R v Permanent Police Tribunal and Bermuda Police Association

• Jurisdiction: Bermuda
• Judgment Date: 17 February 2009
• Docket Number: Civil Jurisdiction 2008 No. 171
• Date: 17 February 2009
• Court: Supreme Court (Bermuda)

In The Supreme Court of Bermuda

Civil Jurisdiction 2008 No. 171

In the matter of the Police Act 1974

And in the matter of an arbitration award by the Permanent Police Tribunal

BETWEEN:

REGINA

Applicant

and

THE PERMANENT POLICE TRIBUNAL

Respondent

and

THE BERMUDA POLICE ASSOCIATION

Affected Party

Mr C Richardson and Mr P Parry for the Applicant

Mr P Harshaw for the Respondent

Mr A Dunch for the Affected Party

The following case was referred to in the judgment:

R v National Joint Council for the Craft of Dental Technicians (Disputes Committee)ELR [1953] 1 QB 704

Judicial review - Application for certiorari - Contract dispute - Whether combined allowance paid should be included in salaries - Effect would be to make it part of the pension entitlement - Whether tribunal exceeded its jurisdiction

JUDGMENT of KAWALEY, J

Introductory

1. The present application for judicial review was initially made by the Minister on July 3, 2008. Leave was granted by this Court (Greaves J) on July 9, 2008. The primary ground of complaint was that the Permanent Police Tribunal ("the Tribunal") in its June 11, 2008 decision had unlawfully decided that the Combined Allowance should be included in the salaries of police officers below the rank of Chief Inspector for the purposes of years 2005-2006, 2006-2007 and 2008-2009. This complaint was somewhat surprising because this was precisely the issue the Tribunal was requested to adjudicate.

2. The Tribunal is tasked under the Act with resolving contract disputes which have not been resolved by agreement. The statutory breach originally complained of was a breach of section 29A (5) of the Police Act 1974 simpliciter. Since the Minister under the Police Act was responsible for settling the terms of reference which the Tribunal was required to "strictly" follow, I ruled on November 28, 2008 that the Minister lacked the standing to advance the first ground of the original application. The legal argument sought to be advanced implicitly required a finding that the Minister had acted unlawfully in referring a legally prohibited issue to the Tribunal and requiring them to determine it.

3. Mr. Huw Shepheard of the Attorney-General's Chambers had appeared for the Applicant up to that point, as well as before the Tribunal. On January 22, 2009, Juris Law Chambers filed a Notice of Change of Attorney on behalf of the Applicant. On February 5, 2009, the Applicant's new outside counsel issued a Summons making the anticipated application to replace the Minister as applicant but making a somewhat

surprising application that appeared on its face to change the entire legal basis of the main ground of the application, less than two working days before a hearing fixed by Notice of Hearing dated November 6, 2008.

4. At the commencement of the hearing the Crown was substituted for the Minister of Labour Home Affairs and Housing ("the Minister") as the Applicant on an unopposed basis. The Crown also applied to amend the first ground of review to read as follows:

"That the Tribunal erred in law and acted beyond its powers when it redefined the 'combined allowance' as a 'salary supplement' as such 'redefinition' is contrary to the statutory definition of 'salary' contained in the Public Service Superannuation Act 1981 and as such is a usurpation of the Sovereignty of Parliament."

5. This aspect of the application was, unsurprisingly, opposed. As it was not obvious to me that the new ground, wholly detached from its original anchor to section 29A of the Police Act, could be fairly dealt with in the context of the present case, I refused the application on the explicit terms that the Crown could in any event deploy its new argument in support of the original ground 1. The Respondent and party affected had come to Court prepared to meet the argument that the award was invalid by virtue of exceeding the Tribunal's statutory powers, and it would be unfair to them to permit an entirely new case to be argued at such a late stage. It also seemed doubtful that if the determination complained of contravened the 1981 Act, such contravention did not of necessity involve a concurrent exceeding of the jurisdiction conferred by section 29A(5) of the 1974 Act.

6. That original ground was the only issue which the Court was required to determine and now read for practical purposes as follows:

"In reaching its decision on whether the Combined Allowance paid to police officers of or below the rank of Chief Inspector for the years 2005-2006, 2006-2007 and 2007-2008 should be included in officers' salaries and be made pensionable, the Permanent Police Tribunal erred in law and acted beyond its powers in that section 29A(5) of the Police Act 1974 specifically excludes questions of pensions from the ambit of an agreement under Part VA of the Act [as far as any modification of the statutory pension scheme contained in the Public Service Superannuation Act 1981is concerned]1."

7. Although the Applicant's counsel contended that the error of law complained of was sufficient to justify quashing the entirety of the Tribunal's decision, assuming it was made out, the proceedings before the Tribunal need to be considered in some detail to clearly understand the terms and effect of the impugned decision. This flows from a factual dispute as to the precise scope of the Tribunal's decision, which is highly relevant to the scope of relief to which the Applicant would be entitled if the application succeeds.

Factual findings: the dispute before the Tribunal relating to the Combined Allowance

History of the combined allowance dispute

8. Mr. Dunch referred the Court to Exhibit "DS 1" to the First Affidavit of Darrin Simons, sworn on September 11, 2008 on behalf of the Bermuda Police Association ("BPA") and filed on behalf of the Respondent. Inspector Simons was responsible for negotiating on the BPA's behalf.

9. A Witness Statement by Sergeant Stephen Cosham dated February 7, 2008 was placed before the Tribunal. This explained that the BPA started collective bargaining in 1989 and that in January 1990 the Gregory Award introduced the Combined Allowance for the first time. This was a fixed monthly amount payable to all ranks, which was

increased by the "1996 Mowbray Award"2. The 1999 Mowbray Report fixed what was referred to as a Combined Premium at 10% of salary. The most recent pay award was dated October 1, 2004 when the Combined Allowance was continued as a 10% fixed allowance. I will return to the specific submission made to the Tribunal in the present case later.

10. The precursor to the Tribunal was apparently the Police Pay and Conditions of Service Review Board chaired by Louis Mowbray, whose January 5, 1999 Report is reproduced in Exhibit "DS 1" to the First Simons Affidavit. The Mowbray Report (at page 4) confirms that the issue of converting the Combined Allowance into salary was first raised over 10 years ago:

"It has been proposed to the Board that this Combined Premium should be added to basic salaries and supplemented to create higher salary levels. However, in the past, differences in salary have been quickly taken up by other groups, who have the right to strike, and have tended to disappear."

11. It should be noted that the Review Board's name and delivery of a "report" suggests that its role was more administrative than judicial, and that it functioned in a somewhat different manner than the Tribunal. The same Affidavit also exhibits the Minutes of the BPA/Bermuda Government 2007 negotiations, led by Inspector Simons and Major Allan Wayne Smith, respectively. At the first meeting on February 20, 2007, the parties agreed to negotiate with "mutual respect, good business and moral ethics" and "in an honest and fair manner". Major Smith is recorded as being disappointed that the BPA had been functioning without an agreement since 2005 and stating: "We are looking for a reasonable deal for both parties in a timely manner." At the March 13, 2007 meeting, Inspector Simons is recorded as stating that the Combined Allowance was "clear payment for doing your job; therefore it should be viewed as salaryit was previous GVT's attempt to hide the uplift to other organizations. That this could no longer be the case because it was now public knowledge. The time had now come for Police Officers to be paid there [sic] wages up front."

12. Clearly the BPA were asking for an existing allowance which was in substance part of salary to be properly treated as such. Clearly both sides understood that the change of treatment sought would result in the additional salary being subject to the pension regime. At the April 10, 2007 meeting, M. Darlington "explained that the cost to GVT on this submission which is $176,000 pa that must go to pension based on past payments to superannuation fund. He stated more time was needed for the more complex calculations." In the Minutes for April 17, 2007, the following entry appears:

"Item C: Combined Allowance

W. Smith stated that the GVT team supported this and had made submissions to the Ministry of Finance."

13. On May 1, 2007, however, it was clear that this apparent support for the BPA proposal was only conditional, because the Government team is recorded as having confirmed that they did not support it. It was decided that the next meeting would be "based around what arbitration looks like." A similar commitment was made at the May 22, 2007 meeting, which is the last set of minutes before this Court. In addition, the BPA requested that the matters in dispute be referred to a conciliator because no progress was being made. According to the First Smith Affidavit sworn on July 3, 2008 in support of the present application, the dispute was referred to conciliation which did not resolve matters.

14. Although it is somewhat unclear precisely how the terms of reference for the Tribunal came to be formulated, on a balance of probabilities I am...