Cathay pilot wins injunction against forced roster change
The High Court ruling may have implications for other members of the airline's 1,600 cockpit crew
SARA BRADFORD
South China Morning Post - April 11, 2003
--------------------------------------------------------------------------------
(Captain Murray Gardner leaves the Court of first Instance. His solicitor said he was happy. Picture by Edward Wong)
Cathay Pacific breached the employment contract of one of its pilots when it changed his rosters and forced him to accept an increased workload, a court ruled yesterday.
Although the decision only applies to Captain Murray Gardner, the fall-out may extend to the rest of the airline's 1,600 cockpit crew.
In granting Mr Gardner, 43, an injunction to block the change in rostering practices, the court has declared that the airline breached a contractual agreement, known as COS-99, that it had entered into with the Hong Kong Air Crew Officers' Association on July 1, 1999.
It has also opened the door to damages claims by Cathay pilots who believe they have suffered due to the unilateral amendment to the rostering practice.
A spokesperson for Cathay Pacific said the airline was considering the implication of yesterday's 46-page judgment.
Rostering practices are one of the key points of contention between the airline and the pilots' union in their on-going industrial dispute.
Mr Gardner had argued at the Court of First Instance that under the COS-99 agreement, rostering practices could not be amended without accord between the airline and the union or the resolution of a legal action. That action, which began on March 19, 1999, and is yet to be finalised, involves 704 pilots seeking a declaration that the Rostering Practices "are and were incapable of unilateral amendment or variation by [Cathay]".
Cathay, however, argued that rostering practices could be unilaterally amended as they were lifestyle and money issues and not subject to legal requirements as set out in the Approved Flight Time Limitation (AFTL) scheme. It also said that it should be permitted unilaterally to amend the rostering practices in the interim until either an agreement was reached or the legal action was resolved, provided the changes were not substantial.
But Mr Justice Arjun Sakhrani said that at the time the COS-99 agreement was made, no distinctions were made between rostering practices and the AFTL provisions. He added that if the parties had intended the airline to be able unilaterally to amend rosters in the interim period, it would have been drafted into COS-99.
Mr Justice Sakhrani found Mr Gardner was entitled to an injunction to block the change in rostering practices. "[Mr Gardner] also said, and I accept, that he found it distressing to be forced to accept the unilateral amendments made by [the rostering changes]," he said. "These were made without further agreement between the union and Cathay Pacific Airways or the final resolution of the [legal] action."
Mr Justice Sakhrani said he believed the majority of the rostering changes did place an increased burden on Mr Gardner.
One of the changes included using a minimum of three pilots on long-haul flights instead of four, which Mr Justice Sakhrani said would have caused extra stress. Another was the loss of the entitlement of a duty swap to enable a pilot to arrange time off at short notice for personal or other reasons.
Mr Justice Sakhrani said a reduction of the number of days off after long-haul flights also eroded Mr Gardner's contractual rights.
Mr Gardner's solicitor, Michael Lintern-Smith, said yesterday his client was happy with the decision.
"The court has now declared that they were implementing an illegal rostering system," he said.
Mr Lintern-Smith also said any other crew who felt they had been distressed by the change were also entitled to seek an injunction and claim damages. He said his client did not pursue damages becausehe wanted the matter settled.
Cathay pilot wins injunction against forced roster change