Tlnz Auckland Ltd and C3 Ltd v Maritime Union of New Zealand Ltd Nzempc Ak

 
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[2012] NZEmpC47

IN THE EMPLOYMENT COURT AUCKLAND

ARC 22/12

In the Matter of interim injunction

Between
Tlnz Auckland Limited And C3 Limited
Plaintiffs
and
Maritime Union of New Zealand Limited
First Defendant
Garry Parsloe, Dave Phillips, And Russell Mayn
Second Defendants
James Jennings And 21 Others
Third Defendants
Counsel:

Peter Chemis and Joss Opie, counsel for plaintiffs

Simon Mitchell and Kishen Kommu, counsel for first and second defendants

No appearance for third defendants

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.

At issue was whether it was appropriate to grant an interim injunction to make the Ds load blacklisted containers.

Held: This application was for all intents and purposes an application for final judgment, as the vessel was due to set sail in a few hours. This meant that P had to demonstrate that it had a “meritorious substantive case”, since the Ds would have little or no opportunity to appeal the decision if the injunction was granted and would be deprived of the opportunity for a full hearing to determine the matter on its merits. Lyttelton Port Co Ltd v Maritime Union of New Zealand Ltd set out the three issues to be addressed when deciding whether to grant interlocutory injunctive relief.

The first issue was whether P had a strongly arguable case. It was accepted that the work on the vessel was not the usual work of the employees and was indeed very unusual. However it was arguable that the coverage clause was wide enough to contemplate such work. There was a dispute as to whether the work was covered by the wording of the agreement and this issue should more properly have been deal with as a dispute.

There was no correspondence relating to coverage. More importantly, there had been no communication from P to the union or its employee members directing them to perform the work. This undermined the strength of the contention that the work in question was clearly within coverage. There was in fact a serious issue to be tried as to coverage, but it was not as strongly arguable as P asserted. It could not be said with any degree of certainty that P's contention would have been upheld if the matter proceeded to trial with full disclosure.

The second issue was where the balance of convenience lay. If the injunction were granted, the Ds would be required to carry out work that they disputed was required under the coverage clause of the expired collective agreement and thereby possibly require them to work in breach of that agreement. P's undertaking as to damages would have been of no practical value to the Ds. There would be no economic loss to the Ds and it was unlikely there could be any realistic assessment of non-economic distress of humiliation losses. On the other hand the P's loss was half the value of the work in relation to the vessel. There would be some residual inconvenience to third parties whose containers would not be delivered quickly. The balance of convenience marginally favoured P.

The third issue required that the overall justice of the case be weighed. There was compelling evidence that an agreement had been reached to perform work on the vessel but subject to the condition that the blacklisted containers would not be moved. The argument on coverage was finely balanced and could not be said to firmly favour injunctive relief, particularly as there was no evidence that P ever asserted to the Ds that they had the right to direct the work be carried out or gave them any order to that effect.

There was an argument that there was undue delay in commencing the proceedings as a manager was aware of the situation five days before injunctive relief was applied for. The delay was another discretionary factor against the grant of relief sought at the last minute.

There were implications in respect of a possible breach of s97 ERAct (performance of duties of striking or locked out employees). It was arguable that POAL would be engaging P's employees when P performed the contract in respect of the loading of the ship. This could constitute a breach of s97(2) ERAct ( Air Nelson Ltd v New Zealand Amalgamated Engineering, Printing and Manufacturing Union Inc). If the injunction was granted, it would arguably require the Ds to perform work, which was not their usual work, in a vessel of a type which they did not service, on a wharf which was solely under the control of POAL for its own employees, but for the strike, and which they did not consent to perform.

The analysis of the overall justice of the case required the interim relief to be declined.

Application declined.

REASONS FOR ORAL JUDGMENT OF JUDGE B S Travis

1

These are my reasons for declining the interim injunctive relief sought by the plaintiffs in my oral judgment issued 7 March 2012. 1

The proceedings
2

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.

3

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.

4

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).

5

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.

6

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.

7

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.

8

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.

Background from the affidavits
9

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.

10

C3 employs approximately 22 permanent members of the union to work as...

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