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Fiji Public Service Association v Fiji Islands Revenue and Customs Authority [2004] FJHC 319; HBC0255.2004 (28 October 2004)

FORMATTED
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: 21st October, 2004
Date of Judgment: 28th October, 2004

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

JUDGMENT

This is a further application by the Plaintiff Union against the Defendant Fiji Islands Revenue and Customs Authority (FIRCA). The Union seeks to restrain FIRCA from implementing a Job Evaluation Review Project (JERP).

The plaintiff union has notified a trade dispute under the Trade Disputes Act. Following the usual processes the dispute is now to be resolved by arbitration.

This is the third application for temporary relief. The background and details of the matter are summarized in my two earlier judgments contained on the file.

This application comes before me following my most recent judgment of the 8th of September, 2004 wherein I discharged the original ex-parte interim injunction granted to the plaintiff union. In the course of that judgment at page 8 and 9 I said:

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.

The Application

The plaintiff union had expected that FIRCA would wait until agreement or resolution of the matter by arbitration before proceeding with JERP. It did not. Instead FIRCA advertised JERP related positions and continues to entice union members to abandon the plaintiff union in return for higher salaries. The Union accepts that member employees are perfectly entitled to accept any offer put up by FIRCA. However, they observe that by enticing the employees in this way the substance of their dispute is being eroded as by its actions of enticement FIRCA is effectively denuding the union of members and weakening its bargaining position.

Further the union complains that FIRCA is avoiding the provisions of the Trade Disputes Act and demolishing the substance of the dispute by pressing on with JERP before the arbitration.

The Response

Counsel for FIRCA somewhat robustly raises a number of contentions against my granting a further interim injunction to the plaintiff union.

First it submits that the matter is res judicata. Counsel submits that my judgment of the 8th of September discharging the original injunction has finally determined the subject matter of the dispute. Therefore I have no jurisdictions to “restore” an injunction. It is submitted that if the plaintiff union was upset at my decision of the 8th of September the proper course was to appeal rather than bring a further application on exactly the same terms.

Citing Halsbury paragraph 1528 and a decision of the High Court contained in Vivrass Development Limited & Another v The Fiji National Provident Fund & Another, CA 277/2001, a decision of my brother Justice Pathik, counsel argues that the court is “functus officio” and that the injunction once set aside cannot be revived. I should note counsel also made reference to commentary under Order 29 at page 505 of the 1985 edition of the white book cf. 29/1/17.

Alternatively counsel argues that the standard principles relating to the granting of injunctions (cf Cyanamid) are in its favour and relief should be denied. Counsel submits based on those classic standards that while there is a serious question to be tried that in any event the balance of convenience lies with FIRCA. First this plaintiff union represents only some 37% of FIRCA’s workers, the other 73% he claims wished to proceed on JERP with all dispatch. He says on a straight arithmetical basis why should 37% of the workforce be able to delay the implementation of JERP for the other 73%.

Secondly he argues that there is no prejudice to the union in leaving matters as they are before the Permanent Arbitrator without the additional and enforcement of an injunction. He says that FIRCA will be bound by the matter before the arbitrator and will have to implement the award. If the award is against FIRCA then counsel says there will have to be retrospective adjustments made.

Counsel submits implementation is a process and that the steps taken by FIRCA to advertise positions under JERP are simply part of that process and not an implementation of the entire JERP package. He submits that FIRCA was only doing what they did at the time the injunction was dissolved. He queries what it is that the authority has done to implement JERP that the injunction could assist.

Finally be criticizes the extent of the original injunction claiming that if FIRCA is restrained from implementing JERP at all than it will be restrained from even talking to the plaintiff union to negotiate the matter while it remains before the Permanent Arbitrator.

Decision

As I said in my decision of the 8th of September the original ex-parte injunction was granted based not only on classic Cyanamid principles but also the principle that the Court should do what it can to strengthen employment relationships and encourage parties in industrial disputes to observe the rules. (cf N.McKay Electrical (Whangarei) Limited v Hinton [1996] 1 ER NZ 501).

Equally I was prepared to discharge that injunction as it was my clear understanding that the union could rely on Section 5A of the Trades Disputes Act to protect the subject matter of the dispute pending the arbitrator’s decision. I expected that a Government institution like FIRCA would obey the law and not do anything to prejudice the resolution of the subject matter of the dispute. I accordingly found that there no longer existed sufficient grounds to restrain FIRCA. I was satisfied that the time for a “quia timet” injunction had not been reached as there was no evidence to suggest that FIRCA would press on with JERP before the arbitration was completed.

I would have thought that was a clear indication to FIRCA that on balance I was prepared to discharge the original injunction because I could trust it not to destroy the substance of the dispute before the arbitral process had been completed. However, despite assurances from their counsel, FIRCA moved to continue its implementation of JERP almost as soon as I had signed off the judgment of the 8th of September 2004 discharging the original injunction.

Res Judicata

I reject counsel’s argument that this Court is functus in terms of its ability to entertain a fresh injunction restraining FIRCA from implementing JERP.

This is not an application seeking to restore an injunction. It is a fresh application seeking to restrain FIRCA from implementing JERP. The application is made in new circumstances where despite my clear warnings contained in the judgment of the 8th of September (pages 8 and 9) FIRCA nonetheless elected to proceed to advertise JERP related positions.

Further I find FIRCA continues to entice union members into the JERP process on condition that they abandon their union membership. In my mind the Courts must do everything within their power to ensure that the parties to a trade dispute retain the subject matter of the dispute intact until either agreement or final arbitration of the matter. It is not equitable for FIRCA to steam roll on with the implementation of JERP thereby destroying the substance of the dispute. Nor is it proper in my view for FIRCA to denude the union of its membership and by that power play effect a defacto resolution of the dispute by stripping the union of its membership.

All parties to industrial disputes must observe the rule. Employment Law more than often areas of litigation or dispute resolution involves good faith bargaining and must see the status quo protected when the arbitration process is engaged. Clever circumvention of that principle while an effective legal tool is of questionable legal value as it attacks the foundation of good faith bargaining and may erode stakeholders confidence in the statutory arbitration process.

If the Courts do not protect the subject matter of the dispute than what is the point of having a compulsory arbitration process to resolve industrial disputes.

I find this is a new injunction application based on fresh facts that have a historical context pre-dating my decision of the 8th of September but a new relevance following the fresh actions of FIRCA occurring since the date of that judgment.

Cyanamid Principles

There is no doubt that there is a serious question to be tried. The union and its members have serious concerns over JERP. Those concerns have been addressed by way of notification of a trade dispute that will be resolved by arbitration.

As to the argument that FIRCA has done nothing to prejudice the union’s position, I totally disagree.

Counsel for FIRCA with the greatest of respect had to concede that implementation is a process and that FIRCA after the 8th of September, 2004 had taken steps towards implementing JERP particularly by its process of job advertisements. Indeed FIRCA’s own deponent in his affidavit (paragraphs 13, 14, 15 and 16) makes it clear that the advertisements were preparatory work to JERP. Further by inference he concedes FIRCA’s actions may have effected some issues of the subject matter of the trade dispute but not the ‘main’ ones. Finally again by inference he concedes FIRCA has enticed some members of the plaintiff union into resignation from the union as a pre-condition to “enjoyment of the benefits of the higher remuneration under JERP”.

It is clear to me even from the deponents affidavit that FIRCA wants implementation of JERP now and is not prepared to wait until the arbitration is concluded.

I find that FIRCA is prepared to use any tactic and any method to ensure it practically secures its proposed job restructuring. Counsel even makes an argument of ‘no prejudice’ based on FIRCA’s promise to follow the spirit of the arbitration decision if it goes against it and retrospectively make good any harm it has caused. That argument misses the very point that employees in a trade dispute have a right and fair expectation that the subject matter of the dispute won’t be dissipated by employer’s action.

At the heart of this dispute lie the terms and conditions of union members’ employment. No amount of money could compensate them adequately for surrender of terms they now dearly hold in preference for new terms that the employer proposes.

In my mind the balance of convenience has swung back towards the union and the need to protect the subject matter of the dispute and maintain the status quo until the arbitration is concluded.

For these reasons I grant the plaintiff’s application on the following terms.

Conclusion

Fiji Islands Revenue and Customs Authority is restrained by itself and also its servants and or agents and or howsoever in any manner whatsoever from proceeding further with the recruitment of positions advertised in the Fiji Times of the 29th of September, 2004.

The Fiji Islands Revenue and Customs Authority is further restrained in any manner whatsoever from implementing its job evaluation review project without the agreement of the plaintiff or until the determination of this action or until the award of the Permanent Arbitrator is given in a related trade dispute. However, this restraint is not to prevent the plaintiff or defendant from entering into good faith bargaining or any other form of alternate dispute resolution to resolve the subject matter of the dispute between them.

This is a temporary interim injunction. It will expire unless renewed at midnight on the 30th of November, 2004.

Leave is reserved to either party to come to Court on 3 working days notice for further directions.

The cost of this application is reserved and will form part of the costs in the cause.

Gerard Winter
JUDGE

At Suva
28th October, 2004