AG: Pension reform changes won't affect contract with public sector workers

BY BALFORD HENRY Observer senior reporter

Friday, July 13, 2012    

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ATTORNEY General Patrick Atkinson says that the changes to the public sector pension system proposed in the Government's Green Paper will not breach the contractual agreement with its employees.

Atkinson told Parliament's Public Sector Pension Reform Committee yesterday at Gordon House that the powers which Parliament holds in the public interest allow the Government to take appropriate measures to address the country's fiscal deficits.

"There are various ways to achieve this end, most notably, through collective bargaining, and failing a successful outcome, through appropriate legislative measures," he said.

"The special nature of that arrangement has consistently been defined in the case law, with recent jurisprudence focusing on the concept of legitimate expectation as evidenced in the Wednesbury doctrine of unreasonableness," the AG concluded.

Case law is the study of cases already decided by the courts; legitimate expectation suggests that a public authority's promise effectively amounts to a contract which should not be breached; while Wednesbury principle says a law can be revised when it is clearly unreasonable.

However, the attorney general indicated that certain legislative measures may be required to implement fundamental public sector pensions reform, "most notably the amendment of section 133 of the Constitution, if financing is to be provided other than through the Consolidated Fund (budget)". This seems a certainty as the reformed pension system would not be financed by the budget.

He also said that the regulations for the granting of pensions, gratuities and other allowances to the public officers, contained in the schedule to the Pension Act, may also have to be amended. These are matters that are still being decided by the committee which started studying its draft report yesterday.

"We, however, do not find that any such changes to the law would constitute a breach of a contractual agreement between the Government and public sector employees," Atkinson said.

He pointed out that the views expressed in his opinion represented the considered analysis and revision of the previous opinion, dated June 8, by his department and not only his personal position. But he did not say whether any sanctions are being contemplated against the senior counsel in his department who issued the original opinion.

The committee is scheduled to meet again on July 28 at Gordon House in a final effort to make the deadline of tabling the report before the parliamentary summer recess begins at the end of the month.

Chairman of the committee, minister without portfolio in the Ministry of Finance and Planning Horace Dalley suggested that if the report is not ready before the recess, it would be tabled when Parliament hosts its special Jamaica 50 anniversary joint sitting of both Houses planned for Tuesday, August 7.

Dalley also revealed that he had chaired a meeting of the public sector pay monitoring unit in the morning, and was given the trade unions' full support in carrying through the reform.





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