clr/1987/1987_3_889.pdf

(1987)Paragraph 4 of Clause 1 of the said agreement provided that -no emplacement of thepersonnelwhich retiredorresignedbefore 1 182willbe made on the basis of paragraph 3 above » Thepartoftheagreementthatrelatedtothepensionschemeandprovident fund was incorporated into regulations published on 27 5 83 ** On 163 82 A S Michaelides who later became Secretary of the Trade Union of the pensioners of the respondent addressed a letter to the respondent requestingan incrementinthenewscalesandcomplainingofthe exclusion of the retired members fromthe new salary scales His request was rejectedby letter dated22 3 83 1 0 On 30 5 83 the said Michaelides, actingin his capacity as Secretary ofthe theUnion complainedbylettertothechairmanoftheappropriateCommittee of the House of Representatives of the agreement, particularly of para 4 of Clause1 andthenew pensionscheme The Authonty, towhich thesaidletter was communicated,replied by letterdated 16 11 84 On 5 4 84 the advocate of applicant Phiniotis wrote a letter to the respondent inquiring«whethertherewasarevision in the CY Τ A salary asat 1stSeptember 1981 when the said officerwas pensioned off» By letter dated6 12 84 theAuthonty repliedthat there had been nosuch revision but that according to the said agreement there had been an adjustment of the salary scales of those in the service on 1 182 On 20 12 84 the same advocate on behalf of all applicants informed the Authonty that the contents of the collective agreement were brought to his clients' notice after the receipt of the letter dated 6 12 84 and requested a reconsideration of para 4 of clause 1 of the agreement ^ 20 Oi As there was no reply, the present recourses were filed, seeking the annulment of the exclusion of emplacement of the applicants in the new salary scales as per para 4 of clause 1ofthe said agreement Held dismissing the recourses

(1)There is no merit in the respondent s contenlion that, as the Regulations were published in May 1983, these 3 0 recourses are out of time The relief sought does no.refer tothe pensions or Regulations, but only to para 4 of clause 1of the collective agreement The peremptory penod of 75 days commences fromthe datethat thedecision or act was published or, if not published, from the date, when it came to the knowledge ofthe applicant Withtheexception oftheletterdated 163 83by 3 5 Michaelides, who at the time was not the Secretary of the Union, there is no evidence that the part of the agreement relatingtothe new salary scales was publishedor communicated totheapplicants There isno matenal beforethe Court that the applicants had knowledge of it before the Communication to applicant Phiniohs 890 ^U 3 C.L.H. 5 XO 15 20 25 Panayi and Others v . CY.T.A. 2)Acollective agreement does not create nghts of public law Acollective agreement and itscontentsare notby themselves amenable tothejurisdiction of this Court In the case of the respondent Authonty and in the light of Regulation 57* of the Cyprus Telecommunications Authonty General Regulations, 1982 a Collective Agreement relatingto thesalanesand grades of the lower, middle and higher personnel of the respondent creates nghtsif such nghtsemerge from itscontents 3)The complaint of the applicants thattheir vested nghtswere violated by para 4 of clause 1 of the Collective Agreement in question cannot be accepted A nght vests, ifthe process of the law for its acquisition has been completed A vested nght should not be identified with amere expectation At the time oftheir service the applicants have not acquired any nghts and they hadno vested nght that after their retirement they would receive increases retrospectively 4) Finally applicants' complaint of violation of the principle of equality must also, be rejected Art 281 of theConstitution does notpreclude distinctions and classifications, which are objectively and reasonably justifiable Inaccordance with the said Collective Agreement there wasno increase in the salanespaid toanyone poorto31 12 81and,therefore,there w a sn o distinction dunng the penod the applicants were entitled todrawa salary Assuming the existence ofadifference between the applicants and those, who were in the service on1182, the differential treatment hada reasonable and objective classification In thisrespectit mustberemembered that 31 1281 was the date of expiration of the previous Collective Agreement Recourses dismissed No order asto costs Casesreferredto Kontemeniotisν CBC ( 1 9 8 2 ) 3 C L R 1027, Paphitisand Othersν The Republic

(1983)3C L R 255, 30 Mavrommatis andOthers ν The Land Consolidation Authonty

(1984)3 C L R 1006, Evangelou and Othersν CBC

(1985)3C L R 1410, 77ieRepublic ν Menelaou

(1982)3 CL R 419, Economidesv The Republic

(1972)3 CL R 506, 35 Mikrommatis ν The Republic, 2RSCC 125. The Republic ν NishanArakian and Others

(1972)3C L R 294, 'Quotedatpp 897-898post 891

(1987)Panayl and Others v. CY.T.A. Papaxenophontos and Others v. TheRepublic

(1982)3 C.L.R. 1037; Apostolides and Othersv.TheRepublic

(1984)3 C.L.R.

1. Recourses. Recourses against the decision of the respondents to exclude applicants' emplacement inthe new salary scales as per para.4 of 5 thecollective agreementbetween therespondentsandE.P.O.E.T. (the trade unionof the employees). E.Karaviotis, for the applicants. A. Hjihannou, for the respondents. Cur. adv. vult. 10 STYLIANIDES J. read the following judgment. In these recourses 40 retired employees of the respondentAuthority pray for thefollowing identical relief:«A declaration that the Respondents' decision to exclude the emplacement of theApplicants inthenew salary scales as 15 per para. 4 of the collective agreement between the Respondents and E.P.O.E.T. (Ελευθέρα Παγκυπριος Οργάνωσις Εργατοϋπαλλήλων Τηλεπικοινωνιών)dated 6th August, 1982, is null and void and of no effect whatsoever». 20 Theapplicants were intheservice of therespondent Authority. They all retired, having attained the prescribed age, after 1.1.80 and before 31.12.
2. After the expiration on 31.12.81 of a Collective Agreement of two years' duration,negotiations between the Authority and the 25 trade union of the employees of the Authority (E.P.O.E.T.)took place. On 6.8.82 an agreement in principle was reached which would be put into operation onits approval by theAuthority and the trade union.A memorandum of this Drovisional agreement is Appendix No.
3. 30 Clause 1 provides for adjustment of scales, Clause 2 for fringe benefits and Clause 3 for compensation and other allowances. The duration of this provisional Collective Agreement was set 1.1.82 -31.12.
4. Thefirstclause reads as follows:- 892 3 C.L.R. Panayla n d O t h e r s v.CY.T.A. StyUanide· *\.Εναρμόνισις Κλιμάκων
5. Η επιτευχθείσα συμφωνία εμφαίνεται εις τ ο συνημμένον «Παράρτημα Α». 5
6. Η ένταξις των υπαλλήλων ειςτας νέας κλίμακας (Α) θαγίνη επί τη βάσει των Κανονισμών εντάξεως οίτινες ίσχυσαν εις την Δημοσίαν Υπηρεσίάν.
7. Η ένταξις εις ταςνέας κλίμακας θαεπιτευχθή από της 1/1/1980 άνευ όμως τηςπληρωμής αναδρομικώνκαι οιαδήποτε διαφορά ήτις θα πρόκυψη εις την μισθοδοσίαν τ ο υ Προσωπικού λόγω της εντάξεως θα αρχίση να καταβάλλεται από 1ης/1/
8. 10
9. Βάσει της παραγράφου

(3)ανωτέρωδεν θα γίνη ένταξις τ ο υ προσωπικού τ ο οποίον αφυπηρέτησε ή παρητήθη από ήπροτης1ης/1/1982». («I.Adjustment ofScales 15

1. The agreement reached appears in the attached «Appendix A». 2.Theemplacementoftheemployees inthenewscales(A) will be made according to the Regulations of emplacement which applied inthe Civil Service. 20 25
2. The emplacement in the new scales will be effected as from 1.1.80 without, however, any retrospective payment and any difference in thesalaries of the personnel due tothe emplacementshall commencebeing payable as from 1.1.
4. No emplacement of the personnel which retired or resigned before 1.1.82willbe madeonthebasisof paragraph 3above»). Clause 2 provides for a new pension scheme, for the existing pension scheme, for the provident fund of the monthly paid employees and the health fund. On 16.3.82 A. S. Michaelides, who by the end of thatmonth 30 became theSecretary of thetradeUnionof pensioners ofCY.T.Α., which is abranch of E.P.O.E.T.,thetradeunion of thepersonnel, addressed a letter to the General Manager requesting an increment in the new scales and complaining of the exclusion of the retired members of the personnel from the new salary scales. 35 Hisrequest was rejected by theAuthority by letterdated 22.3.
5. 893 Styllantdes J. Panayl and O t h e r * v. CY.T.A.

(1987)The part of the Memorandum of 6 8 82 which related to the pension schemes and provident fund was incorporated into Regulations which, after approval by the Council of Ministers, were published in the Official Gazetteon 27th May, 1983, under ΚΔ.Π. 124/83 and Κ.Δ Π. 125/83 (See 1983, Supplement No III(I)pages 335 and 357) 5 On 30 5 83 the aforesaid Michaelides, in his capacity as Secretary of the Union of Pensioners of CY ΤA , addressed a confidential letter to the Chairman and Members of the Committees of Communications & Works and Finance and 10 Budget of the House of Representatives complainingagain of the agreement of 6 8 82, particularly paragraph 4 of Clause No 1, excluding the retired personnel, and the new pension schemes, and askingtheassistance of thoseCommittees Copy of thatletter was communicated by the Director-General of the House of 15 Representatives to the Director-General of the Ministry of Communications &Worksand ultimatelytotheGeneralManager ofCYTA The respondent Authonty replied by letterdated 16 11 84 that the provisions of the agreement signed on 6 8 82 were the result 20 of long negotiations between the Authonty and ΕΡΟ Ε Τ ,the trade union that represents the totality of the personnel and the pensioners of the Authonty, and that the provisions of the said agreement could notbe changed On the instructions of applicant PhiniotisinRecourse No 127/ 25 85, hisadvocate addressed letterdated5 4 84,inquiring «whether there was a revision in the CY ΤA salary scales of the vanous posts as at the 1st September, 1981, when the said officer was pensioned off» The Authonty replied by letter dated 6 12 84 (exhibit No 3), 30 informing counsel that norevision of salary took place on 1 9 81 but, according to a Collective Agreement of 6 8 82, which was concluded with ΕΡ Ο ΕΤ, thetrade union,which represents the personnel of the pensioners of the ^"thonty. adjustment of the salary scales of the Authonty was made to those of the 35 Government for thepersonnel thatwas intheserviceon 1 1 82. On 20th December, 1984, the same advocate on behalf of the applicants by letter addressed to the Personnel Manager of the respondent Authonty informed him that the contents of the agreement between CY ΤA and ΕΡ Ο Ε Τ had been broughtto 40 894 3 C.L.R. Panayi and Others v.CY.T.A. Styllanldes J. their notice after the receipt of the letter to him dated 6th December, 1984, concerning Mr Demetrakis Phiniotis As they considered sub-paragraph 4 of paragraph 1 of the agreement unfair, theyrequested the reconsideration ofthe said decision 5 This request was not favoured with any reply Hence these recourses The relief soughtisplainand unambiguous Itisthe annulment of the exclusion of emplacement of the applicants in the salary scales, asper paragraph 4 ofthe CollectiveAgreement of 68 82 10 Though intheaddressesofcounselothermatterspartlyrelatingto thepensions,etc ,werereferred to,1willnotdealwithanyofthem as the Court has to confine itself to the relief sought by the applicants Itisthecontention ofcounsel for theapplicants.15 (a)That,astheywereforpartofthetimeafter 1 180serving withtheAuthonty,theywereentitledtothenewsalaryscales. (b) That the applicants had a vested nght by virtue of the said agreement which could not be taken away from them in an arbitrary manner, and, 20 (c) That the Collective Agreement in quesfion is unreasonable, discnminatory and violates the pnnciple of equalitysafeguarded byArticle28 1ofthe Constitution Counsel for the respondent1 objected that no legitimate interest, no public right, could be denved from a Collective 25 Agreement, that the said Collective Agreement is not an act or decision of executory, administrative natureand isnot amenable to judicial review under Article 146 of the Constitution, that the recourse isout of time inview ofthe factof the publication inthe Official GazetteNo 1867 of275 83ofthePensions Regulations 30 and lastlythattheCollectiveAgreement referred toand regulated thetermsofserviceofthoseemployeeswhowere intheserviceat the material time and it is not contrary to Article 28 of the Constitution as the position of the two classes was intnnsically different 35 Ifind no ment inthecontention thattherecourse isoutof time as the relief sought does not refer to the pensions or to the Regulations but only to paragraph 4 of the Collective Agreement which relates only to the non-emplacement of the retired personnel inthenewsalaryscales Withtheexception oftheletter 895 Styltantd«e J. Panayl and Others v. CY.T.A.

(1987)of Michaelides of 16th March. 1983. who at the time was not holdingany office inthetrade union otthepensioners,thereisno material before this Court that the part of the Collective Agreement relating to the new salary scales waseither published in the Official Gazette or communicated to the applicants. The 5 computation of the 75 days' peremptory period prescribed by para. 3 of Article 146 within which a recourse should be filed, commences from the date that the decision or act was published or, ifnot published, when itcame totheknowledge ofthe person makingtherecourse,andthereisnomaterialbeforetheCourtthat 10 the applicants had knowledge of itbefore the communication of therespondents toapplicant Phirtiotis. Ithas been said time and again by this Court that a Collective Agreement doesnotcreaterightsofpubliclaw.Itlackstheforce of . , law. In Kontemeniotis v. C.B.C.,

(1982)3C.L.R. 1027, at p. 1032, theCourtindealingwithacollectiveagreement betweenthetrade unionandtheCyprusBroadcastingCorporation,hadthistosay:«In ourjudgment, the provisions of a collective agreement lack the force of law in that, unless adopted as part of the 20 regulations of a publicbody, they havenoapplication inthe domain ofpubliclaw». In Paphitis and Others v. The Republic,

(1983)3 C.L.R. 255, itwassaid:«On principle and authority, a collective labour agreement 25 does not create rights at public law. The Constitution, the Statute Laws and Regulationsmade thereunder, are the only source for the genesis of rights in the domain of public law. Legislation istheprovinceofthelegislativeassembly.Atbest, a collective agreement between Government and Unions of 30 public officers, signifies, so far as Government is concerned, its intent to promote before the House of Representatives appropriate legislation to implement it. By itself, the agreement creates neither rights nor does it. impose obligations inthe field ofpubliclaw». In Georghios . Mavrommatis & Others v. The Land Consolidation Authority, etc.,

(1984)3 C.L.R. 1006, at page 1022,itwassaid:896 3 C.L.R. Panayi and Others v. CY.T.A. Styllanides J . «A collective labour agreement does not create rights of public law. By itself, an agreement creates neither rights nor does it impose obligations in the field of public law ... The applicants derive no right from the alleged collective agreement». 5 (See. also, Evangelou and Others v. C.B.C.

(1985)3 C.L.R. 1410) The applicants cannot have recourse to this Court against the contentsofacollective agreement.Acollective agreementandthe 10 contents thereof by themselves are not amenable to the jurisdiction of this Court. Only a decision or omission of the respondents, coming within the ambit of paragraph 1 of Article 146, can bejudicially reviewed by thisCourt In accordance with the Personnel of the Cyprus 15 Telecommunications Authority General Regulations, 1982. published in the Official Gazette— (See Notification No.220 of the Official GazetteNo. 1792 of 26thJuly, 1982, Supplement No. 3)— the personnel of the Authority consists of the following five categories: Highest personnel, higher personnel, middle 20 personnel, lower personnel and personnel of general service — (See Regulation 4

(2)). The highest personnel consists of theGeneralManager andthe Deputy General Manager, and the personnel of general services comprises the messengers. 25 Regulation 57 reads:«

1. To εκάστοτε ισχύον μισθολόγιον τ ο υ Προσωπικού της Αρχής καταρτίζεται και εγκρίνεται υπό τ ο υ Διοικητικού Συμβουλίου αυτής. Αι μισθολογικά! κλίμακες και βαθμίδες τ ο υ Κατωτέρου, Μέσου καιΑνωτέρου Προσωπικούως καιτ ο ύψος των πάσης φύσεως επιδομάτων εμφαίνονται εις τ α ς επί μέρους μετά του Προσωπικού εκάστοτε υπογραφόμενος συλλογικός συμβάσεις». 30 «
2. Thesalaryscales of the Personnel of theAuthority for the timebeing inforce ismadeand approved by the Boardof the Authority. The salary scales and grades, of the lower middleand higherpersonnelaswellasthe levelofallowances 35 897 # Sryllanldes J. Panayi and Others v. CY.T.A.

(1987)of any nature whatsoever appear intherespective Collective AgreementswiththepersonneloftheAuthority,whichwillbe signed from time totime»). In view of the provision of Regulation 57, a Collective Agreement relating to the salary scales and grades of the lower, middle and higher personnel may be validly taken as creating rights, ifsucK rights emerge from the contents of such Collective Agreement. 5 Had the applicants anyvested right? The expression «vested right» connotes rights that accrued in 10 law. Rights may be accrued both in civil and public law. Aright may be deemed tovest ifthe process of the law for itsacquisition hasbeen completed. Suchrightcrystallizesthereafter and vestsin thesubject whobecomesitsbeneficiary inlaw—(TheRepublic v. Menelaou,

(1982)3 C.L.R. 419). 15 An officer has a vested right, e.g. on his salary, his pension.A vestedrightshould notbeidentified withamereexpectation ofthe citizen — (Kyriacopoulos -Creek Administrative Law,Volume 1, 4th Edition, pp. 95 and 97). Arightisthe one given byLawand the protection afforded toit 20 is that the recognized legal state cannot be changed to the detrimentofthepersonhavingit—(Economides v.The Republic,

(1972)3C.L.R.506,520). The applicants during their service with the Authority were receiving the salaries as provided in the previous Collective 25 Agreements and under Regulation57. Itgoeswithoutsaying that the power is conferred on the Authority to fix and approve the salariesand the salaryscales.Atthetimeoftheirsuchservice they have not acquired anyright;and further they had no vested right that after their retirement they would receive increases 30 retrospectively; neither the law nor the regulations nor any administrative act created for them any right of increase of their salaries or emplacement inother salary scalesthan theones they had at the time of their retirement. The Collective Agreement of 6.8.82 expressly excluded them. 35 Iturn lastly to the contention that Clause 4 of the provisional Collective Agreement which, as itappears was finally approved, violates the principles of equality, as being discriminatory forthe applicants.. 898 3 C.L.R. Panayi and Others v. CY.T.A. Styllanides J. A^icle 28 1 enshnnes and safeguards the pnnciple of equality between equal matters or intrinsically equal in their nature Itis open, however to the legislator and theAdministration to make distinctions and classifications which are objectively and 5 reasonably justifiable The Authonty by theCollective Agreement made adistinction of two classes the members of the personnel who were ;n the active service on 1 1 82 and those who retired or resigned pnor theielo Itmustbe remembered that31 12 81 was thedateofthe 30 expiration of the previous Collective Agreement No payment would be made retrospectively pnor to 1 182 to any class Only those who were in the active service on 1 182 and afterwards would be emplaced retrospectively in the new salary scales with effect with from 1 1 80 15 20 There was no increase in the salanes paid to anyone pnor to 31 12 81 Only the salanes of the employees in the service after 1 182 were increased as from thatdate Therefore, there was no distinction dunng the penod the applicants were entitled to draw salanes Assuming that by Clause Idifferent treatmentwas extended to the applicants,is thatdiscnminatory? In 1982 the applicants were not in the same position, being pensioners, as the personnel of the Authonty who were still m actualservice Equality entails theequal orsimilar treatment of all 25 those who are found to be in the same situation The applicants were not in the same situation as the personnel who would be emplaced in the new salary scales with effect as from 1 1 80 Though there are some similanties between them, intrinsically they were two different classes The differential treatmenthasan 30 objective and reasonable justification The distinction does not constitute discnmination It does not violate the pnnciple of equality and isnot contraryto or inconsistent with Article 28 1of the Constitution- (See,interalia,Mikrommatis ν TheRepublic,2 RS CC 125, TheRepublic ν NishanArahan and Others,

(1972)35 3 CLR 294, Papaxenophontos and Others ν The Republic,

(1982)3 C LR 1037, Apostohdes and Others ν The Republic,

(1984)3CLR 233) For the foregoing reasons theserecoursesfail and are hereby dismissed butinallthecircumstancesnoorderastocostsismade 40 Recourses dismissed No orderasto costs 899