The High Court on Thursday (10 June) gave permission to 13 SBS Transit bus drivers to transfer their case from the State Courts to the High Court, based on important questions of law or public importance regarding the interpretation of certain Employment Act (EA) provisions relevant to their case.
In the landmark decision, Justice Audrey Lim said in a written judgement that the issues raised by the drivers met the first ground concerning important questions of law under Section 54B of the State Courts Act (SCA).
An important question of law, as viewed within the ambit of Section 54B of the SCA, should concern “more than the immediate interests of the parties”.
It should “be of some public importance, or a point of law which would affect other cases”, she added.
However, such a question does not have to be “a difficult or complex one, although it may be so in many instances”, said the judge.
In the case of the 13 SBS Transit bus drivers, questions of law that were raised were brought up in relation to the following EA provisions, among others:
- Whether a “rest day” within Section 36(1) can be scheduled to enable SBS Transit to compel an employee to work for 12 consecutive days; and
- Whether the exception under Section 38(2)(f) applies to the bus drivers involved the present case, as they have contended that in the ordinary circumstances, an employee in “public transport” such as a bus driver would not be deemed to fall within the ambit of the CLA given the purpose of the CLA. The exception under s.38(2)(f) permits an employer to require the employee to work in excess of the prescribed limit of hours or to work on a rest day.
Justice Lim found that the above questions of law affect not only the 13 SBS Transit bus drivers, but also “a larger class of employees including those in the public transport sector who may potentially fall within the definition of employees” under Part III of the Criminal Law (Temporary Provisions) Act (CLA).
Part III of the CLA encompasses employees “in any industrial undertaking essential to the economy of Singapore or any of the essential services” listed under the provision, pursuant to Section 38(2)(f) of the EA.
The EA’s provisions on mandated rest days and limits to hours of work, among others, serve as safeguards against the exploitation of the rights of employees, Justice Lim noted.
“The question of whether this can be “overridden” in a case where an employee is deemed to provide essential services, which on its face may not look like a difficult question, is important as it affects a larger population of workers in general and not just the immediate plaintiff or parties to the case,” she reasoned.
Such a question, the judge elaborated, would have “potential ramifications on how such contracts are structured in terms of granting off days, computing overtime pay and determining work hours”.
“This however, is not to be taken to mean that in every case in which a provision of the EA is engaged that it would thus constitute an important question of law,” said Justice Lim.
SBS Transit bus drivers’ application to transfer suit may also amount to a “test case” within s 54B(1) of the SCA: High Court
Justice Lim also touched on the issue of one of the drivers, Chua Qwong Meng’s action of urging his case to be made a ‘test case’.
While the SCA does not provide a definition of a ‘test case’, the judge noted that both SBS Transit and the drivers accept the definitions in Black’s Law Dictionary, which state that a ‘test case’ is:
1. A lawsuit brought to establish an important legal principle or right. Such an action is frequently brought by the parties’ mutual consent on agreed facts – when that is so, a test case is also sometimes termed amicable action or amicable suit; or
2. An action selected from several suits that are based on the same facts and evidence, raise the same question of law, and have a common plaintiff or a common defendant. Sometimes, when all parties agree, the court orders a consolidation and all parties are bound by the decision in the test case. – Also termed test action.
In the present case, the action brought by the SBS Transit drivers to transfer the suit falls within the definition of a “test case”, as it fits the second definition stated above, said Justice Lim.
She also rejected SBS Transit’s submission that a test case should, on top of the second definition above, include case management “or other concerns which would make the matter unsuitable for determination by the State Courts”.
Referencing the Australian case cited by SBS Transit, Justice Lim said that unlike the relevant Australian provisions that contain guidelines on the Federal Magistrates Court’s discretion to transfer proceedings to a higher court, there are no such requirements in Section 54B(1) of the SCA in Singapore.
“I add that such matters may, however, constitute relevant considerations under the second stage of the inquiry pertaining to the exercise of the court’s discretion whether to transfer even if one of the grounds in s.54B(1) is made out,” she added.
High Court decision on allowing transfer of case a “ground-breaking” one: SBS Transit’s lawyer M Ravi
Human rights lawyer Mr Ravi of K. K. Cheng Law LLC, who represents the drivers, dubbed the decision a “ground-breaking” one, as the High Court “acknowledged that there are important questions of law of public importance centring around the interpretation of provisions Employment Act”.
Such questions, he said, “affect a larger class of employees and workers in general, and would have potential ramifications on how employment contracts are structured in terms of granting off days, computing overtime pay and determining work hours”.
Mr Ravi also noted that he has decided to act for the drivers on a pro bono basis as they were “not able to keep up with their installment payments” for the “small fee” he had charged them.
Mr Ravi’s team comprises himself, as well as his knowledge manager Guo Rendi, senior law researcher Gabriel Rafferty, and paralegal Sankari Loganathan.
“At the same time during the pandemic came in more pro bono death penalty cases that needed urgent attention and Sankari ably handled the families and distraught mothers with her kind demeanour,” he said.
“On the SBS case , my entire team were and are committed to sacrificing the extra hours which has now paved way for the determination of the ambit of certain provisions of the Employment Act, like the meaning of” rest days”,” overtime” etc. This case will effectively also determine the rights of about 6000 SBS drivers in Singapore,” Mr Ravi added.
SBS Transit is represented by a team of five lawyers from Davinder Singh Chambers, led by Senior Counsel Davinder Singh.