Suva City Council Staff Association v Suva City Council [1998] FJHC 1; Hbc0012d.98s (16 January 1998)

Fiji Islands - Suva City Council Staff Association v Suva City Council - Pacific Law Materials

IN THE HIGH COURT OF FIJI

AT SUVA

CIVIL JURISDICTION

CIVIL ACTION NO. 12 OF 1998

BETWEEN:

:

SUVA CITY COUNCIL STAFF ASSOCIATION
Plaintiff

AND:

SUVA CITY COUNCIL
Defendant

Mr. S. Parshotam for the Defendant

DECISION
(Interim Injunction)

This is an inter partes motion filed 6 January 1998 by the Plaintiff (the "Asot;Association") seeking an Order that the defendant (the "Council") by itself or through its servants and/or agents or otherwise howsoever be restrained from making or implementing the salary reduction and changes to leave allowance of the Association members as set out in the Council's letter to the Association dated 22 December 1997 until the final decision of the Permanent Arbitrator is received in the matter and/or until further order of this Court.

The grounds upon which the relief sought are set out in the affidavit of JALE TOKI (the General Secretary of the Association) sworn 5 January 1998.

The Council opposes the motion on the grounds contained in the affidavit of ILITOMASI VERENA KADAVU (the Acting Town Clerk/Chief Executive Officer of the Council) sworn 13 January 1998.

The motion was heard by me on 13 January 1998. Both Counsel made lengthy oral submissions and I have given due consideration to them. Because of the importance and urgency of the matter the Court sat after hours. I propose to this morning give a quick decision with detailed reasons to be given later (if need be).

Consideration of the issue

The facts of this case are confined to a very narrow compass. Very briefly, the Council is in financial difficulties and by a resolution at the Ordinary Full Council Meeting held on 18 December 1997 it decided, effective from 1 January 1998 "until such time the financial situation of the Council improves", there will be a "New Salary Structure" and that there will be "staggered pay cuts to be levied on all Salaried Staff and Unestablished Employees" as follows:

37% - $15,000 +

20% - $10,000 +

15% - below $10,000

15% - Unestablished Employees

There are also other changes such as Annual Leave and "all Acting Allowance/Responsibility Allowance to be frozen". The Council says in its said letter that these changes are "in line with the strategy to bail out the Council from its current severe financial crisis".

All these resolutions have been made effective unilaterally and without any prior consultation with the Association.

It is the Association's contention that the procedure adopted in implementing these changes are in complete contravention of the provisions of the Collective Agreement (as amended from time to time) (the "agreement") between the Association and the Council.

There is no doubt that there is this agreement which has been registered under the Trade Disputes Act. The parties to this action regarded themselves bound by its terms. In so far as this case is concerned under item 3 of the Preamble to the Agreement it is stated that the "procedure for appointment to Council staff and all conditions of employment are set out in the body of the Agreement".

Mr. Kapadia laboured the point that changes to salary should have been brought about in terms of the provisions of the Agreement. In clause 17 there is a procedure for grievance. He says that despite the Agreement the Council has unilaterally brought about a considerable reduction in the salary of the members of the Association.

Mr. Parshotam on the other hand in short is saying that what the Council has done is well within its powers in that, inter alia, the Council can reduce the salary as it has done pursuant to powers vested in it under s35 of the Local Government Act Cap. 125.

If what Mr. Parshotam is saying with reference to the provisions of the Local Government Act has any merit then the Agreement has no place at all in the scheme of things. This line of argument raises a barrage of questions. Such as, why have the agreement? Why has it been acted upon by the parties for so long? Is it not worth the paper it is written upon and fit to be thrown in the waste paper basket? Is it the case of a drowning man catching at a straw bearing in mind the Council's own admission in its said letter referred to hereabove that it is in dire financial straits with no indication when it will recover from its pathetic plight. Whether Mr. Parshotam is right or wrong in this regard can only be determined when the action is finally heard. It is not for me to delve into the merits or demerits of the arguments put forward at this stage by the parties in this application for an interim injunction suffice it to say that there is a serious question to be tried.

It is against the above background that I have to consider this application.

The law pertaining to interim injunctions is laid down by the House of Lords in AMERICAN CYANAMID CO v ETHICON LTD [1975] UKHL 1; (1975) A.C. 396. Injunctions are an equitable remedy and are within the Court's discretion. Injunction will be refused if the Plaintiff can be fully compensated by an award of damages. In LONDON & BLACKWELL RAILWAY CO v CROSS [1886] UKLawRpCh 7; (1886) 31 Ch.D. 354 at 369 LINDLEY L.J. said: "The very first principles of injunction law is that prima facie you do not obtain injunction to restrain actionable wrong for which damages are the proper remedy".

In considering this application I have borne in mind the principles governing the "balance of convenience" as stated by LORD DIPLOCK in the CYANAMID case (supra) where at p.510 he said:

"My Lords, when an application for an interlocutory injunction to restrain a defendant from doing acts alleged to be in violation of the plaintiff's legal right is made on contested facts, the decision whether or not to grant an interlocutory injunction has to be taken at a time when ex hypothesis the existence of the right or the violation of it, or both, is uncertain and will remain uncertain until final judgment is given in the action. It was to mitigate the risk of injustice to the plaintiff during the period before that uncertainty could be resolved that the practice arose of granting him relief by way of interlocutory injunction; but since the middle of the 19th century this has been made subject to his undertaking to pay damages to the defendant for any loss sustained by reason of the injunction if it should be held at the trial that the plaintiff had not been entitled to restrain the defendant from doing what he was threatening to do."

He goes on to say:

"The object of the interlocutory injunction is to protect the plaintiff against injury by violation of his right for which he could not be adequately compensated in damages recoverable in the action if the uncertainty were resolved in his favour at the trial; but the plaintiff's need for such protection must be weighed against the corresponding need of the defendant to be protected against injury resulting from his having been prevented from exercising his own legal rights for which he could not be adequately compensated under the plaintiff's undertaking in damages if the uncertainty were resolved in the defendant's favour at the trial. The court must weigh one need against another and determine where the balance of convenience lies."

Applying the above principles this is most certainly one such case where interlocutory injunction ought to be granted as one cannot foresee that the Association members would be adequately compensated in damages judging by the Council's admission that it cannot pay the original salary before the `cut'. Whether this situation has arisen because of mismanagement or some other cause can only be determined at the trial of the action but the fact remains that the axe has fallen on the Association members who have become one of the first victims of the Council's administration of the city of Suva.

There is a question of evidence involved and without hearing evidence I would not like to say anything about the Association's chances of success either fully or partially. I adopt the following words of LORD DENNING in HUBBARD v VOSPER (1972) 1 All E.R. 1023 at 1029:

".....In considering whether to grant an interlocutory injunction, the right course for a judge is to look at the whole case. He must have regard not only to the strength of the claim but also to the strength of the defence, and then decide what is best to be done."

Looking at the whole case, the question is, "where does the balance of convenience lie?" Sir ROBERT in CAYNE v GLOBAL NATURAL RESOURCES plc (1984) 1 All E.R. 225 at 237 describes the process thus: "the balance of the risk of doing an injustice better describes the process involved". Similarly, in FRANCOME v MIRROR GROUP NEWSPAPERS (1984) 1 W.L.R. 892 at 898E DONALDSON M.R. succinctly expressed the views which are apt here and fit to be applied to the facts and circumstances of this case. He said:

"I stress once again, that we are not at this stage concerned to determine the final rights of the parties. Our duty is to make such orders, if any, as are appropriate pending the trial of the action. It is sometimes said that this involves a weighing of the balance of convenience. This is an unfortunate expression. Our business is justice, not convenience. We can and must disregard fanciful claims by either party. Subject to that, we must contemplate the possibility that either party may succeed and must do our best to ensure that nothing occurs pending the trial which will prejudice his rights. Since the parties are usually asserting wholly inconsistent claims, this is difficult, but we have to do our best. In so doing we are seeking a balance of justice, not convenience."

The Association members claim to be entitled to the original salary before the `cut' but the Council says `no, they are not entitled' because it can change the salary structure on its own without consulting the Association (as argued by Mr. Parshotam). In such a situation the court has to consider the application of the principles set out in CYANAMID (supra) in relation to the grant or refusal of an interlocutory injunction where LORD DIPLOCK at p.407 stated:

"The court no doubt must be satisfied that the claim is not frivolous or vexatious; in other words, that there is a serious question to be tried. It is no part of the court's function at this stage of the litigation to try to resolve conflicts of evidence on affidavit as to facts on which the claims of either party may ultimately depend nor to decide difficult questions of law which call for detailed argument and mature considerations. These are matters to be dealt with at the trial."

Mr. Parshotam raised a number of issues relating to the grant of interlocutory injunction and the locus standi of the Association to make a claim on behalf of its members in the Writ of Summons herein.

I have considered his arguments in relation to the principles governing injunctions and have applied them to the affidavit evidence before me bearing in mind that the Association must show some evidence of its right.

On the basis of the affidavit evidence before me I am convinced that there is an arguable case for the Association and that there is a serious issue to be tried. That being the situation the question of balance of convenience, status quo and damages being an adequate remedy do arise.

In all the circumstances of this case, doing the best I can and "seeking a balance of justice" I do not think that the status quo should be disturbed. While on this aspect I would refer to section 5A(6)(b) of the Trade Disputes Act which provides that:

"No such employer shall take any action in respect of a dispute already referred to a Disputes Committee or Tribunal".

According to the evidence before me a Disputes Committee was about to be formed at the time of the hearing of this application for injunction. In any case if the matter goes before the arbitration tribunal this section will come into vogue. However, in the meantime since the Counsel has already commenced deductions from salary and before the dispute goes to the tribunal it is necessary that I grant the relief sought by the Association to which I consider it is entitled bearing in mind the principles governing the grant of interlocutory injunctions.

In the outcome, for the above reasons I order that the Council by itself or through its servants and/or agents or otherwise howsoever be restrained from making or implementing the salary reduction and changes to leave allowances of the Association members as set out in the Council's letter to the Association dated 22 December 1997 until further order of this Court AND it is further ordered that all deductions so far made from employees' salary be paid to them.

The costs are to be costs in the cause.

D. Pathik
JUDGE

At Suva
16 January 1998

Hbc0012d.98s