Tlnz Auckland Ltd and C3 Ltd v Maritime Union of New Zealand Ltd Nzempc Ak
| Jurisdiction | New Zealand |
| Judge | B S Travis |
| Judgment Date | 13 March 2012 |
| Court | Employment Court |
| Docket Number | ARC 22/12 |
| Date | 13 March 2012 |
In the Matter of interim injunction
[2012] NZEmpC47
ARC 22/12
IN THE EMPLOYMENT COURT AUCKLAND
Application for interim injunction — defendants (“Ds”) were employees of stevedoring company (“P”) and refusing to load 57 blacklisted containers onto vessel docked at Port — application heard urgently — Ds claimed agreement they would work vessel but not blacklisted containers — P claimed work covered by plain wording in coverage clause in expired collective agreement — whether appropriate to grant interim injunction to make Ds load blacklisted containers.
Peter Chemis and Joss Opie, counsel for plaintiffs
Simon Mitchell and Kishen Kommu, counsel for first and second defendants
No appearance for third defendants
REASONS FOR ORAL JUDGMENT OF JUDGE B S Travis
These are my reasons for declining the interim injunctive relief sought by the plaintiffs in my oral judgment issued 7 March 2012. 1
The plaintiffs applied to the Court at 2.00 pm on Wednesday 7 March for without notice interim injunctions restraining a threatened strike by the third defendants and restraining the first and second defendants from inducing the third defendants to strike. Mr Chemis, counsel for the plaintiffs, sought to have the ex-parte application heard urgently on the basis that if the strike proceeded, the plaintiffs would incur loss and third parties would be affected. He submitted that if the orders were made, the employees would merely complete their normal duties and suffer no loss, damage or hardship.
In a covering letter filed with the Court documents, Mr Chemis observed that in the past, the first defendant union (the union or MUNZ) had been represented by Mr Simon Mitchell and Mr Peter Cranney and he advised that a copy of the proceedings and his covering letter were forwarded to them by email and telephone contact had also been made. After reading the papers, I convened a telephone conference call with counsel which took place at 3.10 pm on the Wednesday, even though at that stage sworn affidavits in support of the application had not yet been filed.
Mr Mitchell represented the union and the second defendants, who are union officers. In the conference, Mr Mitchell claimed that an agreement had been reached between the plaintiffs and the union as to the terms on which the vessel in question, the Maersk Radford (the vessel), would be worked. This agreement allegedly excluded 57 containers which the union's members would not load (the blacklisted containers).
Mr Mitchell also advised that the defendants intended to oppose the injunction application on the grounds that this was not a strike, because the third defendants were under no contractual obligation to move the blacklisted containers. If they were required to do so by an injunction, he contended, this might have implications under s 97 of the Employment Relations Act 2000, (the Act), which deals with the performance of the duties of striking or locked out employees by other persons.
Mr Mitchell advised that he would be filing an affidavit from Russell Mayn, the third named of the second defendants, dealing with these matters. He also gave notice of a desire to cross-examine the plaintiffs' main deponent, Warren John Pritchard, the General Manager Employee Relations of the second named plaintiff, C3 Limited (C3) on whether there had been an agreement reached between the plaintiffs and the union and as to the terms of the third defendants' employment.
Mr Chemis assured me that these were issues which had not been anticipated by the plaintiffs and that was why they had not been covered in the affidavits filed in support of the ex parte application. He advised that he would need to obtain instructions. I accepted his assurances.
Because the vessel was due to be loaded with the blacklisted containers at the Port of Auckland at around 1.00 am on Thursday 8 March, and because there were contested factual matters at the heart of the ex parte application, I directed that it was not to proceed ex parte. I considered that the fullest opportunity that could be given in the circumstances for both parties to be able to present their respective cases required a hearing to be convened that evening. In the event, it was convened at 8.00 pm to permit sufficient time for Messrs Chemis and Opie to travel from Wellington to Auckland.
The first plaintiff, TLNZ Auckland Limited (TLNZ), is a stevedoring company in Auckland, involved in an essential service as defined in schedule 1 to the Employment Relations Act 2000. It is a wholly owned subsidiary of the second named plaintiff, C3. It is alleged that due to an error some time ago, the relevant collective agreement with the union was concluded by C3 and not TLNZ and that the plaintiffs and the union were still working through this issue. The union denies this was an error. Because of the urgency surrounding this application, it was agreed by the parties that no issue would be taken about this matter and the hearing would proceed on the basis that C3 was the employer of the third defendants in an essential service. The collective agreement with C3 and the union expired in 2011.
C3 employs approximately 22 permanent members of the union to work as stevedores in the container terminal at the Port of Auckland. Although it is not referred to in the affidavits filed in support of the application, I presumed that these are the 22 persons named in the first schedule to the statement of claim as the third defendants.
Mr Pritchard has deposed that negotiations are ongoing for a new collective agreement but these have been delayed pending the outcome of the industrial issues between the union and Ports of Auckland Limited (POAL). Another reason is said to be that the plaintiffs are attempting to restructure their Auckland business with the aim of avoiding it having to close on financial grounds. Although it is not clear from the affidavits, it appears that the Auckland business being referred to is that of TLNZ. This has apparently been running at a considerable loss, which losses are compounding each month. Work for six vessels per month has also recently been lost due to a reconfiguration of services and there has been the loss of other customers. Apparently, TLNZ has gone through a restructuring process which led to recent redundancies.
In spite of this, it is said that TLNZ and C3 are substantial companies capable of meeting their obligations under the undertaking as to damages they have provided as part of the proceedings. No details of the financial affairs of C3 and TLNZ were provided to enable the Court to assess the worth of the undertaking.
The vessel was said to have docked at the port at approximately 3 pm on 7 March and was being unloaded by C3 employees while the hearing of the interim injunction was proceeding. TLNZ has an oral contract with Maersk to load and unload the vessel. The revenue that would be obtained, if this contract were completed, is said to be in the region of $60,000 which is claimed to be substantial revenue for this part of the business. It is said to be critical revenue at a time when this part of the business is under significant financial pressure and, if it is paid, it will be the first time this part of the business has been in profit for some months.
At about 1.00 am on 8 March 2012, the vessel was to be reloaded with containers currently at the port. These included the 57 blacklisted containers, which allegedly have been handled by non-union labour.
Mr Pritchard deposed that he believes that the blacklisted containers will not be loaded onto the vessel by the union's members, the third defendants. Mr Pritchard deposed that this belief was formed as a result of discussions with Garry Parsloe and Mr Mayn, two of the second defendants, respectively the President and the Secretary/Treasurer of the union's Auckland branch. Mr Pritchard deposed that, if the 57 blacklisted containers were not loaded before the vessel sailed, TLNZ would lose its contract and this would cause the plaintiffs considerable financial loss now and may also affect future opportunities with Maersk, one of the most important shipping companies. He stated that if the vessel sailed without the 57 containers and this caused Maersk loss, that company may look to the plaintiffs to recover that loss. He also deposed that failure to load the containers would inconvenience and may cause loss to third parties waiting for the delivery of their cargo. Further, if the containers were not moved promptly, he deposed that this would cause congestion and inconvenience at the Port of Auckland and additional costs to the plaintiffs, as they would be held liable for meeting the costs of keeping them at the Port. He deposed that this inconvenience would be worse if the employees also refused to handle other containers.
Mr Mayn's affidavit asserted that moving the blacklisted containers was not the usual business of C3, which provided stevedoring services for general cargo vessels and not pure container vessels. He also deposed that the vessel would be worked at the Bledisloe Terminal which is solely a container wharf, as is the Fergusson Terminal, and they are not wharves where C3 performs its stevedoring services. He asserted that the blacklisted containers would have been worked, but for the strike affecting POAL, by POAL stevedores. That assertion did not appear to be in issue.
Mr Mayn accepted that Mr Pritchard had been in discussions with him, Mr Parsloe and Dave Phillips, (the Walking Delegate) who is the other named second defendant, about the issue of the 57...
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