EPA Calls for Legislative Amendments

Implications of Privy Council’s EPA Judgment

On May 30, 2024, the Privy Council delivered a significant judgment in favour of the Estate Police Association (EPA), which was acting on behalf of the retrenched officers of RBC Royal Bank. I want to underscore the meaning of this judgment, its implications, and the urgency of taking immediate action.

Background and legal proceedings

The matter involved a series of decisions by judicial bodies, starting with the Special Tribunal and the High Court, then the Appeal Court, and finally the Privy Council. The core issue revolved around the Estate Police Association’s representation rights. ­Despite having sole representation rights for estate police officers, the Special Tribunal denied representation to the officers of RBC Royal Bank due to the absence of a branch board.

Tribunal’s adversarial stance

We publicly expressed serious concerns when the Special Tribunal applied for leave to appeal the Appeal Court’s judgment. It appeared that the Tribunal, which is supposed to deliver justice, was taking an adversarial stance. We believe the bank should have initiated this appeal. The Privy Council took note of this and strongly criticised the Tribunal for its actions.

The Privy Council pointed to the Tribunal of abdicating its statutory duties and acting with an interest in the outcome on behalf of a third party, without notifying them of the appeal. The Privy Council highlighted that the Tribunal lost sight of the principles of impartiality and neutrality, which should govern its conduct as a judicial body, and noted that it raised no arguable point of law.

Impact of the Judgment

The Privy Council further stated that no individual who sat on the original panel that denied representation should sit on the matter again. Furthermore, the Special Tribunal should exclude anyone involved in the decision to refer the matter to the Tribunal from any future proceedings. Notably, the chairman of the Special Tribunal, Lawrence Achong, is the only surviving member of the original panel, meaning he cannot participate in any future hearings.

Current impasse

The current legislation mandates that without the chairman present, the Tribunal cannot proceed. As a result, the retrenched officers of RBC Royal Bank must wait until the end of Mr Achong’s tenure to seek justice. This is not the first instance of the EPA being alarmed by Mr Achong’s previous judgments, which have negatively impacted the private security industry officers.

For example, in 2016, his overtime judgment (ST13 of 2012) determined that estate police officers were not workers under the Minimum Wage Act, thus dismissing their claim for overtime after eight hours. The Special Tribunal’s judgment went beyond its jurisdiction, as security officers, unlike estate police officers, fall under the Minimum Wage Act and are eligible for overtime after eight hours.

Regrettably, despite the Special Tribunal’s lack of authority to hear or rule on matters pertaining to security officers (un-precepted officers), it did so, thereby converting a legal nullity into law and depriving security officers of hundreds of thousands of dollars in their rightful earnings for hours worked beyond eight hours. This judgment was made even though the Industrial Court adjudicated that security officers are entitled to overtime after eight hours in 2015, which was subsequently reinforced by a judgment in OWTU v Heller Security in 2023.

Call to action

The Estate Police Association acknowledges that judges can make errors, and those errors may form grounds for appeal by the aggrieved party; however, given the Privy Council’s pronouncements, on lack of impartiality and neutrality, abdication of statutory duties it is clear that Lawrence Achong should no longer serve as chairman of the Special Tribunal.

A judicial body’s primary responsibility is to impartially and neutrally adjudicate matters before it. The highest court has raised concerns that must be addressed as a matter of priority, we must move to protect the Special Tribunal’s standing as a judicial body and remove those who compromise this duty.

Conclusion

In conclusion, the association calls on the relevant authorities to remove Mr Achong as president of the Essential Services Division. This action is necessary to appoint a new chairman of the Special Tribunal and comply with the Privy Council’s directives. The officers dismissed in 2014 have been denied timely justice, and it is imperative that the system demonstrates that justice is both done and seen to be done.

It is also necessary to amend the law to correct the absurdity of the fact that the current law, as written, does not make any provision for a vice-chairman who may sit in the absence of the chairman. If a sitting chairman has a matter come before him in which he has an interest and judicial norms would dictate that he recuses himself, but the law does not allow for such an event, how can justice be served and the matter be heard?

It is noteworthy to highlight that the Special Tribunal is not a part of the Industrial Court; it is merely situated there, and the panel is selected from the Essential Services Division of the Industrial Court at the pleasure of the chairman, so the chair is his own boss.

The time for action is now. Achong must go!