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Fiji Public Service Association v Fiji Islands Revenue and Customs Authority [2004] FJHC 308; HBC0255.2004 (8 September 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: 24th August, 2004
Date of Judgment: 8th September, 2004

Counsel: Mr. Nagin – for the Plaintiff
Mr. S. Sharma – for the Defendant

JUDGMENT

Introduction

This was an application by the defendant, Fiji Islands Revenue and Customs Authority (FIRCA), to discharge an ex parte interim injunction granted to the plaintiff, Fiji Public Service Association (FPSA), on the 7th of July, 2004.

Background

There are 3 Unions representing the employees of FIRCA namely, Fiji Islands Revenue and Customs Authority Officers and Staff Association (hereinafter referred to as “FIRCAOSA”), Fiji Public Service Association (hereinafter referred to as “FPSA”) and Viti National Union of Taukei Workers (hereinafter referred to as “VNUTW”). Out of a total work force of 693, 52% are represented by FIRCAOSA, 36.6% by the FPSA and 1% by the VNUTW. The remaining 10.2% are not represented by any union.

The plaintiff and the defendant together with FIRCAOSA and VNUTW are parties to a collective agreement dated the 8th of February 2002.

All of these parties agreed that a Job Evaluation and Restructuring Project would be undertaken of FIRCA’s entire workforce. This job evaluation review project (quaintly known as “JERP”) has been the subject of vigorous negotiations between all of the parties in the past 26 months.

Substantial progress has been made on the JERP. The defendant has reached an agreement with FIRCAOSA and VNUTW over JERP and its implementation. Regrettably the defendant and the plaintiff have yet to reach such an agreement. The plaintiff became concerned that the defendant was moving ahead with the implementation of JERP before finalizing an agreement that would protect its members' rights. The defendant does not deny that it published certain materials and advertised certain job vacancies indicating a wish to press on with the JERP despite a lack of any comprehensive agreement with the plaintiff.

The plaintiff union accordingly notified a trade dispute under the Trade Disputes Act. In the usual course of such industrial relations disagreements this dispute was acknowledged and accepted by the defendant.

The plaintiff, however, had a concern that the defendant was pressing on with JERP in spite of the accepted trade dispute. Based on information annexed to a supporting affidavit of Rajeshwar Singh dated the 5th of July 2004 it sought and obtained an interim exparte injunction from me in terms of my judgment dated the 7th of July 2004 where I ordered:

“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”.

Apart from the classic Cyanamid principles the decision was famed around my view that the Court should do what it can to strengthen employment relationships and encourage parties to observe the rules in industrial disputes (cf N.McKay Electrical (Whangarei) Limited v Hinton [1996] 1 ER NZ 501).

The dispute was subsequently referred to a Disputes Committee Meeting. That meeting by letter of the 16th of August 2004 advised that it was unable to complete an agreement between the parties. The matter was then referred to arbitration under Section 5(a) of the Trade Disputes Act (Cap. 97). At the date of dictating this decision while the matter has been referred to arbitration the Secretary of the Arbitration Tribunal has as yet to advise a hearing date before the Permanent Arbitrator.

FIRCA’S Case

Counsel filed lengthy and comprehensive submissions. These canvas the history of the substantive matter detailed in the supporting affidavits. For reasons which will become obvious I do not find it necessary nor appropriate to review those substantive merits particularly when they will be the subject of an arbitration. That process must be free to find its own facts and influences outside any judicial proclamation I may make and so I deliberately refrain from making any findings on the merits beyond a consideration of where the balance of convenience may lie in relation to them, for the purpose of injunctive relief.

In argument before me counsel was able to distil his best 3 points as follows:

1. Injunctive relief is now redundant as the matter is entirely before the Permanent Arbitrator under the Trade Disputes Act. That Act in Section 5 protects the subject matter of the dispute and prevents any party eroding the subject matter of the dispute under pain of criminal penalty ($500.00 and up to 12 months imprisonment).
   
2. The application for the temporary relief was flawed and should now be considered in the light of fresh information including:
   
   1. The Ministry of Labour has now declared all 22 of the new management positions exempt from union influence or collective agreement
      
   2. The subject matter of the dispute referred to arbitration is in respect of new positions not covered by the existing collective agreement (refer article [c] collective agreement)
      
   3. The plaintiff did not properly comply with the Section 63 process in advance of its application for interim relief. This also entails a criticism of the plaintiff for a material non-disclosure of the avoidance of that process in the original affidavits
      
3. The ex parte order cuts across the rights of the unrepresented employees and those represented by FIRCAOSA AND VNUTW, approximately 63% of the workforce.
   

FPSA’s Case

Counsel filed comprehensive written submissions but was able to distil his essential submissions in answer to the defendant’s claim in this way.

1. The Trade Disputes Act does not provide any powers for interim relief. It was argued that while the Statute protects the subject matter of the dispute and provides for criminal sanction there was no statutory power in the arbitrator to protect the status quo and preserve the subject matter of the dispute.
   
2. That the High Court has always maintained original jurisdiction to preserve the status quo (see for example Port Workers and Seafarers Union of Fiji and Ports Terminal Limited, High Court Suva HBC0609 of 1998 dated 26th November 1998 a decision of the Hon. Mr. Justice Scott).
   
3. That by continuing with the injunction the Court would not be interfering with the procedure of the arbitration simply protecting the position of the powerless and preserving the subject matter of the dispute.
   
4. An injunction doesn’t substitute a Court’s discretion for that of the Permanent Arbitrator. It merely supplements the process by preserving the status quo.
   
5. An argument that the Court should not allow one party to “steal a march” on the other party and thereby destroy the substance of the dispute.
   
6. Counsel indicated by reference to the supporting affidavits FIRCA’s powerful and heavy handed display of a by its willingness to implement JERP regardless of whether this plaintiff union had reached agreement with it or not, and regardless of whether a trade dispute had been notified or not.
   

The Law

It is unnecessary for me to restate the Cyanamid principles [1975] UKHL 1; [1975] AC 396. The first limb of that test is easily satisfied. There is clearly a serious question to be tried in these proceedings. I am also satisfied that this is not a case where damages might be an adequate remedy.

The issue rests more on where the balance of convenience lies.

This principle was discussed at length by the New Zealand Court of Appeal in Klissers Farm House Bakeries Limited v Harvest Bakeries Limited [1985] 2 NZLR 140 where Cook J delivering the courts judgment said:

“whether there is a serious question to be tried and the balance of convenience are two broad questions providing an accepted framework for approaching these applications. As the NWL speeches bring out, balance of convenience can have a very wide ambit. In any event the two heads are not exhaustive. Marshalling considerations under them is an aid in determining as regards the grant or refusal of an interim injunction where the overall justice lies.

In every case the judge has finally to stand back and ask himself that question. At this final stage, if he has found the balance of convenience overwhelmingly or very clearly one way ..........it will usually be right to be guided accordingly."

(The emphasis here is mine).

An important competing interest in this case is the plaintiff union’s plea to have the status quo maintained until the Permanent Arbitrator has issued his decision. There are sometimes reasons for preserving the status quo as Lord Diplock opined in Cyanamid (supra) at page 408G:

“where other factors appear to be evenly balanced it is a counsel of prudence to take such measures as are calculated to preserve the status quo. If the defendant is enjoined temporarily from doing something that has not been done before the only effect of the interlocutory injunction in the event of his succeeding at the trial is to postpone the date at which he is able to embark upon a course of action which he has not previously found it necessary to undertake; whereas to interrupt him in the conduct of an established enterprise would cause much greater inconvenience to him since he would have to start again to establish it in the event of his succeeding at the trial”.

It is not necessary that the Court should have to find a case which will entitle the applicant to relief in all events: it is quite sufficient if it finds one which shows that there is a substantial question to be investigated and that matters ought to be preserved in status quo until the essential dispute can be finally resolved........... (McArthy J. in Northern Drivers Union v Kawau Island Ferries Limited [1974] Q NZLR 61.

In very broad terms FIRCA wants to get on with JERP. The Union does not want that to happen without an agreement to protect its members' rights. However, since the injunction was granted the trade dispute commenced under the Trade Disputes Act Cap. 97 has been referred for arbitration.

In the absence of any statutory power in the permanent arbitrator under the Act to preserve the subject matter of the dispute until his arbitration decision I am prepared to find that the Court does indeed have a discretion to grant interim relief to preserve the status quo. Indeed it was that principle that underscored the granting of the ex parte injunction originally. In New Zealand the power to grant interim relief for employment disputes is vested in a separate Employment Court. Nonetheless, the principles are applicable and were reaffirmed by the New Zealand Court of Appeal in Hobday v Timaru Girls School Board of Trustees [1990] 1 NZLR at 163 where Casey J. observed:

“........it would be an extraordinary situation if something so fundamental as the preservation of the position of an employee complaining of unjustified dismissal could not be preserved pending resolution of his or her personal grievance when the Act provides reinstatement as a remedy. Because it is virtually impossible to have immediate adjudication by courts or tribunals protection of the status quo is generally available in other areas of litigation or dispute resolution............”.

As earlier observed the Court should do what it can to strengthen employment relationships and to encourage both parties to observe the rules. This includes the rules of alternate dispute resolution laid down in legislation such as the Trade Disputes Act. When I granted the ex parte interim injunction there was sufficient evidence to indicate to me that FIRCA in a somewhat high handed fashion was pressing on with its restructure in spite of this plaintiff union’s lack of consent.

However, now that the matter has been referred to arbitration I am not convinced that such a pressing reality continues to exist. In effect I find that the interim relief originally granted has served its purpose and is now redundant.

I am satisfied that the provisions of Section 5A of the Trade Disputes Act protect the subject matter of the dispute during the course of an arbitration under pain of criminal sanction. I would expect a government institution like FIRCA to obey the law and not do anything to prejudice the resolution of the subject matter of the dispute.

I cannot accept that the plaintiff will suffer detriment from the dismissal of the existing injunction. The union can rely on the Trade Disputes Act to protect the subject matter of the dispute. There no longer exists sufficient grounds to restrain FIRCA. The time for a ‘quia timet’ injunction has not been reached. There is no evidence to suggest that FIRCA will press on with JERP before the arbitration is completed.

Conclusion

The ex parte interim injunction ordered on the 7th of July 2004 is dissolved. Costs are to be set by an agreement if not then certified and taxed by the Registrar.

Gerard Winter
JUDGE

At Suva
8th September, 2004