Pinggah v Elias [2007] PGSC 14; SC888 (17 October 2007)

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MARGARET ELIAS as the
SECRETARY, DEPARTMENT OF LABOUR AND EMPLOYMENT
First Respondent

PETER TSIAMALILI as the
SECRETARY DEPARTMENT OF PERSONNEL MANAGEMENT
Second Respondent

The Appellant was voluntarily retrenched from the Public Service in 1990. By a letter of offer dated 22 April 2002 and letter of acceptance dated 21 June 2002 the Appellant was re-employed in the Public Service and commenced work on the 4 July 2002. Subsequently the Public Services Commission noted that the Appellant had been previously employed in the Public Service, his re-employment was held to be contrary to the provisions of General Orders 16.7, which prohibited re-employment of retrenched officers, and his employment was terminated effective 8 November 2002. The Appellant sought Judicial Review, re-instatement and back dated entitlements, which were refused by the National Court.

Cases Cited
Premdas v State [1979] PNGLR 329
Enforcement of Rights pursuant to Constitution section 57: Application by Karingu [1988-89] PNGLR 276
National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264
Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC797

1. BY THE COURT: The Plaintiff was a Public Servant who availed himself of voluntary retrenchment from the Public Service in 1990. On 17 December, 2001, a position of Regional Industrial Relations Officer with the Department of Labour and Employment was advertised in the Post Courier newspaper. The Appellant applied for the position and was short listed with seven other persons. On 22 April, 2002, under the hand of the Chairman of the Public Service Selection Committee the Appellant was made a Conditional Offer of Employment. The Appellant accepted the conditions of the letter of offer in writing on the 21 June 2002. The Appellant commenced work on 4 July 2002. His employment was terminated effective 8 November 2002 having previously been advised that his re-employment as a retrenched officer was prohibited by the Public Service General Orders.

"(1) the Department Head of the Department of Personal Management may give to officers directions (to be known as "General Orders") not inconsistent with this Act, as to any matter prescribed by this Act, to be user provided for all that is necessary or desirable for the efficient management and control of the Public Service.

(2) In formulating General Orders under Subsection (1), the Departmental Head of the Department of Personnel Management shall give effect to any relevant decisions on policy made by the National Executive Council."

3. The Secretary of the Department of Personnel Management promulgated General Order No. 16 entitled "Redundancy and Retrenchment in the Public Service". The preamble reads:

"Being an (Interim) General Order reflecting the procedural and substantive terms and conditions of the 2000 Public Service Redundancy & Retrenchment Agreement, made between the Department of Personnel Management and the Public Employees Association, and other procedural arrangements, to regulate redundancy and retrenchment of officers and employees in National Departments and Provincial Administrations."

"An officer who has been entrenched from the Public Service previously shall not be re-appointed or re-deployed back into the Public Service either in a line position or in short term contract employment under any circumstances."

5. There is no evidence that there was any agreement or General Order in place in 1990 when the Appellant took voluntary retrenchment, which purported to restrict re-employment in the Public Service in the way provided by General Orders 16.7.

5. The Appellant argues that General Order number 16.7 is ultra virus the General Order making power in Section 70 of the PSMA because:

A.	The power is restricted to matters within the Public Service and to officers in the Service. Once an officer is retrench, he is outside the Public Service and beyond the control of the Departmental Head;
B.	The PSMA Section 70 is deliberately restricted to directions given to officers within the Public Service, if Parliament had intended retrenchment and prohibition of re-deployment into the Public Service it would have stated so: cf Parliamentary Service Act.
C.	General Order number 16.7 is a restriction on the right to freedom of employment guaranteed by the Constitution Section 48 and the PSMA has not complied with the requirements of Constitution Section 38;
D.	a right or freedom in the Constitution can only be regulated or restricted by the Principle Act and not by way of delegated legislation
E.	General Orders 16.7 is not intended to have retrospective effect and cannot be said to have retrospective effect because it is clearly intended to reflect the Memorandum of Agreement on Redundancy and Retrenchment in the Public Service made to be effective on 1 January 2000 between the Department of Personnel Management and the Public Employee’s Association (the "2000 Agreement").
F.	General Orders 16.7 should be struck down because it is inconsistent with clause 4 .6 of the 2000 Agreement which pursuant to General Orders 16.2 is to prevail in "any conflict of interpretation".

A.	The provisions of General Orders 16.7 are a qualification lawfully required within the meaning of Constitution Section 48(1);
B.	Retrenchment of officers is explicitly within the meaning of the words "efficient management and control of the Public Service" contained in PSMA Section 70;
C.	General Orders 16.7 is validly made subordinate legislation, it is immaterial whether the Appellant discloses his status of retrenchment or not at time of interview and recruitment, breach of the General Order invalidates the recruitment;
D.	The PSMA does comply with Constitution Section 38. General Orders 16.7 is a valid law within the meaning of Section 48 of the Constitution. The pre-amble to the PMSA contains reference to the qualified rights.

7. Dealing with the Appellant's last argument first, General Order 16.2 is in the following terms:

" Redundancy and retrenchment in the Public Service are administered in accordance with the Agreement and this General Order, and in the event of any conflict of interpretation as between the Agreement and the General Order, then the Agreement shall prevail."

"An officer/employee who seeks alternative employment in the Public Service after the end of the notice period, shall be declared to be retrenched and will be entitled to all termination benefits under this agreement, but shall not be eligible for re-employment in the Public Service before the expiry of the period of five years."

9. The Appellant argues that by virtue of General Order 16.2 the provisions of clause 10 .2 of the 2000 Agreement must prevail over the provisions of General Orders 16.7. That argument of course assumes that the differences in the two provisions are a "conflict of interpretation". No argument was addressed on the meaning of that phrase. Where the General Order and the 2000 Agreement make essentially the same provision, but using slightly different wording which might be capable of different interpretation, it is clear that the interpretation to be preferred is the one gleaned from the words used by the 2000 Agreement.

10. However, where the General Orders and the 2000 Agreement make different and conflicting provisions we do not consider that it can be said that that is a "conflict of interpretation". There is nothing obscure or equivocal above the provisions of General Order 16.7 which can be understood in a different light by reading the provisions of clause 10.2 of the 2000 Agreement. Order 16.7 makes a provision which is substantially different to the provision of clause 10 .2 of the 2000 Agreement in a substantive way. That is not just a matter of interpretation. We therefore reject that argument.

11. We agree with the trial judge that the power given by Section 70 of the PSMA to make General Orders " not inconsistent with this Act, as to any matter prescribed by this Act to be so provided for all that is necessary or desirable for the efficient management and control of the Public Service." is sufficiently wide to include the power to make provision for the matters included in General Orders 16. In particular the power is sufficient to make a provision in the nature of Order 16.7. Where an officer accepts voluntary retrenchment, which of course includes the special remuneration package, there are a number of management policy reasons which would justify imposing a condition that the office not be re-employed. Amongst those is the prevention of "double dipping", that is receipt of a salary under a new employment after having received a lump sum payment which includes some salary component. Another management consideration would be to bring in and train younger persons who will be in a position to give longer service than the retrenched officer. We therefore reject the argument that Orders 16 is ultra vires Section 70 of the PSMA.

(1) every person has the right to freedom of choice of employment in any calling for which he has the qualifications (if any) lawfully required, except to the extent that that freedom is regulated and restricted voluntarily or by law that complies with Section 38 (general qualification on qualified rights), or a law that imposes restrictions on non-citizens.

13. There is no evidence from which it could be held that the Appellant voluntarily restricted his freedom of employment. Whilst it is accepted that in 1990 the Appellant voluntarily took retrenchment, there is no evidence that at that time terms of employment applied which restricted subsequent re-employment and which the Appellant must have been accepting by accepting retrenchment. At that time General Order 16.7 did not apply. We can therefore exclude from our considerations the words "restricted voluntarily". It is not relevant that the retrenchment was voluntary, what had to be shown was that restriction on freedom of employment was voluntary. This has not been shown.

14. It is unfortunate that counsel did not refer the Court to the views previously expressed by this Court on the effect or meaning of Section 48. The right guaranteed is to choice of employment, not the practice of employment: Premdas v State [1979] PNGLR 329 and Enforcement of Rights pursuant to Constitution section 57: Application by Karingu [1988-89] PNGLR 276.

"The word 'qualification' used in section 48 of the Constitution relates to qualities and the conditions which a person must meet in order to practice a vocational or profession. This word has to be interpreted widely to cover all such matters. The only requirement is that they must be lawfully require... there is a broader meaning of "qualification" which relates to other matters and circumstances which must be fulfilled before a person becomes entitled to practise a vocation.": see Application by Karingu (supra) per Kapi DCJ (as he then was).

15. The requirement in the Lawyers Act for a lawyer to have a practicing certificate and insurance policy are lawfully required qualifications: Application by Karingu (supra). The statutory retiring age of 60 years stipulated in the Public Service (Management) Act relates to the practice of employment and not the choice of employment and is consequently not a freedom guaranteed by Section 48 of the Constitution: see National Executive Council, the Attorney General and Luke Lucas v Public Employees Association of Papua New Guinea [1993] PNGLR 264.

16. In our view, a provision which stipulates that a person cannot be employed is a restriction on the choice of employment. General Orders 16.7 is a restriction which removes employment in the Public Service from the choices available to the Appellant. It is not a matter which simply relates to the practice of employment. Further we are of the opinion that not to have been retrenched from the Public Service, is not a "qualification" within the meaning of section 48. It is not a personal attribute, an educational qualification, or like matter which better fits the person to carry out the employment. Nor is it an associated qualification, such as insurance, or a security clearance designed to protect the public in the pursuit of the employment. It is simply a prohibition.

17. Therefore in order for General Order 16.7 not to be a breach of the right guaranteed by Section 48 of the Constitution, it must comply with the provisions of Section 38 of the Constitution or its terms shown to have been accepted voluntarily by accepting voluntary retrenchment after the General Order came into force.

18. To comply with the requirements of Constitution Section 38 it must be shown that the requirements of Section 38 (2) have been fulfilled, namely:

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority."

19. The General Orders are not made by the Parliament and therefore cannot by themselves comply with Constitution Section 38. The compliance must be by the PSMA. The PSMA specifies that it is a law made for the purpose of giving effect to the public interest in public order and public welfare in so far as it restricts a right or freedom referred to in section 46, s.47, s.49 and s.50 of the Constitution. Therefore it complies with section 38 of the Constitution in respect of those mentioned sections.

20. The Public Service (Management) Act does not comply with section 38 of the Constitution in respect of restricting guaranteed rights in section 48 of the Constitution. Therefore, in so far as we find that General Orders 16.7 restricts the freedom of choice of employment, we hold that it is invalid and unenforceable, except in those cases where it is shown that the restriction has been voluntarily accepted.

21. In the case of this Appellant the restriction of General Order 16.7 was not voluntarily accepted. The provision is unenforceable against him. His services were wrongly terminated. The Appellant is entitled to the order that he be re-instated. Relief is discretionary in judicial review matters. Where the Appellant has been forced to come to the Supreme Court to obtain his relief it is fair that he receive back dated entitlements even though he has not contributed his labour for the period since his wrongful termination: Mision Asiki v Manasupe Zurenuoc, Provincial Administrator, Morobe Provincial Administration and The Independent State of Papua New Guinea (2005) SC 797. We therefore make the following orders:

Manjin Lawyers: Lawyers for the Appellant
Paraka Lawyers: Lawyers for the Respondents

Supreme Court of Papua New Guinea

Pinggah v Elias [2007] PGSC 14; SC888 (17 October 2007)