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State v Public Service Commission, ex parte Public Employees Union [2007] FJHC 151; HBJ008.2005 (1 May 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

JUDICIAL REVIEW NO.: HBJ008 OF 2005

BETWEEN:

THE STATE
Plaintiff

AND:

PUBLIC SERVICE COMMISSION
First Respondent

AND:

THE PRIME MINISTER OF FIJI
Second Respondent

Ex parte:

PUBLIC EMPLOYEES UNION
Applicant

Counsel: Mr O'Driscoll on behalf of A.K. Lawyers, Ba for Applicant
Ms Uluiviti for First Respondent

Date of Hearing: 20^th March 2007
Date of Decision: 1^st May 2007

DECISION

Introduction

[1] On the 27^th of July 2004 the Public Service Commission (first respondent) published PSC Circular No. 25 of 2004. The circular tabulated hourly wage rates for some 372 classifications of government wage earners. Subsequently mistakes were discovered in that tabulation and so early in 2005 the first respondent published a corrected version of the wage table in Circular No.2 of 2005.

[2] The Public Employees Union (the applicant) perceived that the corrected circular would effectively reduce the wages paid to some of its members, make others liable for overpayments and create some payment anomalies as between government wage earners in the same job classification but appointed to different Government Departments. The Union essentially complains that the respondent failed to consult with it concerning the amendment to these wage tables. Alternatively, it is claimed the first respondent abused its powers and acted ultra vires, unreasonably or unfairly in the compilation and publication of the amended Circular.

[3] At various times during the curial history I have allowed long adjournments to provide time for the parties to practically resolve the applicant's complaint outside the constraints of these proceedings. The matter did not settle. Final submissions and argument were taken on the 20^th March 2007 and judgment is now required.

Notorious Facts

[4] The first respondent, under the Public Service Act 1999, has the constitutional responsibility to appoint holders of public office to administer their employment and set their remuneration.

[5] Since 1991 the first respondent has negotiated with the applicant over various wage increases brought about by Cost of Living Adjustments (COLA) or merit pay increases for government wage earners. Where COLA or merit pay increases could not be agreed between the parties the matter was referred to arbitration and the resulting remuneration awarded. These agreements or awards were originally promulgated to the various government departments by separate notices.

[6] It became clear to the first respondent by early 2004 that some government departments were not uniformly complying with the agreed or awarded increases to government wage earner salaries. In addition, there was no single reference table paymasters could use to calculate the correct hourly wage rate for a government wage earner with a particular job classification. Rather, I infer, that paymasters had to rely on the separate notices promulgated by the first respondent.

[7] This resulted in some government employees being paid less than their entitlement, others being owed, significant arrears and others yet again being overpaid and liable to reimburse the government for that overpayment.

[8] In an effort to promote departmental uniformity in government pay the first respondent, in 2004, attempted to compile a consolidated reference table containing all the various hourly wage rates negotiated or awarded since 1991.

[9] This was no easy task as there are some 372 relevant job classifications and over time there were many adjustments made to individual hourly rates of pay. The complexity of the task can be assessed from the affidavit of Losana Ravuso the Principal Employee Relations Advisor for the Public Service Commission in her affidavit dated the 12^th of August 2005.

[10] I find as a fact that the applicant did not challenge the respondent's initial decision to compile and publish PSC Circular 25/2004. That was a common sense decision as the circular was only ever intended to publish in a uniform and tabulated way, the various hourly wage rates previously agreed or awarded since 1991. Regrettably, the officer compiling that table made some fundamental calculation errors.

[11] After the publication of PSC Circular 25 of 2004 these calculation errors were detected initially by senior officers in the Public Works Department. By December 2004 the applicant was aware of this problem. It had meetings with the respondent on the 21^st, 29^th and 30^th of December 2004. The first respondent then decided to publish another circular correcting these calculation errors.

[12] The applicant seeks Judicial Review of that decision to publish the amended circular known as PSC Circular 2/2005. Consequently, the Union asks for orders to preserve the effect of the original but erroneous PSC Circular 25/2004. That then is the subject of this application for judicial review.

The Law

[13] Judicial review applications are concerned with reviewing not the merits or effect of any decision but the decision making process itself (The State vs. The Secretary, Public Service Commission Ex parte Solomoni Sila Kotobalavu [2002] Judicial Review No. 31 of 2001S and Pathik J. in Fereti Seru Dawa vs. USP [1994] Judicial Review No. 7 of 1994).

The Power to Correct

[14] There is ample authority supporting the proposition that a public authority is entitled to correct a mistake. The courts have been slow to fix a public authority permanently with the consequences of any mistake Rookin vs. Kent County Council [1981] 1 WLR 1186 and Ronald vs. Environment Agency [2004] 1 WLR 249 per Lord Justice Peter Gibson).

Legitimate Expectation

[15] The applicant places great reliance on what it perceives as a legitimate expectation that it will be consulted over the correction of errors and omissions in a wage table.

[16] The law on legitimate expectation was discussed last year in a significant decision of my brother Justice Coventry. See Solomoni Sila Kotobalavu vs The Fiji Islands Revenue and Customs Authority (unreported judgment dated the 3^rd of November 2006 in Judicial Review No. 37 of 2005). Between pages 7 and 17 his Honour thoughtfully and thoroughly summarizes the current position on the Law in Fiji. I do not intend rehearsing his Lordship's judgment as I accept it entirely.

[17] At paragraph 15 his Honour details the key elements that should be considered when the issue of legitimate expectation is raised. They are:

1. The representation must be made by a public body or authority.

2. The representation must be made with actual or an ostensible authority.

3. The representation must be clear and unambiguous.

4. The expectation must be legitimate.

5. Even if properly made the representation may be validly departed from especially where the representation made was originally on general policy issues as opposed to promises of a highly specific nature to an individual or a small group.

6. The expectation may be procedural or substantive; what must be demonstrated is unfairness not merely a departure from a representation. It is not every departure from a stated intention that necessarily involves unfairness even if it defeats an expectation. Where there is already an obligation to extend procedural fairness, the creation of an expectation may bear upon the practical content of that obligation but it does not supplant it. The ultimate question remains whether there has been unfairness not whether an expectation has been disappointed (cf Re Minister for Immigration and Multi Cultural Affairs, Ex parte Land [2003] 195 ALR 202).

7. Detrimental reliance will normally be required in order for the claimant to show that it would be unlawful to go back on a representation. However, reliance is not essential where an agency seeks to depart from an established policy in relation to a particular person as consistency of treatment and equality of status in such cases should be protected irrespective of whether there has been any reliance as such.

[See also R v Inland Revenue Commissioner's, Ex parte MFK Underwrite Agents Limited [1990] 1 WLR 1545 and R v Jockey Club, Ex parte Ram Racecourse [1993] 2 All ER 225].

Consideration

[18] In this case the applicant wrongly assumes that by compiling, tabulating and publishing a corrected table of government wage earner hourly rates the respondent has somehow unilaterally acted to reduce public servant income, create anomalies in payments or force the repayment of overpaid wages.

[19] In some instances that may be the actual effect of the publication. However, the applicant has failed to distinguish between that effect and the decision making process it seeks to impugn by this Judicial Review.

[20] The first respondent has not made a decision to unilaterally reduce wage rates, create payment anomalies or force repayment of overpaid wages. All the PSC decided to do was to correctly calculate, tabulate and re-publish the agreed or awarded hourly wage rates in one reference table.

[21] The issue for this case is really; whether in making that management decision the respondent was obliged to consult with the applicant at all.

[22] I find the applicant never raised any issue concerning the original process that lead to the publication of the earlier incorrect table in Circular 25 of 2004. The Union did not demonstrate by its actions that it required or expected consultation in respect of that arithmetical task. After all why should it; all the Public Service Commission was attempting to do was to publish the correct hourly wage rates agreed or awarded since 1991.

[23] In preparing the table I find the PSC made some calculation errors. The applicant says that in those circumstances the first respondent had a legal obligation to consult with it before publishing a corrected circular. Alternatively the applicant claims a legitimate expectation of such consultation.

[24] The applicant wants to take advantage of these mistakes on behalf of its members. However, to do so by way of judicial review is primarily wrong because it focuses on the outcome of the mistake and its effect on wages, not on the process of the impugned decision to re-publish a corrected table. Further, a claim for natural justice and a right to be heard in these circumstances seems hollow when all the table originally sort to do was to publish wage rates already agreed to or awarded between the parties.

[25] The applicant had ample opportunity to participate in the process of fixing these hourly rates when they were initially agreed or awarded at various meetings or arbitrations between the parties since 1991. I find there is no merit in an argument that the PSC was somehow required to consult the Union again before correcting the mistaken publication.

[26] There is a common law obligation, a statutory obligation and an obligation at law under the Joint Industrial Council Agreement to consult over COLA, merit pay and other wage determinations. However, I find once those hourly wages rates are correctly determined by agreement or award the decision to publish them in a corrected table is a management one that does not create a legal duty to consult. I find the republication of the corrected table was a reasonable management decision and it was made under appropriate authority.

[27] There is nothing in the evidence from statements made, statutory duties, the earlier process of setting hourly wage rates or the Joint Industrial Council Agreement that would convince me there was a clear and unambiguous representation by the first respondent that might raise the legitimate expectation claimed by the applicant.

[28] For these reasons I find the first respondent had the power to correct the wage tables and was not required to consult the applicant again over agreements and awards already finalized. I further find it would be unfair to effectively fix the PSC permanently to the consequences of calculation errors contained in the original publication.

Conclusion

[29] I refuse the application for judicial review.

[30] The stay order I made on 21^st February 2005 is quashed. This will have the effect of reinstating PSC circular 2 of 2005 as the baseline for government wage calculations across the classifications concerned. That may result in further reductions to government wage earner pay. However I remind the applicant that this finding does not preclude any individual, Union, or the PSC for that matter bringing a contractual or statutory claim for under or over payment of wages.

[31] Costs are awarded to the first respondents. These costs are to be certified and presented to the Master for taxation.

Gerard Winter
JUDGE

At Suva
1^st May, 2007

Solicitors

A K Lawyers, Ba, for Applicant
Public Service Commission, Suva, for First Respondent