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Air Pacific Ltd v Fiji Aviation Workers Association [2003] FJHC 281; HBC0313d.2002s (2 May 2003)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO. HBC0313 OF 2002

Between:

AIR PACIFIC LIMITED
Plaintiff

and

FIJI AVIATION WORKERS ASSOCIATION
1st Defendant

and

ATTAR SINGH, VALENTINE SIMPSON,
ROBERT BROWNE, RAMJULA KUMAR,
MAUDE ELBOURNE, GEMMA KWONG,
KELERA DAKULIGA, NAITUKU WAQA,
SEAN KAMALI, JAFFAR ALI KHAN,
LOATA LEDUA, SEREANA MOCK,
LUKE ROKOBULI, RAVINESH KUMAR,
SANJAY KUMAR SHARAN, JUSTIN CROCKER,
SUSAN RADDOCK, PETER TRIPP,
BENATI SEFERTI, VERNON SIMPSON,
REHANA WEISER, SHARUN ALI,
RISHI RAKESH and KAMLESH KUMAR
2nd Defendants

Ms. G. Phillips for the Plaintiff
Mr. H. Nagin for the Defendants

DECISION

A writ of summons was issued by Air Pacific Limited (the ‘plaintiff’) against Fiji Aviation Workers Association and Attar Singh & Others (the ‘defendants’) on 23 July 2002 wherein it claims relief for (as in the summons):

1. Breach of the statutory duty imposed by Section 5A of the Trade Disputes Act to refrain from causing, procuring counselling in any way encouraging, persuading or influencing employees of Air Pacific Limited from contravening the provisions of sub-section (6) of Section 5A of the Trade Disputes Act.
   
2. Unlawful interference with contractual relations.
   
3. Breach of the following collective agreements between the Plaintiff and the First Defendant:
   
   • (a) Senior Staff Collective Agreement between Air Pacific and FAWA, dated 11 November 1999 (“SSC Agreement”)
     
   • (b) Agreement between Air Pacific Limited and FAWA (FAWA Cabin Crew) dated 3 September 1998, (“FAWA Cabin Crew Agreement)
     
   • (c) General Agreement between Air Pacific and FAWA dated 11 November 1999. (“General Agreement”).
     

It therefore claims:

1. An order restraining the Defendants for so long as they continue any industrial action from inducing, causing, procuring, counselling or in any way encouraging, persuading or influencing:
   
   • (a) all or any breaches of the contracts of employment between Air Pacific Limited and its employees
     
   • (b) the discontinuation or impeding of normal work by Air Pacific employees, either totally or partially
     
   • (c) the refusal of Air Pacific Limited employees after discontinuance of work to resume or return to their employment.
     
   • (d) Air Pacific Limited employees to refuse or fail to accept engagement for any work in which they are usually employed
     
   • (e) Air Pacific Limited employees to reduce their normal output or their normal rate of work.
     
2. An order that the Defendants, their employees, agents or contractors be restrained for so long as they continue any industrial action:
   
   • (a) from communicating in written, oral, electronic or any other form whatsoever with employees of Air Pacific (other than the Second Defendants)
     
   • (b) from coming within a radius of one kilometre of any Air Pacific facility or place at which Air Pacific Limited employees are present (other than for the purpose of transit to another place).
     
3. Damages.
   
4. Costs.
   

The application before me is for dissolution of interim injunction as per summons supported by an affidavit of Isake Kamailevuka seeking an interim injunction ex parte claiming certain orders which was granted as follows on
23 July 2002 returnable for 1 August 2002:

1. An interim injunction be granted restraining the Defendants/Respondents until further order of the Court from inducing, causing, procuring, counselling or in any way encouraging, persuading or influencing:
   

(a) all or any breaches of the contracts of employment between Air Pacific Limited and its employees

(b) the discontinuation of impeding of normal work by Air Pacific employees, either totally or partially

(c) Air Pacific Limited employees to refuse or fail to accept engagement for any work in which they are usually employed

(d) Air Pacific Limited employees to reduce their normal output or their normal rate of work.

2. Service at the registered office of FAWA shall for the purposes of these orders be service on all Defendants/Respondents.
   
3. The Defendants/Respondents be at liberty to apply on 24 hours notice.
   

Defendant’s/Respondent’s submission

On 29 July 2002 the defendants filed a motion for dissolution of the injunction supported by Affidavit in Reply of Valentine Simpson, an Aircraft Maintenance Engineer.

In brief, it is the defendants’ argument that the strike action was taken after obtaining proper mandate of the Union members and it was in furtherance of a Trade Dispute. They have complied with section 8 of the Trade Disputes Act. The Minister has not declared the strike unlawful.

They say that the strike is now over and that all matters and dispute have now been referred to Arbitration. Therefore the need for injunction is now gone.

The defendants say that there is no longer any serious question to be tried and therefore the whole case has now become redundant.

The FAWA’s Secretariat and executive no longer have any intentions of leading a strike. Also, the parties have gone to arbitration on the outstanding issues.

Mr. Nagin submits that the balance of convenience is in favour of discharging the ex parte injunction for the above reasons.

Mr. Nagin concludes by saying that the strike is well and truly over. Because of the significant change in circumstances it is a good ground for dissolving the injunction.

Plaintiff’s submission

While opposing the application Ms. Phillips for the plaintiff submits, inter alia, that while Air Pacific (the applicant) had considered and was earlier prepared to consent to the application for dissolution, recent events related to the strike have caused it to reconsider its position.

The offensive event is the letter of 9 August 2002 to Air Pacific from the Union’s Cabin Crew branch secretary, Mr. Peter Tripp containing a directive to Union members to ‘refrain from talking to non-FAWA members’ while on duty. This, counsel says, poses serious operational risks and also breaches Orders (a) and (b) of the Court’s Order of 23 July 2002. She says that whilst the Union maintains that the strike is over and accordingly there is no need for injunctive relief yet the said letter from Mr. Tripp displays a continued willingness to counsel and encourage further strike action.

In these circumstances counsel submits that such actions ought not to be rewarded by the dissolution of the existing injunction. There is need for the interim injunction to be maintained.

Counsel submits that the applicant needs the Court’s protection by injunction for at the very least it affords some security against the unlawful behaviour the Union appears content on pursuing.

Although the letter of 9 August was withdrawn after it was brought to the Court’s attention, she submits that the Union cannot be relied upon to act lawfully without the sanction of the Court.

Consideration of the application

I have considered the submissions made herein from both counsel.

On the affidavit evidence it is clear, as Mr. Nagin says in his submission of 24 September 2002, that all matters and the dispute have been referred to arbitration. Mr. Nagin submits that there is no longer any serious issue to be tried and hence the whole case has now become redundant.

Ms. Phillip’s submission was made on 20 October 2002 and therein she refers to the said letter of 9 August 2002 and maintains that the interim injunction ought to remain.

In his Reply of 10 December 2002 to Ms. Phillips’s fears arising out of the said letter particularly, Mr. Nagin in effect says that counsel has made a mountain out of molehill in her attempt to insist on maintaining the interim injunction. Mr. Nagin says that the incident referred to therein was so minor, isolated and unimportant that it was not reported to FAWA Secretariat.

The letter of 9 August was withdrawn and there is no reason to fear that the Union is likely to resort to activities which they are alleged to have indulged in at the time when interim injunction was given against it. The strike is also over.

At the time of writing this decision the parties had gone to Arbitration but what is the outcome is not known. Assuming that the Arbitration proceedings have not concluded I consider that the balance of convenience lies in dissolving the injunction.

There is a strong point in favour of dissolving the interim injunction considering paragraph 24 at p.9 of Ms. Phillips’s submission wherein it is stated:

“Air Pacific however is prepared to review its position at a future time – say in three (3) months time – at which point, if it has greater confidence that the Union is prepared to act within the law, it may be bound, in the interest of reasonableness, to take a different view – or suffer a different result from the Court”.

It is true, as Mr. Nagin says, that since the filing of submissions on 20 October 2002 the three months would have expired if decision here was delivered after 20 January 2003. That would be all the more reason to dissolve the injunction without prejudicing the plaintiff in any manner.

In the outcome, bearing in mind the whole of the facts and circumstances of this case, in the exercise of my discretion, in the interests of all parties concerned and to enable an amicable resolution of the alleged dispute and wrangling it is only proper that the defendants be freed from the interim injunction and given a free rein without falling foul of the law in going about solving their problems.

I therefore dissolve the interim injunction with a strong warning though that should a situation arise while the action is pending that there is need for an injunction, I would be prepared to give a favourable consideration if an application is made by the plaintiff.

Costs are to be costs in the cause.

D. Pathik
Judge

At Suva
2 May 2003