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High Court reserves judgement on application of 13 SBS bus drivers to transfer lawsuit against company from Magistrates’ Court to High Court

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The High Court on Friday (30 Apr) reserved judgement on the application of 13 SBS Transit bus drivers to transfer their lawsuit against the company from the Magistrates’ Court to the High Court on the grounds of several important questions of law of public interest relating to provisions in the Employment Act.

Their lawyer M Ravi of Carson Law Chambers said that the questions of law related to such provisions will not only impact their cases but may also affect the rights of all 6,000 SBS Transit bus drivers.

A team of lawyers for SBS Transit, led by Davinder Singh SC, argued that the present application — with one of the drivers, Chua Qwong Meng pushing for his case to be a ‘test case’ — is a means of nullifying “everything that the Magistrate’s Court has done in managing the case”.

They highlighted that the State Courts had proposed during a case management conference the idea of a test case on terms agreed upon by the parties involved in the present application, and had subsequently granted a consent order on 8 May last year for the claims to be heard in the State Courts.

SBS Transit’s lawyers said that Mr Chua “does not and cannot dispute the circumstances” in which the consent order was made, and that this was recorded.

Mr Chua’s lawyers, they said, had only evidently contested the matter when they wrote on 11 Feb this year asking if SBS Transit would agree for his claim to be transferred to the High Court, to which SBS Transit did not agree.

By making the present application, Mr Chua is thus seeking to undermine or challenge the consent order granted by the State Courts on 8 May last year — an action which has no basis in law, SBS Transit’s lawyers argued.

Neither fraud nor manifest error or any other ground that can quash such a consent order was set out by Mr Chua in his case, they said.

“In any event, even if it was not a consent order, Mr Chua did not appeal it, and he is now well out of time. He would also have no grounds to appeal it,” the lawyers argued.

Thus, relying on the parties’ agreement — and the State Courts’ subsequent order — to have his claim tried as a test case for the purpose of seeking a transfer to the High Court when the order was made under the premise of being tried in the State Courts is an abuse of process, said SBS Transit’s lawyers.

SBS Transit also relied on the express terms of the 8 May 2020 consent order, which states that “any decision, determination and/or finding that is made by any Court in any appeal against the lower Court’s decision”, submitting that what was meant by “lower Court’s decision” is indeed the State Courts’ decision and not any other court.

“The fact that the State Courts and the parties understood this premise is borne out also by the fact that the parties and the State Courts then all proceeded on the basis that Mr Chua’s claim would be tried in the State Courts,” they argued.

SBS Transit also submitted that contrary to Mr Chua and the other 12 bus drivers’ assertion, it is insufficient to simply posit that there is a question of law at hand to be heard — rather, there must be a question of law of importance.

While there could be “some overlap” between Mr Chua’s claims and those made by the other bus captains who have filed similar claims, there are differences among the lawsuits and will thus “have no bearing on the public or others who have their own unique contractual relationships”, SBS Transit’s lawyers argued.

Mr Chua, they added, did not elaborate on how employment terms in Singapore and/or employees in Singapore will be affected by the Court’s ruling of the issues in his suit, stating that issues in his suit are “one-off”.

“There is nothing unique about this case that sets it apart from any other claim for breach of the Employment Act or an employment contract,” they said.

SBS Transit’s lawyers also argued that Mr Chua had failed to explain the delay in making the present application.

They cited Skading Anne v Yeo Kian Seng, in which Justice Belinda Ang dismissed a transfer application due to the applicant’s failure to explain the need behind such a transfer, in addition to having the claim tried in the Magistrates’ Court for two years before applying for a transfer.

In Mr Chua’s case, he had filed the present application when “trial is around the corner and 18 months after he filed his claim”, said SBS Transit.

A transfer at this point in the proceedings would result in a delay to the trial, which SBS Transit’s lawyers argued would unfairly prejudice its client.

Mr Ravi, however, challenged SBS Transit’s premise that “the lower Court’s decision” strictly referred to the State Courts’ decision, submitting that describing the decision of any first-instance court as such a decision is a common occurrence “as a matter of legal parlance”.

Further, implying that “the lower Court’s decision” only references the State Courts’ decision would expressly contradict the phrase “any Court”, as decisions made by the State Courts could only be appealed to the General Division of the High Court, he argued.

“If it’s intended that the trial be held only in the State Courts, why did the Consent Order then contemplates the possibility of appeals to “any Court” rather than the “High Court”?

“The Consent Order itself is therefore wide enough to cover the possibility of the High Court hearing the trial at first instance with an appeal to the Court of Appeal or even the newly formed Appellate Division,” Mr Ravi posited.

Mr Ravi also highlighted that there is no express term in the consent order which bars the bus drivers from applying to transfer the suit to the High Court.

Such a term or clause, if it exists in the consent order issued by the State Courts last year, would have been “contrary to public policy”, as it denies the bus drivers’ access to the courts, he elaborated.

Mr Ravi also challenged SBS Transit’s assertion that the questions raised in the list of claims brought upon are “mixed questions of law and fact” and are not strictly questions of law.

SBS Transit, he argued, is adopting “an over-literal approach” in analysing the questions of law raised in the present application.

Addressing the delay in Mr Chua’s application, Mr Ravi. said that the length of delay should be calculated from the time where the requirements of transferring the case was crystallised.

“In this regard, time should start counting from 8 May 2020, when the Court made the order directing (Mr Chua’s case) to be the test case,” he said.

The 10-month delay, Mr Ravi argued, could not be said to be an undue delay and is merely a “bald assertion of prejudice without any real material to back up”.

“In fact, if the transfer application had been made immediately, (SBS Transit) might still be able to argue that the trial would still be delayed and prejudiced them, whereas they never complained about their lead counsel (Mr Singh SC)’s non-availability delaying the matter and prejudicing them,” Mr Ravi charged.

Mr Ravi in a Facebook post on Friday shared an anecdote from today’s proceedings, in which Mr Shankar had described the bus drivers as “Bus Captains”.

“I interjected to say that my clients do not want a glorified title of a Captain when they were not paid properly,” said Mr Ravi.

Background on the case

On 3 Mar last year, five bus drivers argued that by failing to compensate its bus drivers at the basic hourly rate of pay for their waiting time between shifts, SBS Transit had breached an implied term stated in their service agreement.

The lawsuit arose after the two parties had failed to reach a settlement in their final mediation session between the first tranche of suits as reported in Feb last year.

In a statement of claim filed in the State Courts that month, the bus drivers alleged that the company has breached several provisions under the EA — the statutory legislation upon which the terms and conditions pertaining to their working hours and overtime were based on.

The bus drivers claimed that SBS Transit had failed to compensate them at the basic hourly rate of pay “for the period between 4 a.m. to 5 a.m. on the morning and split shifts” in which the drivers are “engaged to be waiting”, and “between 9 a.m. and 1 p.m. on the split shift”.

SBS Transit, they added, had also failed to abide by Clause 24(9) of the Service Agreement by not compensating them the agreed allowance of $18 for work done on the night shift.

The company, they alleged, had also breached Section 36(1) of the EA by failing to provide on a roster a weekly rest day.

In addition, the company had violated Section 37(3)(b) and Section 37(3)(c) of the EA by not paying them “the statutorily prescribed rate” of a sum at the basic rate of pay for two days’ worth of work, the bus drivers argued.

By imposing a “Built-In Overtime” that resulted in the bus drivers working for longer than the statutorily prescribed daily work period of eight hours as well as 44 hours per week, SBS Transit had also breached Section 38(1) of the EA, according to the bus drivers.

Other breaches under the EA allegedly made by SBS Transit, as claimed by the bus drivers, include compensating them at the normal hourly rate of pay — instead of the statutorily prescribed rate of an extra day’s salary at the basic rate of pay for one day’s work, in addition to the gross rate of pay for that day — for work done on public holidays.

The five additional bus drivers bring the total number of bus drivers currently taking legal action against SBS Transit to 13.

Previous writ of summons filed on the grounds of discrepancy between the drivers’ working hour records and the monthly payslips received from SBS Transit

In a writ of summons filed by Mr Ravi and seen by TOC in Sep 2019, the five bus drivers, who have been working for SBS Transit between three years to a decade, alleged that the company has “breached the term of the contract on overtime pay and have underpaid the clients”.

The above claim was made based on the discrepancy between the drivers’ working hour records and the monthly payslips they had received from SBS Transit, which were below the Ministry of Manpower (MOM)’s regulated pay rate, the document read.

Mr Ravi added that the possibility of a breach of MOM’s regulated pay rate needs to be examined in the immediate case and that any “statutory sanctions”, if available, should be looked into accordingly.

Additionally, the suit will potentially delve into the “extent of various EA breaches that may have occurred with regards rest days and overtime pay in the Contracts of Employment”, according to Mr Ravi.

A statement of claim — filed the same month — stressed that four of the bus drivers had already “commenced similar suits” against SBS Transit in the Magistrates’ Court previously, but were told to “wait for the decision” regarding their claim and report against the company.

“However, both the claim and report were ignored despite attending two (2) meetings with the National Transport Workers’ Union (“NTWU”) and ComfortDelGro respectively,” the document read, noting that the meetings took place in Jul and Aug.

The particular plaintiff in the statement of claim had “officially lodged a report to Tripartite Alliance for Dispute Management (TADM)”, which was then referred to the National Trades Congress Union (NTUC).

However, he did not receive any “conclusive answers” after the meetings and decided to request “an official letter” from SBS Transit detailing the breakdown of his monthly salary in order “to better understand where the Defendants were coming from”.

While SBS Transit purportedly agreed to send such a letter within two days of the bus driver’s request, he did not receive any response from the company, following which he “sent out four (4) chaser emails” to the company.

SBS Transit allegedly replied by “restating their position which is in breach of the contract”, according to the statement of claim.

Among the alleged breaches included, but were not limited to, the following:

  • Expecting the plaintiff to work for “7 consecutive days prior to getting an off day”, which the plaintiff claimed was not what both he and SBS Transit had agreed upon in the Letter of Appointment – thus possibly breaching Section 36 of the EA where an employee should be given a rest day per week, or a rest day after a continuous period of 30 hours if on shift; and
  • Putting the plaintiff in a position where he had worked “beyond 44 hours in a week”, which possibly contravenes Sections 38(1)(a) and 38(1)(b) of the EA whereby an employee should not be required to work either more than 6 consecutive hours without a period of leisure, or more than 8 hours in a day, or more than 44 hours in a week.

Mr M Ravi previously said that the immediate case is “the first wage dispute case of its kind involving Singapore’s bus operator”.

Eight bus drivers applied to High Court to quash IAC decision in dispute against SBS Transit

On 16 Jan last year, eight bus drivers had earlier filed a judicial review application to the High Court to quash the Industrial Arbitration Court’s (IAC)’s decision in their dispute against SBS Transit regarding overtime wages and rest days.

A hearing was conducted on 4 Nov last year to determine whether public transport operators have the legal right to require their employees to work beyond the maximum of 44 hours per week as stated in the EA based on exceptions.

IAC president Chan Seng Onn, a High Court judge, in a written decision stated that SBS Transit’s agreements with NTWU were not in breach of the EA.

The IAC decision, argued the drivers as seen by TOC in court documents, was “irrational” and was in breach of its jurisdiction, as the IAC had allegedly failed to consider “all relevant material” prior to making said decision.

The bus drivers argued that the IAC’s decision was based “solely” upon “samples of bus captains’ employment contracts and information provided by SBS Transit”, which the IAC had “extrapolated to all Bus Captains” as well as “the presentations by NTWU which held the position that SBS Transit’s practices were not in breach of the Employment Act”.

“This is clearly irrational, as it does not take into account rosters and contracts of Bus Captains who allege otherwise,” their affidavit read.

Furthermore, the bus drivers highlighted that NTWU, as an entity that is not a party to the dispute between them and SBS, should not act as — in their words, “a nosy parker” to represent the interests of non-unionised workers such as themselves, particularly when the union holds that the plaintiffs have no basis for their claims.

“It is highly irregular for NTWU to be taking cognisance of a trade dispute raised by non-union members, and at the same time, maintaining the position that the aforesaid disputants have no basis for their claims,” they argued.

The bus drivers also alleged — in giving reasons for applying for judicial review of the IAC decision — that SBS Transit had “covertly attempted” to have the legal dispute “resolved beforehand” in the IAC in their absence.

The above, they argued, constituted a breach of the audi alteram paltram rule — one of the principal rules in natural justice — which dictates that a decision made by a court cannot stand unless the party directly affected by the decision was given a fair chance to state their case and to hear the other party’s case in a hearing.

The plaintiffs also argued that the IAC had “jumped the gun” by taking on the question of whether SBS Transit’s practices were in line with the Employment Act “before it was established that SBS Transit was in breach of the relevant provisions” of the Act.

They claimed that it is not within the jurisdiction of a lower court such as the IAC to do so, and that “it is for a higher court to deliver judgement” on whether or not there has been a breach before referring the case back to the IAC to give the necessary orders.

The bus drivers in the case comprise three Singaporeans and five Malaysians. Five of them filed a writ of summons against SBS Transit in Sep 2019, while three filed theirs in Dec that year.

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