the latter case at least, the claim would not be a "pay" claim. 

(ii)       In relation to the affected employees, the intention is to subvert the effect of the 2014 Law.  Although we have rejected the suggestion that this means that the dispute is with the legislature, or means that the legislature is unable to make proper provision for public service employee pensions, it is nevertheless a relevant consideration.  One of the functions of the SCG is stated to be the provision of a forum for the discussion of legislation changes affecting employees of the Fire and Rescue Service.  As we have said, the NISA makes clear that the SCG's role does not include matters of pay, and that it does not form part of the FTRP. It seems to us clear that the consequence is that the mechanism provided within the NISA for dealing with legislation affecting firefighters is by discussing its impact within the SCG; and that if consultation within the SCG fails to produce an outcome satisfactory to the FRSA, there is no ability to reopen the matter under the guise of making a claim for "pay". 

43.      For these reasons, we concluded that the Tribunal was wrong in law to hold that the FTRP was an "available procedure" which the SEB had failed to implement.  The appeal should accordingly be allowed and the Tribunal's declaration set aside. 

44.      Our preliminary view is that the SEB's costs of the appeal and of the hearings before the Tribunal and the Royal Court should be paid by the FRSA on the standard basis.  If either party wishes to propose a different order, they may do so by providing written submissions to the Court and the other party within 14 days of delivery of these reasons.  The other side may then have a further 7 days in which to respond.  The Court will then determine the matter on the papers. 

Authorities

States Employment Board v Fire and Rescue Service [2019] JRC 067. 

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

Public Employees (Pensions) (Jersey) Law 2014. 

Employment Relations (Jersey) Law 2007. 

Fire and Rescue Service Association v States Employment Board [2018] TRE 133. 

Employment (Jersey) Law 2003. 

Court of Appeal (Jersey) Law 1961. 

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

Voisins Department Store Ltd v Brown [2007] JLR 141.