Lyttelton Port Company Ltd v Maritime Union of New Zealand Inc.

 
FREE EXCERPT

[2012] NZEmpC 44

IN THE EMPLOYMENT COURT CHRISTCHURCH

judge/s

Judge Colgan

CRC 9/12

In the matter of an application for injunction

Between
Lyttelton Port Company Limited
Plaintiff
and
Maritime Union Of New Zealand Inc
First Defendant

and

The Rail And Maritime Transport Union Inc
Second Defendant
Appearances:

Rob Towner, counsel for plaintiff

Peter Cranney, counsel for first defendant

Geoff Davenport, counsel for second defendant

Application for an interlocutory injunction to prevent anticipated unlawful strike action — unions called on members working for Port Company not to work a ship that had been loaded by non-union members in Auckland while their union colleagues had been on strike — whether intended action met the definition of strike under s81 Employment Relations Act 2000 (Meaning of strike) and therefore was unlawful — whether interim relief should, on balance of convenience be granted.

Held:

The collective agreement provided that the affected employees were usually employed in the berthing, unloading, loading, and departure from port of cargo vessels or container ships. This work was not defined by reference to where those vessels were docked previously, or whether the employees who worked on them were members of a particular or any union. It was “usual” or “normal” for non-union employees to work on vessels while they were docked at different ports.

Unless the intended action did not qualify as a strike under s81ERA, it was clearly unlawful because it would be undertaken by employees who were subject to a current collective agreement with LPCL. Further, strike action could only be given on no less than 14 days' notice in respect of the port's operations. No notice in the required statutory form had been given.

The intended black banning of the Lisa Schulte met the definition of a strike under s81(1)(a)(iv) (refusing to accept work for which normally employed) and s81(1)(a)(v) (reducing normal output or rate). It would amount to partial discontinuance of the employment of the employees or a reduction in the normal performance of it under s81(1)(a)(i) ERA and would also amount to the breaking by the employees of their employment agreements under s81(1)(a)(iii). It followed that there was a very strong argument of unlawfulness of the proposed strike action.

The balance of convenience in the case favoured LPCL as it was likely to suffer potential loss of income and commercial reputation. Although it was important that the unions signal their solidarity for their Auckland members, the law did not favour their doing so by strike action in this case.

Good faith and the ability to strike and lock out had to co-exist and a balance had to be achieved between those obligations and rights under the ERA. The legislation was very clear about lawful and unlawful strike action. It would not be proper for the court to exercise its discretion to decline the injunctive relief.

The exercise of the court's residual discretion to grant the injunctive order followed the strong arguable case and balance of convenience findings.

Injunction granted. Mediation directed.

ORAL JUDGMENT OF CHIEF JUDGE GL COLGAN

GL COLGAN
1

A little more than 24 hours ago the application for an interlocutory injunction to prevent anticipated unlawful strike action was filed and shortly afterwards there was a telephone conference call with counsel for the parties. Today's hearing, which began shortly after 4.30 pm, was arranged, giving the greatest time available to the defendants in particular to prepare for this hearing before the events said to constitute unlawful strike action were scheduled to commence.

2

About now, literally, a container ship known as Lisa Schulte is scheduled to arrive at the Port of Lyttelton to discharge and load cargo. The stevedoring company responsible for the vessel's berthage and cargo turnaround is Lyttelton Port Company Limited (LPCL). LPCL also owns and operates Lyttelton Port. Unless required to do so by injunctive order, members of the defendant unions, who are employed by the plaintiff to do this work, will not do so. In these circumstances, and even if the vessel is able to berth, the loading and unloading of cargo will be at least significantly delayed, affecting the vessel's sailing schedule, the ability of the plaintiff to make money from its stevedoring operations, and a range of other persons who will be unable to have their cargoes unloaded and loaded as scheduled.

3

This situation arises because the Lisa Schulte has previously berthed at the Port of Auckland where members of the first defendant have been until very recently at least, and may still be, on strike. The Lisa Schulte was apparently, however, able to be worked in Auckland but by a combination of waterside workers who are not members of the Maritime Union of New Zealand Inc (MUNZ) (and who are not therefore on strike) and port company managerial staff. Although there has been reference by some to the Lisa Schulte having been worked by “scab” labour in Auckland, there is no suggestion that this involved illegality and, in particular, any breach of s 97 of the Employment Relations Act 2000 (the Act) which governs the engagement and deployment of strike and lockout breaking. Although such persons as worked on the Lisa Schulte in Auckland may have done so within sight of a MUNZ picket line, it seems they are entitled in law to have so worked and not to be members of that union or any union. So in Auckland at least and in relation to this vessel, it was not a situation of members of one union crossing the picket line of another.

4

The position in Lyttelton is different. Members of both defendant unions are engaged at this port and I assume the plaintiff is unable to service the Lisa Schulte without recourse to members of one or both unions, at least in the time that it has contracted to do so.

5

There is no argument that both unions have called on their members not to work the Lisa Schulte or indeed other vessels that may have called recently at Auckland and have been worked in the same circumstances. It is a distinct possibility, if not probability, that there will be other vessels, with the same voyage pattern as the Lisa Schulte, arriving subsequently at Lyttelton Port.

6

As is well known, this is the third in a series of interim injunction applications heard in as many days involving the same general dispute but relating to different ports. Last Sunday evening, the Court in Auckland made interlocutory injunctive orders in proceedings relating to Port of Tauranga Limited in which the Rail and Maritime Transport Union Inc (RMTU) was a party. The Judge's reasons for those orders are contained in two judgments 1 issued yesterday. Yesterday afternoon the Court in Wellington granted interlocutory injunctive relief to CentrePort Wellington Limited in respect of a vessel there but not being worked. 2

7

As those judgments illustrate and this does, the Court must address three questions in determining whether to grant interlocutory injunctive relief. The first is whether there is a serious arguable case for trial substantively between the parties. If...

To continue reading

REQUEST YOUR TRIAL