Sonia Williams of Castle Comfort Conrad Charles of Bath Estate Anita Joseph of Canefield, and Mervin Anthony of Kings Hill for and on behalf of themselves and on behalf of and as representing members of the Dominica Public Service Union who are Public Officers for declaratory and other relief Appellants v Attorney General of the Commonwealth of Dominica Respondent [ECSC]
| Jurisdiction | Dominica |
| Judge | RAWLINS, J.A.,GORDON, J.A.,Justice of Appeal,Hugh A. Rawlins,Denys Barrow, SC,Michael Gordon, QC |
| Judgment Date | 19 June 2006 |
| Judgment citation (vLex) | [2006] ECSC J0619-1 |
| Court | Court of Appeal (Dominica) |
| Docket Number | CIVIL APPEAL NO.29 OF 2004 |
| Date | 19 June 2006 |
IN THE COURT OF APPEAL
The Hon. Mr. Michael Gordon, QC Justice of Appeal
The Hon. Mr. Denys Barrow, SC Justice of Appeal
The Hon. Mr. Hugh A. Rawlins Justice of Appeal
CIVIL APPEAL NO.29 OF 2004
In the Matter of the Constitution of the Commonwealth of Dominica sections 6(1), 6(2), 8(18), 16, 85, 103 and 117
And
In the Matter of the Constitution of the Commonwealth of Dominica sections 42(2)
And
In the Matter of the Public Sector Salaries and Allowances (Temporary) Reduction Act 2003
And
In the Matter of an Application by Sonia Williams, and by Conrad Charles, Anita Joseph and Mervin Anthony on behalf of themselves and as representing members of the Dominica Public Service Union who are Public Officers for declaratory and other relief
and
Mr. Ramesh Lawrence Maharaj, SC, with him Mr. Julian Prevost for the Appellants
Mr. Anthony Astaphan, SC, with him Mrs. Heather Felix-Evans for the Respondent
This is an appeal against a judgment in which the trial judge dismissed the appellants' representative claim, which they brought for themselves and on behalf of other members of the Dominica Public Service Union,1 who are public officers. The appellant, Ms. Williams, a schoolteacher, is the President of the Union, which is the recognized bargaining body for the majority of the members of the public service of Dominica. The other appellants, Mr. Conrad Charles, Ms. Anita Joseph and Mr. Mervin Anthony are public servants.
In their claim, the appellants state that the Public Sector Salaries and Allowances (Temporary) Reduction Act, 20032 is inconsistent with their right to property protected by section 6 of the Commonwealth of Dominica Constitution Order 1978.3 They assert that this Act was enacted in violation of their legitimate expectation that the government would have followed the process of negotiations toward the conclusion of a collective agreement, as the Public Service Act4 provides, as well as with their legitimate expectation to be consulted before the
legislature passed the 2003 Act, which deprived them of their salaries, allowances and increments.The appellants also claim that the 2003 Act was inconsistent with section 11 of the said Constitution, which protects their right to freedom of association. They further claim that the Act violates the separation of powers doctrine and the rule of law, implicit in the Constitution, and section 8(8) of the Constitution. In this regard, they contend that the legislature usurped the functions of the Board of Arbitration or Tribunal constituted under the Public Service Act for the resolution of their disputes, and denied them the right of access to have their dispute with the government over their terms and conditions of employment adjudicated upon by the Board or Tribunal. They pray for related or consequential declarations. The appellants claim that by taking their financial benefits and not repaying or compensating them, and by denying them access to the Board or Tribunal, the Act infringed sections 6, 8( 8) and 11 of the Constitution.
The appellants also sought to impugn the 2003 Act on the ground that the legislature gave it retroactive effect. They sought an order that the salaries, increments and other emoluments which public servants were not paid because of the provisions of the Act be paid with interest at the statutory rate of 5% per annum, and an order for damages, including aggravated and/or exemplary damages.
The appellants failed in the High Court on all of the issues which their claim raised. Their Notice of Appeal challenges the decision of the learned judge on each of the abovementioned issues, except the issue of legitimate expectation. With respect to the issue of retroactivity, the learned judge held, correctly, on the authority ofIngle v Farrand [1927] A.C. 4175 and James v IRC [1977] 2 All E.R. 897,6 that the 2003 Act cannot be impeached for retroactivity because the clear provisions of the Act, to which the court is obliged to
give effect, are that the Act is to be given retroactive effect. The appellants approached the issue of retroactivity on this appeal from the perspective that before the 2003 Act received assent on 1st August 2003, they were already entitled to the financial benefits or emoluments for July 2003 which the Act reduced. They therefore contend that the benefits for July 2003 clearly constituted property within the meaning of section 6(8) of the Constitution. I shall therefore subsume the issue of retroactivity under the issue whether the Act violated their right to the protection of their property under section 6 of the Constitution.At a glance then, the issues that arise on this appeal, and in the order in which they will be considered in this judgment are as follows:
(1) Whether the 2003 Act or any provision of it is unconstitutional, void and of no effect because it violates the appellants' rights under section 11 of the Constitution which protects their freedom of association.
(2) Whether the 2003 Act or any provision of it is unconstitutional, void and of no effect because it violates the appellants' rights under section 6 of the Constitution which protects their fundamental right to property.
(3) Whether the 2003 Act or any provision of it is unconstitutional, void and of no effect because it violates the separation of powers doctrine, the rule of law or the appellants' right of access under section 8(8) of the Constitution.
It is common ground that the Act was not passed by the special procedures or majority which are required by sections 42 and 117 to alter the Constitution. If therefore the Act has violated any of the provisions or precepts of the Constitution, as the appellants allege, unless the impugned sections can be modified to bring them into conformity with the Constitution, they would be struck down.
These issues will be considered against a brief background, which will highlight, in particular, the important provisions of the 2003 Act and the Public Service Act.
The Public Service Act provides for the establishment of a public service for Dominica. This Act provides for the tenure of office of public officers,7 as well as for the payment of allowances and increments to public officers.8 The Public Service Act further provides procedures for negotiation and consultation between the government and members of the public service, inter alia, in relation to wages and other terms and conditions of service, and for the settlement of disputes arising therefrom. In this regard, the Act provides a mechanism by which the government may, through the Establishment, Personnel and Training Department,9 treat with any public officer or their representative body and enter into collective agreements based on the result of the bargaining process.10 Any dispute which arises during that process may be referred to a Board of Arbitration11 for resolution by a Tribunal.12
The Union and the government entered into a signed collective agreement for wages and other terms and conditions of work for the periods 1997– 2000 and 2000–2001. The parties conducted their affairs in accordance with some of the terms of a draft collective agreement for 2001–2003, which they were in the process of negotiating, but did not conclude an agreement for this period. While negotiations were ongoing, the legislature, as a part of the implementation of a Fiscal Stabilization and Economic Recovery Program, enacted the 2003 Act. This was done after extensive public consultations, which included the Union. The Union did not accept the Program or agree to the reduction of salaries and allowances, and the suspension of increments for public servants for any period.
The appellants' claim sought to impeach the 2003 Act in its entirety, but section 3(1), ( 2) and (3) of the 2003 Act, in particular. Section 3(1)(a) and (d) provide that during the period 1st July 2003 to 30th June 2005, the monthly salaries and allowances of the public officers who are specified in the First Schedule, were to be reduced by 5% as against the salaries and allowances that were payable to them for the month of June 2003. By section 3(2), the public officers lost any entitlement to their annual increments for the year between 1st July 2003 and 30th June 2004. While section 3(3) provided for the restoration of the payment of annual increments from 1st July 2004, the arrears of the increments which they lost for the year 1st July 2003 to 30th June 2004 were not to be recovered.13 Additionally, section 4 of the Act provides that in computing the salaries and allowances for the purpose of reduction of salaries and allowances, only salaries and allowances payable from 1st July 2003 to 30th June 2005 shall be taken unto account.
It is against this brief background that I shall first consider whether the 2003 Act violated the appellants' right to freedom of association guaranteed by section 11 of the Constitution.
"3(1) Notwithstanding anything in any written law, contract, order, award or agreement within the period July 2003 to June 30, 2005
(a) the monthly salary payable to a person who is a holder of an office set out in the First Schedule and to any person holding contracts of employment with the Government including a person engaged under section 70 of the Constitution (herein after referred to as "specified person" shall be five percent less than his salary payable for the month of June 2003.
(b) …
(c) …
(d) an...
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