clr/1984/1984_3_1057.pdf

(1984)last monthly salaries. It was not in dispute that applicant's claim arose from a collective agreement between respondent 1 and the Trade Unions of its employees which was not made part of the Regulations of respondent 1. On the preliminary objection, raised by counselfor respondent 5 1, thatthesubjudice actandjor decision could notbe challenged •byarecourse within the meaning ofArticle 146ofthe Constitution inthat suchact andjor dec'sionfell within thesphere cfprivate and not of public law. Held, that only those actsof administiative organsthat come 10 within the domain of public law are amenable to a recourse under Article 146 of the Constitution; that the provisions of acollectiveagreementlacktheforceoflawinthat,unlessadopted as part of theRegulations of a publicbody,they haveno application in the domain of public law; that since the sub judice 15 claim arises from a provision which does not form part of the' Regulations but part of a collective agreement, it does not come within the domain of public law and cannot, theiefore, be entertained by this Court; accordingly the recourse must be dismissed. 20 Application dismissed. Cases referred to: Kontemeniotis v. C.B.C.

(1982)3 C.L.R. 1027 at p. 1032. Recourse. Recourse against the decision of the respondents to pay appli- 25 cant upon his retirement from the service of respondent 1 the benefits out of the Provident Fund calculated on the basis of the average of his last 36 salaries instead of on the basis of his last monthly salary. St. Nathanael, for the applicant. P. Polyviou, for the respondents. 30 Cur. adv. vult. SAWIDES J. read the following judgment. The applicant, by this recourse, challenges the decision of the respondents or either of them topay tohim upon hisretirement from the service 35 ofrespondent 1the benefitsout oftheProvident Fund calculated 10.'?, 3 CL.lt. ChrUodoulou v. C.B.C. Sa\rides J. oh the basis of the average of his last 36 salaries instead of on the basis of his last monthly salaries. The undisputed facts of the case are as follows: The applicant, who was an officer of respondent 1, (having 5 been appointed in 1952), retired on the 1st November, 1982, from thepost of Director ofthe Music Department ofthe Cyprus Broadcasting Corporation, respondent I, (hereinafter to be referred as C.B.C.). Respondent.2 is the Provident Fund of the personnel of the 10 C.B.C., established on the basis of section 12(d) of the Cyprus Broadcasting Corporation Law, Cap. 300A. In accordance with the Regulations of respondent 2, (exhibit 3), an officer of respondent 1 receives from respondent 2, upon his retirement, the benefit of the Provident Fund with which he is credited. 15 As a result of certain dispute that arose between C.B.C. and its officers, an agreement was reached on the 16th February, 1979,between the C.B.C. and the trade unions of itsemployees. One of the claims of the employees concerned the purchase value of the provident fund money to which the employees 20 wereentitled upon their retirement. It wasagreed that a scheme should be adopted by Ihe C.B.C, with regard to the calculation of the puichase value of that money, identical to the one which was to be adopted by the Electricity Authority of Cyprus, with retrospective effect so as to cover the cases of those who had 25 retired since the 1st January, 1974 (exhibit IB). The aforesaid scheme of the Electricity Authority of Cyprus (E.A.C.) whichwassigned onthe 15th December, 1979,ptovided that upon hisretirement an officer would bepaid bythe Authority by way of securement of the purchase value of his money 30 in the provident fund, "a sum not less than 15%of the average of hisemoluments during his last 36months of service, for each full month of contribution to the provident fund", (exhibit 1Q. This agreement was later incorporated on the 22nd January, 35 1980,into a collective agreement entitled "Collective Agreement between the Management of the Cyprus Broadcasting Corporation and the Union of Employees (EVRIC), the Trade Union of officers of Technical Services of the C.B.C. (SYTYRIC) 1059 Savvfdes J. Christodoulou v. C.B.C.

(1984)and the Federation of thesemi-government Employees(SEK)'\ as clause 23 thereof (exhibit 1A). The above agreement was renewed on the 26th July, 1980, for one more year, without any change in clause

1. Thereafter, negotiations started regarding the terms of the 5 renewal of the agreement upon its expiration. In the course of these negotiations the employees of the C.B.C. submitted their claimsto it through the Federation of their Trade Unions, on the 29th October,
2. One of such claimsconcerned the calculation of the purchase valueof the moneyinthe Provident 10 Fund (to whichthe employeeswere entitled upon their retirement) and was to the effect that such calculation should be made on the basis of the last salary instead of the average of the last 36 salaries of the employee, (exhibit 1H). On the 28th February, 1981, a settlement was reached 15 between the C.B.C. and the Trade Unions of its employees, regarding the further renewal of the existing agreement for one more year, till the 31st December, 1981,and which appears in the minutes of a meeting (exhibit 1 ST) entitled "Minutes of the Agreement between the Management and Employees of 20 the C.B.C. regarding the Collective Agreement of 1981"dated the 2nd March,
3. According to paragraph 2 of the above minutes"Theclaimassubmittedisneitheracceptednor rejected, but will be studied and considered again upon the expiiation oftheagreement. TheC.B.C.undertakes toconsider asspecial 25 the cases of employees who retire during 1981". In a supplementary agreement between the parties, signed on the same date, it is provided that: "The Unions will submit to the Corporation special cases of employees who retire during 1981 and the Corporation 30 willtreatthesecasesonthebasisoftheclaimof the unions. This will not prejudice the outcome of the negotiations for the claim". In compliance with such agreement payments were effected by the C.B.C. in the cases offiveofficers (two of whom have 35 retired and three of whom had died during 1981)calculated on the basis of their last salary. On the 30th October, 1981, in view of the forthcoming ex1060 3 C.L.R. Christodoulou v. C.B.C. Santtes J. piration oftheexistingagreement, the Unions of the employees once again submitted their claims, claiming, inter alia, that the calculation of the purchase value of the Provident Fund money be made on the basis of the employee's last salary. 5 Thesenegotiationsdidnotendup,untiltoday,toanyagreement. The applicant, having retired on the 1st November, 1982, was paid the purchase value of his money in the Provident Fund,onthebasisofthecalculation oftheeverageofhislast36 salaries, which he accepted under protest, with reservation of 10 his rights and filed, then, the present recourse. The recourse was originally turned both against the C.B.C. andtheProvident Fund. Inthecourseofthehearing,however, andafter thefactswereagreedupon,ittranspiied that theProvident Fund had discharged all its obligations towards the appli15 cant and theclaim of the applicant concerned only the amount payable to him by the C.B.C. by way of securement of thepurchase value of the money in the Provident Fund standing to hiscredit upon hisretirement. Asa result, thetecourseagainst respondent 2, the Provident Fund, was abandoned. 20 Counselfor respondent 1 insupport of bis opposition raised a numbir of legal grounds, including the following preliminary objections:
4. The sub judice decision is not an executory one. 25
5. The subjudice act and/or decision cannot be challenged by a recourse within the meaning of Article 146 of the Constitution in that suchact and/or decision falls within the sphere of private and not of public law. Byconsent of both counsel the said two points of lawwere heard as preliminary points of law. 30 Indealingwiththefirstpoint oflawcounselfor respondent1 submitted that the recourse is premature in that the method of calculation ofthepurchase valueof themoney ofthe Provident Fund is still under consideration and no agreement has as yet been reached. As regards the second point, counsel contented 35 that the securing of the purchase value of the money of the provident fund, is not an obligation of the C.B.C. provided for byany Law or Regulation and theiefore hasno legalbasis. Theclaim,counselsubmitted, aiisesonlyfrom theterms of the 1061 Sawides J. Chrtstodoulou v. C.B.C.

(1984)collective agreement between the C.B.C. and the Trade Unions ofitsemployees and sinceitisbased onsuchcollectiveagreement it cannot be made the subject of a recourse, but is within the domain of private law. He made, in this respect, reference to both Greek and Cyprus authorities on the point. 5 Counsel for applicant on the other hand, maintained that iince the employees of the C.B.C. have the status of a public servant, any act or decision of the C.B.C. in connection with their status or conditions of service is prima facie taken in the context of its administrative duties and comes therefore within 10 the domain of public law. It was further counsel's contention that the provident fund benefit provided for by the Regulations, constitutes part of the employees' remuneration and ahhough the disputed amount is paid by the C.B.C. and not by the Provident Fund, it is closely connected with it and depends on its 15 existence. It should therefore be considered also as part of the employee's remuneration, and is granted by the C.B.C. in the exercise of its administrative functions. Counsel further contended that applicant is not attacking the collective agreement but the decision of the C.B.C. not to offer him equal treat- 20 ment. Counsel further submitted that by implementing this collective agreement the C.B.C. has accepted it as part of the Regulations and the case therefore comes within the ratio decidendi of Kontemeniotis case. With regard to the objection that the recourse is premature, 25 counsel for applicant maintained that the sub judice decision is not premature because there was a definite decision of the respondent afTecting hisinterest and if he did not file a recourse within 75days he would have lost his chance to test the validity of the decision of the C.B.C. The fact, counsel added, that a 30 new collective agreement might be signed in the future, is immaterial. I shall deal first with the question as to whether the act complained of is a proper subject of a recourse under Article 146.1 of the Constitution, and as such, subject to the jurisdiction of 35 this Court. Article 146.1 of our Constitution, reads as follows: " 1 . The Supieme Constitutional Court shall have exclusive jurisdiction to adjudicate finally on a recourse madeto it on a complaint that a decision,anact or omission 1062 3 C.L.H. 5 Christodoulou v. C.B.C. Savyides J. of any organ, authority or person, exercising any executive or administrative authority is contrary to any of the provi­ sions of this Constitution or, of any law or is made in excess or in abuse of powers vested in such organ or authority or person". As a general rule an act or decision emanating fiorn an organ of administration can be made the subject of a recouise for annulment. It is not, however, all such acts or decisions that can be made the subject of a recourse. Thus, it has been esta10 blished, as a rule, that only those acts of administrative organs that come within the domain of public law are amenable to a recourse under Article 146 of the Constitution. There arc certain acts that although emanating from an administrative body, come within the domain of private law and cannot be 15 the subject of a recourse. Public law regulates the relations between the state and its citizens,whilstprivate law relates to theresidue of legal principles which concern the citizens in their relations to each other, to­ gether with those rules which are common to the State and its 20 citizens. (See Ζ.M. Nedjatti on Administiative Law, 1974 Ed., p. 26). It is stated at page 109 of the same book that: 25 "It is well settled in Administrative Law that matters arising out of actiontaken by Government under contracts with citizens, are matters of private law, and as such they do not fall within the competence relating to the remedy by way of recouise for annulment". It is notin dispute thatapplicant's claim arises fiom the agree­ ment between the C.B.C.and theTrade Unionsof its employees. It is not in dispute either that the above agreement is a collective 30 agreement. What is disputed is whether, in the ciicumstances of the present case, the claim of the applicant should be tieated as falling within the domain of public law. The issue of whether collective agreements come within the ambit of public or private law was raised in the case of Konte35 meniotis v. The Cyprus Broadcasting Corporation

(1982)3 C.L.R. 1027, where Pikis, J., in delivering the judgment of the Full Bench of this Court, said at p. 1032 that: "However, in our judgment, the provisions of a collective 1063 Savvidcs J. Cbrlstodoitlou v. C.B.C.

(1984)agreement lack the force of law in that, unless adopted as part of the regulations of a public body, they have no application in the domain of public law". As I said earlier, there isno doubt that the agreement giving riseto the payment claimed by the applicant isa collective one. 5 It is also a fact that the said agreement was not made part of the Regulations. The payment of the provident fund to'the employees on their retirement is a matter regulated by the Regulations but thematter ofsecuringthepurchasevalueofthe employees' money, is not one regulated by the Regulations. 10 The matter was the subject of controversy between the C.B.C. and its employees and wasfinallysettled by the agreement of the 22nd January, 1980, exhibit 1A which was for a certain duration, which has expired and the terms of its renewal are still under consideration. 15 As counsel for the applicant has put it, the employees of the C.B.C. have the status of a public servant, and any decision concerning their status or conditions of seivice is a matter of public law. Thesubjudicedecision,however,doesnotconcern cither the status or the conditions of service of the applicant. 20 Butevenifit did,again it doesnotceaseto arisefrom thecollective agreement and not the Law or the Regulations. In the Kontemeniotis case (supra) the appellant sought to annul the decision of the C.B.C. not to confirm him to the post of titlerinterpreter, relying on a collective agreement between the res- 25 pondent C.B.C. and the employees' Trade Union in breach of which the respondents failed to communicate to the appellant thecontents of anevaluation report byhis Departmental Head, and it washeld that such breach constituted a matter of private andnotpubliclaw,despitethefactthat similarprovisionsexisted 30 in the Laws governing other public officers. It was held, in this respect, at pp. 1032-1033 of the Kontemeniotis case (supra) that: "The fact that, allegedly, provisions comparable to Article 8ofthecollectiveagreementfound expressioninthe Public 35 Service Law—s.45

(4)of Law 33/67—and the Public Education Service Law—s.36{3) of Law 10/69,carries the case of the appellant no further. They derived their force from thelawthat enactedthem Ifthelegislature 1064 3 C.L.R. 5 Cbristodoulou v. C.B.C. Sawides J. intended toconfei upon employeesof theC.B.C.an opportunity to be heard before their non-confirmation toa post in whichthey serveonprobation, they would haveenacted a provision comparable to s.38

(2)of Law 33/67,expressly enjoining the appointing body to communicate to the employee concerned its inclinations". Since the sub judice claim arises from a provision which does not form part of the Regulations but part of a collective agreement, it does not come within the domain of public law 10 and cannot, therefore, be entertained by this Court. Another contention of counsel for applicant is that the disputed amount should be considered as part of the employees' remuneration. I entirely disagree with this view of counsel. Theprovidentfund moneywhichisgoverned bytheRegulations 15 may be considered as part of the employees' remuneration. The disputed amount, however, is only paid by the C.B.C. as a result of the aforementioned agreement and is lather in the form ofaninterestpaidontheemployeesprovident fund money, andcannot be regarded, in any way, as part of their iemu20 neration, being only a security for the purchase value of their money. As far astheargumentofcounselthat applicant isnotattacking the collective agreement but the decision of the C.B.C. not to offer himequaltreatment, this is utterly untenable. The 25 decision not to pay to the applicant the amount claimed was not an arbitrary decision of the C.B.C. which acted in full fuitherance oftheagreementbetweenitself andthetradeunions. Furthermore, the decision of the C.B.C. cannot be separated fiom the collective agreement and, therefore, cannot be made 30 the subject of arecourse. Lastly, with regard to counsel's allegation that since the C.B.C.hasimplemented thecollectiveagreement,ithasaccepted it as part of the Regulations, I find myself unable to accede to such view. The C.B.C. implemented the above decision in 35 exactly the same way as a normal contracting party in private law. If there wasany intention on itspart to makeit thesubject of public lawit would have takensteps to bring it formally within the Regulations. 1065 Sanldes J. Chrfstodoulou v. C.B.C. •

(1984)Thus, on the authority of Kontemeniotis v. C.B.C. (supra) this recourse must be dismissed on tne ground that it is not entertainable by this Court, as the sub judice decision is not an act or decision within the domain of public law. Having concluded as above, 1 find it unnecessary to deal with the question as to whether the filing of thisrecourse is premature. 5 in the result, this recourse fails and is hereby dismissed with no order for costs. Recourse dismissed. No order 10 as to costs. 1066