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National Airline Employees Association of PNG v National Airline Commission [1992] PGLawRp 605; [1992] PNGLR 291 (6 November 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 291 - National Airline Employees Association of PNG v National Airline Commission�

[1992] PNGLR 291

N1126

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NATIONAL AIRLINE EMPLOYEES' ASSOCIATION OF PAPUA NEW GUINEA

V

NATIONAL AIRLINE COMMISSION, TRADING AS AIR NIUGINI

Waigani

Brown J

3 November 1992

5-6 November 1992

INTERLOCUTORY INJUNCTION - Claim to remain in premises pending determination of suit - Principles - Serious question to be tried - Balance of convenience.

WORDS AND PHRASES - 'Industrial proceedings' - Definition of.

Facts

National Airline Commission employees, aggrieved by their employer's termination of their service, claimed a right to remain in accommodation provided by the Commission pending the outcome of their claim for damages for unlawful dismissal. The proceeding was instituted by the Airline Employees Association on its members' behalf. It was not argued whether the Association had a "justiciable right" to sue, but the Court proceeded to deal with the interlocutory application, in its discretion to do justice in the circumstances of the case.

The Association claimed that the employees had a constitutional right to remain in their residences, separate from any rights they may have under common law.

The Commission claimed, as owner, a right to occupy its premises.

Held

N1>1.������ The threshold question of "justiciable right" in the Association to pursue its members' claims in this fashion must be addressed before the cause can proceed.

N1>2.������ These were not "industrial proceedings" within the technical or legal definition, and the Association has no right to sue on the termination by the employer of accommodation rights allowed to the employees. However, the Court has a discretion, in the interest of justice, to entertain the motion; and the discretion will be exercised since the interlocutory order sought reflected the interest of the Association in the welfare of its members.

N1>3.������ In the application of the relevant principles, while there might be serious questions to be tried, the balance of convenience clearly lay with the Commission when, even on the Constitutional argument, the best the aggrieved employees could expect would be damages for breach of the contract of employment.

Cases Cited

Papua New Guinea case cited

Robinson v National Airlines Commission [1983] PNGLR 476.

Other case cited

American Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 396.

Counsel

P Paraka, for the plaintiff.

P Payne, for the defendant.

6 November 1992

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.

That matter is the fact that this application has not been commenced by the individuals affected but by their union, the National Airline Employees' Association (the 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 I would suggest that a question of "justiciable right" in the present plaintiff to stand in the shoes of these various aggrieved employees must be first addressed.

I propose to deal with the motion which came before me for determination on 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 application 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 defendant's 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 of them were suspended by the National Airline Commission (the Commission) by notices dated 1 September 1992, giving cause for such suspension. Suspensions were lifted on 5 September. There is dispute as to what took place after that, the Commission contending that unlawful strikes occurred; but on 21 September, termination notices were issued to various employees giving 4 weeks pay in lieu of the notice, as is allowed by the "agreement" between the Commission and the Association. While the "agreement" is silent on the provision of accommodation for employees, the affected employees had accommodation supplied by the Commission. The Commission allowed those terminated one month to vacate the Commission's premises. That was extended by undertaking given this Court, but the undertaking expired on 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 Association's favour, it binds the Association but not a person who is not a party to the action. In other words, if the Association 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 Association argued that the serious question to be tried arose from application of the principles found in ss 41, 55, 46, and 47 of the Constitution. 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 said the freedom of expression has not been impugned by the Commission. The strike went ahead and, if the Industrial Organisations Act had been followed, the 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, the Association 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 Commission says it terminated them not for just cause, i.e. for engaging in an unlawful strike, but rather it 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, i.e. one month 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)? 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-weighs or is out-weighed by the injury which the Commission 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 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 jeopardized 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 at 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 Cyanamid Co v Ethicon Ltd [1975] UKHL 1; [1975] AC 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 party's case. 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, the Commission asserts that it owns the premises and, even were the employees still under contract to the Commission, their right of occupation is a permissive occupancy at the option of the Commission. 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 owner's 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 Commission's undertaking, given on 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 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 Commission 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.