N1126

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

WS NO. 835 OF 1992

NATIONAL AIRLINE EMPLOYEES' ASSOCIATION OF PAPUA NEW GUINEA
Plaintiff

-v-

NATIONAL AIRLINE COMMISSION trading as AIR NIUGINI
Defendant

Waigani: Brown J.
1992: 3, 5 & 6 November

Interlocutory injunction - claim to remain in premises pending determination of suit - principles - serious question to be tried - balance of convenience.

Employees aggrieved by their employers termination seek to remain in accommodation provided by the Commission pending the outcome of their claim for damages for unlawful dismissal. The proceedings had been instituted by the Union or Association of airline employees on their members behalf. A "justiciable right: in the Association to sue in this instance was not argued, but the Court proceeded to deal with the interlocutory application, in discretion to do justice in the circumstances of the case.

The Association claimed a constitutional right to remain, separate from any rights the various employees may have under common law.

The balance of convenience related to the terminated employees difficulty in finding alternate accommodation in Port Moresby while the Commission claimed as owner a right to occupation of its premises.

The facts appear from the judgment.

Held: 

(1) 	While serious questions to be tried may arise, he balance of convenience clearly lay with the Commission when, even on the Constitutional argument, the best the aggrieved employees could expect would e damages for breach of the contract of employment.

(2) 	The threshold question of "justiciable right" in the Association to pursue to employees claims in this fashion must be addressed before the cause can proceed.

Notice of Motion

Mr P. Paraka, for the plaintiff
Mr P. Payne, for the defendant

BROWN J.: I want to deal with a matter lastly raised by Mr Payne now for it will have a bearing on the serious question to be tried aspect.

That matter is the fact that this application has not been commenced by the individuals affected but by their union, the N.A. Employees Association. The right of an aggrieved employee in my view to sue an employer cannot be subsumed in any rights that the union has under an industrial award to represent members in industrial proceedings. These are not "industrial proceedings" within a technical or legal definition and the right of the union to sue for damages for unlawful termination which is alleged here, has not been shown, rather the right to sue must remain with the aggrieved employee. The point has not been argued but a question of "justiciable right" in the present plaintiff to stand in the shoes of these various aggrieved employees must be addressed I would suggest.

I propose to deal with the motion which came before me for determination on the 3 November and which has been argued since.

I consider, since the question has not been properly addressed by counsel and the interlocutory orders sought reflect the interest of the union in the welfare of its members, in the exercise of a discretion, to do justice in the circumstances of this case, the Court can entertain the preliminary application. That is in these terms -

"That the Defendant be restrained from evicting members of the Plaintiff Union from their company residences until the claims as to unlawful dismissals and suspensions contained in the W.S. No. 835 of 1992 are finally determined by the Court of Law".

The argument then turned on whether there is a serious question to be tried and on a second enquiry required by the Court, the balance of convenience.

The circumstances which give rise to the application are to all intents and purposes, agreed. The reasons for the defendants actions give rise to the plaintiff's (using the term loosely) substantive claim for relief. Following industrial action by members of the union a number were suspended by the Commission by notices giving cause for such suspension, on the 1 September last. Suspensions were lifted on the 5 September last. there is dispute as to what took place after that, the Airline contending that unlawful strikes occurred, but on the 21 September termination notices issued to various employees giving 4 weeks pay in lieu of the notice required, relying on the "Agreement". While the "Agreement" is silent on the provision of accommodation for employees, these affected employees had accommodation supplied by the Commission. The Commission allowed those terminated one month to vacate the Commissions premises. That was extended by undertaking given this Court, but the undertaking expired on the 2 November. On that day this application was filed.

The argument on the first point, the serious question to be tried is clouded by that query I raised about the right of the union to seek orders for if an order was made in the Unions favour it binds the Union but not a person who is not a party to the action. In other words if the Union was successful and orders were made permitting employees to reside in Air Niugini residences, are they to remain vacant if the particular person declines to take advantage of the order, or can that particular person put into the residence whoever he or she likes. Nevertheless I propose to treat the application as if the respective aggrieved employees had brought proceedings.

Mr Paraka for the Union argued that the serious question to be tried arose from application of the Constitutional principles found in ss 41, 55, 46, & 47. Mr Payne addressed those various constitutional principles and said in the circumstances of this case, the notice given was not harsh or oppressive. It followed from the terms of an award. He said that s 41 had been judicially considered. It really provided an avenue for review of administrative acts, not as proposed here, a cause of action affecting private contracts of employment.

He says the freedom of expression has not been impugned by the Airline, the strike went ahead and if the Industrial Organisations Act had been followed strike action would have been legal. But the procedures were not followed consequently the strike was illegal. Until the Industrial Organisations Act or parts are struck down by the Supreme Court as unconstitutional then the Union cannot say the termination of employees obstructed or affected their freedom of expression. The strike may have been instrumental in affecting the workers, because they were subsequently terminated. But the Airline says it terminated them, not for just cause i.e. for engaging in an unlawful strike, but rather terminated them on notice provided for by the industrial award which was in evidence.

Whether that award applied or not was the subject of argument. It was plain that on the wording of s 44(2) of the Industrial Relations Act and looking at the Award itself, there seems to be a clear intention to extend the terms of the award beyond the 3 year term. That would avoid a hiatus in relations between the employer/employee. A court is encouraged to find the basis for a continuing relationship rather than allow a hiatus or break.

So it seems if salary was paid beyond the 3 year period then the award comes into play. Nevertheless there is an argument or serious question. Those may be identified then as firstly were the procedures followed by the Airline leading up to the termination proper?. On the material read, it is difficult to determine because of the paucity of evidence. These Constitutional arguments do not appear very strong, however and would seem to imply if not a total abrogation of employment law, a serious change to the currently understood relationship. Secondly, was the termination on notice as provided for in the award, ie. one months pay in lieu of working for that period, or as Mr Paraka says in fact for cause (even though the notice made no mention of the reasons given in the previous suspension notice) and thirdly, was the award in fact continued, and if not what was the basis of termination.

I do find those at least, to be serious questions. I go now to the second principle, the balance of convenience.

Here the inquiry is "whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused out weights or is out weighed by the injury which the Airline would suffer if an injunction were granted". It's here that the plaintiff's case flounders for I follow the decision on similar facts by this Court in Robinson's case [Robinson v. National Airlines Commission [1983] PNGLR 476].

There the Court reiterated principles previously applied. The headnote effectively sets out those principles - 

"An interlocutory injunction, the purpose of which is to preserve the status quo, will be granted where just and convenient: the plaintiff must prove that he has a serious, not a speculative case, which has a real possibility of ultimate success and that he has a legal or equitable right, title or interest which might be jeopardised if the injunctive relief were not granted: it is then for the court to determine whether nonetheless the injunction should not go taking into account such factors as the adequacy of damages as a remedy, the possibilities of alternative remedies, whether there has been any laches or delay, the strength of the grounds of defence, what if any undertakings the defendant is prepared to give and most importantly, hardship and the balance of convenience.

The trial Judge, Andrew J. said @ 481 -

"The servant cannot claim specific performance of the contract of employment. Nor can he claim wages as such after the relationship has determined. He is left to his remedy in damages against the master for breach of the contract to continue the relationship for the contractual period".

Since then the case American Cyanamide Co v. Ethicon Ltd (1975) A.C. 396 has been approved and applied in this Court. It varies the test somewhat. I must now make an assessment of the relative strengths of each parties cases. However, it must be made plain that as the law stands on the strength of Robinson's case, even accepting the possibility of an eventually successful constitutional challenge there remains only the constitutional right to damages under s 58. The Constitution cannot force the continuation or adoption of a contract of service between employers or employees which one party is clearly unwilling to carry out. On the relative strengths of the parties cases, the balance rests with the Commission.

Further the applicant should give an undertaking as to damages before the Courts will entertain applications which affect proprietary rights. Here Air Niugini asserts that it owns the premises and even were the employees still under contract to the Airline, their right of occupation is a permissive occupancy at the option of the Airline. There is no evidence to the contrary. No undertaking as to damages has been given and that in itself does nothing to convince me to exercise a discretion which would adversely affect an owners right to enjoy his property.

I wish to comment on two newspaper reports in the Post Courier of Thursday and Friday. Both clearly misstate the facts. The Airlines undertaking given on the 23 October 1992 before my brother Judge Amet to allow members of the Association who are terminated to remain until 2 November on the premises that they occupied, expired on that day. On the 3 November when this application came before me I was asked but refused to make interim orders enforcing a stay of eviction proceedings until the matter was argued on Thursday of this week. The undertaking had expired and it is not correct to say as these newspaper reports state, that the Airline was in breach of a Court order. 

I am concerned that a mischief will be continued if I do not correct this reporting.

The motion is dismissed. I award costs in favour of the respondent.

____________________________________________

Lawyer for the Plaintiff: Kirkes
Lawyer for the Defendant: Blake Dawson Waldron