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Fiji Sugar General Workers Union v General Machinery Hire Limited [2006] FJHC 86; HBC 217.2005 Fiji (13 January 2006)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CIVIL JURISDICTION

ACTION NO. HBC217 OF 2005

BETWEEN

FIJI SUGAR GENERAL WORKERS UNION
a duly registered trade union under the Trade Union Act, Cap 96.
PLAINTIFF

AND

GENERAL MACHINERY HIRE LIMITED
a limited liability Company having its registered office
at Bouwalu Street, Lautoka in the Republic of Fiji Islands.
DEFENDANT

Sherani & Co for the Plaintiff (City Agents: Young & Associates)
Pillai Naidu & Associates for the Defendant (City Agents: S B Patel & Co)

Date of Hearing: 16 September 2005
Dates of Filing Affidavits: 30 September and 7 October 2005
Dates of Submissions: 28 October, 18 November & 25 November (extended to 27 December) 2005
Date of Ruling: 13 January 2006

INTERLOCUTORY RULING OF FINNIGAN J

I have before me the submissions of Counsel about continuation of an Interim Interlocutory Injunction against the Defendant.

The substantive matter is an Originating Summons filed on 10 August 2005 in which the Plaintiff seeks an order or declaration that the Defendant, by requiring its employees to become members of its in-house association is acting contrary to a Compulsory Recognition Order which was made on 5 July 2004 and is in breach of Section 59 of the Trade Unions Act and in breach of Sections 32 and 33 of the Bill of Rights in the Constitution.

The interlocutory relief was originally sought by ex-parte motion and I directed that it proceed inter-partes. After hearing Counsel and reading the one affidavit in support I made three restraining orders against the Defendant effective until 16 September 2005. I directed the Defendant to file and serve any affidavit in reply by 15 September and on 16 September none had been filed so I set a further timetable for affidavits (above) them a timetable for Counsels' submissions (above) after which, this ruling.

The further affidavits have been filed, and the submissions. Both Counsels have addressed in their submissions the facts of the substantive matter. I can make no decision about those but what appears in the affidavits and the submissions makes it entirely clear that there is a serious issue to be tried. The Plaintiff claims that the Defendant is in breach of several serious obligations. This claim must be tried and tried without much further delay. Not only are rights involved, but the rights concerned are those of a class of persons. In addition the dispute is about conditions in a work place.

Thus the first guideline in American Cyanamid [1975] UKHL 1; [1975] AC 396 to which both Counsel referred me, is satisfied.

The next guideline is whether damages would be an adequate remedy to the Plaintiff if the interim injunction is discharged and the Plaintiff is found in the substantive judgment to have been deprived of that to which it was entitled. The Courts have frequently held that damages have been a remedy for workers deprived of their rights. The question at present however is whether damages are adequate. What is claimed is breach of statutory and constitutional obligations and damages can never be an adequate remedy for that. Would damages adequately compensate the Defendant if the interim injunction remains in force and the Defendant is ultimately found to have been deprived thereby of that to which it is entitled? In my view it would more readily be compensated in these circumstances by an award of damages than would the Plaintiff.

By what I have just said I have also decided the balance of convenience. From the affidavits and from the submissions I have no doubt at all that the interlocutory relief, already expressed as being till further order of the Court, should now be confirmed.

Order:

I therefore order as follows:

1. The Defendant as employer is restrained from requiring any employee or prospective employee to join its in-house Association.

2. The Defendant as employer is restrained from dismissing any employee for failing to join the in-house Association.

3. The Defendant as employer is restrained from dismissing any employee for any cause except by way of suspension and subject to justification by the Defendant to the Court.

4. These orders will remain in force until determination of the substantive matter herein, unless earlier discharged or varied by the Court.

As previously, I reserve, the issue of costs. The matter will now be placed in the list on Friday 17 February 2006 to allocate a date suitable for Counsel for hearing the substantive matter. I have become aware while preparing this ruling of another matter related to this one, HBJ15/2004, an application by the Defendant for Judicial Review. That matter also will be called on 17 February 2006.

D.D. Finnigan
JUDGE

Lautoka
13 January 2006