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Fiji Public Service Association v Fiji Islands Revenue and Customs Authority.doc [2004] FJHC 291; HBC0255.2004 (8 July 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO.: HBC0255 OF 2004

BETWEEN:

FIJI PUBLIC SERVICE ASSOCIATION
Plaintiff

AND:

FIJI ISLANDS REVENUE AND CUSTOMS AUTHORITY
Defendant

Date of Hearing: 7th July, 2004
Date of Ruling: 7th July, 2004

Counsel: Mr. Nagin – for the Plaintiff
Defendant – no appearance

EX TEMPORE RULING ON EX PARTE INTERIM INJUNCTION

On the morning of the 7th of July I had placed before me an ex parte application made by the Fiji Public Service Association (FPSA) against the Fiji Islands Revenue and Customs Authority (FIRCA).

The terms of that application were as follows:

...........that the Defendant by itself and or through its servants and or agents and or howsoever from proceeding any further with the recruitment of the 13 National Managers as advertised in the Fiji Times of 19th June, 2004 or in any manner whatsoever implementing the Job Evaluation Review Report Project without the agreement of the Plaintiff until the hearing and determination of this action or until further order............”

The matter was urgent. The application was considered by me in Chambers and I prepared a brief decision granting the application in part with my reasons and ruling to follow.

The Ex parte Facts

The supporting affidavit filed by Rajeshwar Singh essentially deposes that FIRCA has decided to implement a Job Evaluation Review Project that is likely to affect the employment of many union members engaged by the Revenue and Customs Authority.

The Union on its members’ behalf have invoked a statutory trade dispute process. This has been lodged and accepted. The trade disputes procedure would see the Job Evaluation Review Project challenged. That challenge will be resolved by conciliation and if that fails some form of alternate remedy.

Despite receiving this trade dispute and acknowledging it, the Defendant through its Board and in particular its Chief Executive Officer are pressing on with the internal employment initiative and choosing to ignore the trade dispute.

In that regard it is deposed that the defendant has indicated it will implement the Job Evaluation Review Project on the 22nd of July next.

The Law

In general it can be said that an injunction will not usually be granted without notice but if the Court is satisfied that the delay caused by proceeding in the ordinary way might entail irreparable or serious mischief, it can make a temporary Ex parte Order upon such terms that it thinks just (refer Halsbury volume 24 para. 963). This general principle overlays the approach by the Courts to injunctions generally. These principles were clearly expressed and have been adopted in Fiji and other jurisdictions in the well worn case of American Cyanamid Co v Ethacon Limited Case [1975] UKHL 1; [1975] AC 396, 405, 406.

The test being:

1. whether there is a serious question to be tried in the proceeding; and
   
2. where the balance of convenience lies.
   

As far as whether there is a serious question to be tried I find there is. In that regard the decision of N. McKay Electrical (Whangarei) Limited v Hinton [1996] 1 ER NZ 501 is of assistance because of its policy statement. The Court of Appeal granted an interim injunction preventing an electrician from carrying out work for which his employer had submitted a tender. Although the facts don’t apply the policy does. It was specifically noted that as a matter of policy, the Courts should do what they can to strengthen employment relationships and encourage both parties to observe the rules. Injunctive relief was granted on the basis that if it were withheld the employer had an uncertain claim for damages and a hearing months away, further there was little to discourage the employee’s infidelity.

As for where the balance of convenience lies in every case the Judge has finally to stand back and ask himself this question and if he has found the balance of convenience overwhelmingly or very clearly one way, it would usually be right to be guided accordingly.

Decision

I find there is a serious question to be tried. As a matter of policy the Courts must do what they can to strengthen employment relationships and encourage both parties to observe rules. There is a statutory framework for the resolution of trade disputes. When a dispute is notified the parties are obliged to follow the stipulated procedures and not engage in tactics to usurp that ADR process by abusing their privilege of power.

In my view, the balance of convenience clearly favours the Union and its members. All they want is for the trade dispute process to follow its usual path and for the status quo to be preserved in the interim. That is a reasonable request to make.

I further find that the plaintiff applicant is justified in bringing this application on an ex parte basis. There is clearly urgency and I am satisfied that any delay caused by proceeding in the ordinary way will entail the Union and its members suffering irreparable and serious mischief as the defendant employer presses on with an initiative that might clearly have as its ultimate aim the restructuring, redeployment or redundancy of staff. A consensus approach will inevitably result in a more acceptable and durable result and accordingly the trade dispute process must be allowed to run its course.

Conclusion

Accordingly for the reasons expressed, I granted the ex parte application on the following terms:

An Injunction restraining the Defendant by itself and or through its servants and or agents and or howsoever from proceeding any further with the recruitment of the 13 National Managers as advertised in the Fiji Times of 19th June, 2004 or in any manner whatsoever implementing the Job Evaluation Review Project without the agreement of the Plaintiff until the completion and finalization of the Trade Dispute filed by the Plaintiff on the 22nd day of June, 2004.

I reserve leave for either party to return to Court after the 19th of July, 2004 on 48 hours notice for any urgent or further directions.

The matter is adjourned for further mention at 9.30am on the 6th of August, 2004.

Costs are reserved in the cause.

Gerard Winter
JUDGE

At Suva
8th July, 2004