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

• Jurisdiction: New Zealand
• Judge: GL COLGAN
• Judgment Date: 07 March 2012
• Court: Employment Court
• Docket Number: CRC 9/12
• Date: 07 March 2012

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

[2012] NZEmpC 44

judge/s

Judge Colgan

CRC 9/12

IN THE EMPLOYMENT COURT CHRISTCHURCH

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.

Appearances:

Rob Towner, counsel for plaintiff

Peter Cranney, counsel for first defendant

Geoff Davenport, counsel for second defendant

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 so, the second question is where the balance of convenience will lie between them pending substantive judgment. The third consideration is whether the overall justice of the case warrants the making of an interlocutory injunctive order because it is equitable and discretionary.

8 The defendants contend that what they accept will be otherwise unlawful strike action will nevertheless not be so because their members are not required to perform the work that they will refuse to do. This argument relies on an interpretation and application of s 81 of the Act which provides:

81 Meaning of strike

• (1) In this Act, strike means an act that—

  • (a) is the act of a number of employees who are or have been in the employment of the same employer or of different employers—

    • (i) in discontinuing that employment, whether wholly or partially, or in reducing the normal performance of it; or

    • (ii) in refusing or failing after any such discontinuance to resume or return to their employment; or

    • (iii) in breaking their employment agreements; or

    • (iv) in refusing or failing to accept engagement for work in which they are usually employed; or

    • (v) in reducing their normal output or their normal rate of work; and

      • (b) is due to a...