MURRAY ALAN GARDNER v. CATHAY PACIFIC AIRWAYS LTD

MURRAY ALAN GARDNER v. CATHAY PACIFIC AIRWAYS LTD

Section 22 construed as a standstill clause: rostering must continue as it was being applied at the time COS-99 was entered into (i.e. the new AFTLS provisions together with three specific older Appendix D provisions in Sections 2.6.A, 2.6.B and 2.6.C). CPA is not entitled to make unilateral amendments to rostering pending further agreement with the Union or final resolution of HCMP No.1679/1999. RP-01's changes converting 4-man to 3-man crew, altering duty-swap entitlement, and modifying the 5-4-3 days-off rule were substantial; plaintiff entitled to injunction and declaration restraining unilateral implementation.

Citation
MURRAY ALAN GARDNER v. CATHAY PACIFIC AIRWAYS LTD
Parties
Plaintiff: MURRAY ALAN GARDNER; Defendant: CATHAY PACIFIC AIRWAYS LIMITED
Court
Court of First Instance
Jurisdiction
Hong Kong
Judgment Date
10 April 2003
Case Number
HCA3390/2001
Procedural Posture
Employment Contract / Injunction / Trial Judgment (court of First Instance)
Outcome
Judgment for plaintiff: injunction and declaration granted restraining defendant from unilaterally implementing substantive changes to rostering in breach of Section 22 of COS-99
Legal Topics
Rostering Practices, Contract Interpretation, Unilateral Variation of Contract Terms, Injunction, Flight Time Limitations, Collective Bargaining / Industrial Disputes
Source Language
EN
Employment Law Contract Law Aviation Law Civil Procedure Rostering Practices Contract Interpretation Unilateral Variation of Contract Terms Injunction +2 more

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Parties

MURRAY ALAN GARDNER

Plaintiff

CATHAY PACIFIC AIRWAYS LIMITED

Defendant

Procedural Posture

Employment Contract / Injunction / Trial Judgment (court of First Instance)

Legal Issues

  1. 1 Construction of Section 22 of COS-99 (meaning of rostering reference)
  2. 2 Whether rostering in Section 22 incorporates Appendix D including AFTLS provisions (Sections 2-21)
  3. 3 Whether employer (CPA) can unilaterally amend rostering pending further agreement or resolution of HCMP No.1679/1999

Ratio Decidendi

Section 22 construed as a standstill clause: rostering must continue as it was being applied at the time COS-99 was entered into (i.e. the new AFTLS provisions together with three specific older Appendix D provisions in Sections 2.6.A, 2.6.B and 2.6.C). CPA is not entitled to make unilateral amendments to rostering pending further agreement with the Union or final resolution of HCMP No.1679/1999. RP-01's changes converting 4-man to 3-man crew, altering duty-swap entitlement, and modifying the 5-4-3 days-off rule were substantial; plaintiff entitled to injunction and declaration restraining unilateral implementation.

Court Disposition

Judgment for plaintiff: injunction and declaration granted restraining defendant from unilaterally implementing substantive changes to rostering in breach of Section 22 of COS-99

Orders

  • Injunction and declaration to be issued in favour of the plaintiff restraining CPA from unilaterally implementing substantial amendments to rostering pending further agreement between CPA and the Hong Kong Aircrew Officers Association or final resolution of HCMP No.1679/1999
  • Order nisi for costs in favour of the plaintiff; plaintiff's costs to be taxed if not agreed