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Awia v Public Utilities Board [2011] KIHC 3; High Court Civil Case 184 of 2010 (18 January 2011)

In the High Court of Kiribati
Civil Jurisdiction
Held at Betio
Republic of Kiribati

High Court Civil Case 184 of 2010

Between:

Kanebo Awia
Nabua Raweaitina
Ioane Akura
Mamau Itimaeta
Tokaia Tabuata
Plaintiffs

And:

Public Utilities Board
Defendant

For the Plaintiffs: Mr Iotita Kuarawete
For the Defendant: Mr Monoo Mweretaka

Date of Hearing: 14 January 2011

JUDGMENT

The five plaintiffs are employed by the defendant Public Utilities Board as security guards. They work a 12-hour day. [As I understand it, they work overnight, as a rule from 6 pm to 6 am.] They complain that they should, pursuant to the National Conditions of Service, work only 7¼ hours per day and be paid overtime etc. They ask for a Declaration to that effect and damages.

The PUB is established by the Public Utilities Ordinance. Mr Mweretaka's first submission was that the PUB is a corporate entity independent of the Government and therefore is not bound by the NCS: the plaintiffs are not employed under the NCS but under the PUB Conditions of Service.

A.4

(a) National Conditions of Service applies to employees of the Government, Statutory Bodies and Government Owned Companies of Kiribati and includes procedures for the conduct of business relating to those bodies, except where:-

(i) The contrary intention appears in National Conditions;

(ii) Alternative provision is made for any particular employee in any Ordinance or in any regulation, rule, bye-law or order made under such Ordinance; or

(iii) The terms of an employee's appointment may preclude the operation of National Conditions or any other of them.

To decide Mr Mweretaka's submission, it is necessary to consider whether the PUB is a "statutory body" or a "Government owned company".

Reading the Public Utilities Ordinance one must come to the conclusion that it falls within each – it is both a "statutory body" and a "Government owned company". See, for example, sections 3, 22, 33, 35 and Schedules 1 and 2.

I reject Mr Mweretaka's first submission. The NCS prima facie apply to employees of the PUB. However there are the three exceptions to A4(a). Relevant is the third exception:

(iii) The terms of an employee's appointment may preclude the operation of National Conditions or any other of them.

The terms of the employment of each plaintiff are set out in the document (I was shewn three separate documents in identical terms for three of the plaintiffs and presume they were the same documents for the other two plaintiffs).

I refer to the document addressed to Ioane Akura. He is designated "Security Service Officer" and:-

Subject to the limitations of paragraph 1, you will otherwise be subject to the PUB Conditions of Service and rulings as may be promulgated from time to time.

That "preclude(s) the operation of the National Conditions of Service or any of them".

At the foot of the document is:

"Acceptance of Appointment

I have read this appointment letter or the content has been translated to me, and I fully understand and accept the terms and Conditions of this permanent appointment".

The acceptance is signed by Ioane and dated "11/01/2002". The plaintiffs are employed under the PUB Conditions of Service.

Mr Kuarawete argued that previously security service officers were called "watchmen" but in the NCS this title was changed in 2002 to security service officer along with other changes providing for such things as a 7¼ hour working day. The PUB had followed the NCS in changing the title to security service officer and must therefore be taken to have adopted all the changes made to the NCS in 2002. That is not so. The PUB was entitled to adopt some of the changes but not others. Mr Kuarawete's argument fails.

Mr Kuarawete also relied on section 11 of the Employment Ordinance:-

(1) Any employer and a worker may agree to the assignment of a task to be performed by the worker as equivalent to work for a day of 8 hours and the performance of such task shall, for the purposes of this Ordinance, be equivalent to working for a day.

(2) Nothing in this part contained shall prevent any employer from agreeing with any worker in his employment that the wages of such worker shall be paid at an agreed rate in accordance with the amount of work done and not by the month or by the day.

Subsection (2) is against the plaintiffs. It provides a payment of wages at an agreed rate. An agreed rate is provided in the document of appointment of each plaintiff. S.11 is not relevant.

I am not able to make the Declaration sought. There must be judgment for the defendant.

Dated the 18th day of January 2011

THE HON ROBIN MILLHOUSE QC
Chief Justice