MURRAY ALAN GARDNER v. CATHAY PACIFIC AIRWAYS LTD

HCA 3390/2001

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

ACTION NO. 3390 OF 2001

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J U D G M E N T

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Introduction

1. The plaintiff is a pilot employed by the defendant Cathay Pacific Airways Limited ("CPA"). The plaintiff seeks an injunction and a declaration relating to his rights under his contract of employment incorporating the terms of Cathay Pacific Aircrew Conditions of Service (1999) ("COS-99") which took effect on 1st July 1999. There is no claim for damages.

2. By a letter dated 19 July 2001 from CPA to all its aircrew officers, including the plaintiff, CPA informed them that with effect from 1st August 2001 there would be amendments to Rostering Practices. The plaintiff contends that these amendments were made unilaterally by CPA in breach of the agreement reached in COS-99 in particular, Section 22 thereof. Despite the plaintiff's objections made by him and through the Hong Kong Aircrew Officers' Association ("the Union"), CPA implemented the amendments to the Rostering Practices effective from 1 August 2001 ("RP-01"). This led to the institution of these proceedings by the plaintiff as the sole plaintiff against CPA for the relief sought.

The Agreed Issues

3. The Agreed List of Issues identified the issues as follows :

“ 1.	On the true construction of S.22 of COS- 99 what is the rostering that is covered by "Rostering Practices and Procedures for Cockpit Crew (1994)" to the extent applicable to an aircrew officer.
2.	Specifically : -
	(i)	(a)	is the rostering so covered limited to the rostering covered by the Rostering Practices and Procedures for Cockpit Crew (1994) as first incorporated in the Operations Manual Vol. 1 as at the time of COS-94.
		(b)	if so, does the rostering practices so covered include the Flight Time Limitation Scheme as incorporated in the Operations Manual Vol. 1 as at the time of COS-94.
	(ii)	if the answer to 2(i)(a), is "NO", then is the rostering so covered the provisions set out in any part of Appendix D (being Exhibit "KRB 7" at B3(2) page 548) as amended thereafter up to the signing of COS-99.
	(iii)	If the answer to 2(ii) is "YES", then do the provisions so covered include : -
		(a)	the FTLS sections, namely Sections 2-21 of Appendix D.
			or
		(b)	the current FTLS (being "KRB-9" at B3(2) page 649).
			or
		(c)	both (a) and (b) above.
	[Note : The Plaintiff reserves its pleading point in respect of this paragraph.]
3.	On the true construction of S. 22 of COS-99, is the Defendant able to make unilateral amendments to the rostering of its aircrew without : -
	(i)	further agreement between HKOA and the Defendant; or
	(ii)	the final resolution of HCMP No. 1679 of 1999?
	Provided the same introduces rostering practices which are substantially in accordance with those rostering practices that this Court, as a matter of construction, finds are covered by "Rostering Practices and Procedures for Cockpit Crew (1994)".
4.	If the answer to 3 above is "YES", then are any of the following changes introduced in RP-2001, a substantial amendment to the Defendants rostering practices.
	(i)	4 to 3 men crew; the deletion of the requirement to employ a minimum crew of 4 pilots on an FDP using in-flight rest.
	(ii)	Duty swaps : the adoption of the phrase "will normally be awarded" in paragraph 8.2 of RP-01.
	(iii)	5-4-3 : the amendment of the 5-4-3 Rule in paragraph 6.2 of RP-01 so as to confine the application of the rule to ULR FDP.
	(iv)	Increased ceiling of 700 hours per year : RP-2001 enables the Defendant to require up to 900 hours duty per year if the aircrew does not choose Option 2.
	(v)	Reserve duties : removal of the 45 minute from call to leaving home period.
	(vi)	Reserve duties : removal of the "fair share reserve".
5.	If the answer to 4 above is yes, is the Plaintiff entitled to the relief sought. "

4. I am concerned with the proper construction of Section 22 of COS-99 ("Section 22") in determining Issues 1, 2 and 3.

Section 22

5. COS-99 is a contractual document setting out the conditions of service of CPA's aircrew officers including the plaintiff. Section 22 provided as follows :

“ 22. Rostering

22.1. The Company and the Officer hereby agree and acknowledge that no agreement has been reached with regard to Rostering Practices and that the Company and the Hong Kong Aircrew Officers' Association will continue negotiations with a view to reaching such agreement. The Company and the Officer further agree that rostering will continue to be in accordance with the Rostering Practices & Procedures for Cockpit Crew (1994) (to the extent applicable to an Aircrew Officer) pending further agreement on Rostering Practices or final resolution of HCMP No. 1679 of 1999, whichever is the earlier. The Company and the Officer further acknowledge that the agreement of the Officer to the matters referred to in this clause is without prejudice to the assertions about Rostering Practices made by all the parties in HCMP No. 1679 of 1999 and similar assertions made by the Hong Kong Aircrew Officers' Association. "

General Rules of Construction

6. The relevant rules of construction are not disputed. The construction of a written agreement denotes the process by which a court arrives at the meaning to be given to the language used by the parties in the express terms of a written agreement.

7. The intention of the parties must be ascertained from the language that they have used considered in the light of the surrounding circumstances and the object of the contract (para. 1.04 Lewison on The Interpretation of Contracts 2nd Edn.) The Court will generally adopt an objective approach, that is to say it will consider what would have been the intention of reasonable persons in the position of the actual parties to the contract. (para. 1.05 Lewison)

8. As is stated in para. 12-043 of Chitty on Contracts 28 Edn. Vol. 1 :

“ The task of ascertaining the intention of the parties must be approached objectively : the question is not what one or other of the parties meant or understood by the words used, but "the meaning which the document would convey to a reasonable person having all the background knowledge which would reasonably have been available to the parties in the situation in which they were at the time of the contract" (Investors Compensation Scheme Ltd. v. West Bromwich Building Society [1998] 1 WLR 896 at 912)."

9. The intention of the parties is the meaning of the words they have used. There is no intention independent of that meaning. (para. 1-03 Lewison) The court will not approach the task of construction with too nice a concentration upon individual words (para. 12-044 Chitty).

10. The following passage from Ford v. Beech (1848) 11 QB 852 at 866 is also set out at para. 12-044 Chitty :

“ The common and universal principle ought to be applied : namely, that [an agreement] ought to receive that construction which its language will admit, and which will best effectuate the intention of the parties, to be collected from the whole of the agreement, and that greater regard is to be had to the clear intention of the parties than to any particular words which they may have used in the expression of their intent. "

11. In construing any written agreement the Court is entitled to look at evidence of the objective factual background known to the parties at or before the date of the contract, including the "genesis" and objectively the "aim" of the transaction. However, this does not entitle the Court to look at evidence of the parties' subjective intentions (para. 2.10 Lewison). Thus, a party's subjective intention and what he understood the words in the contract to mean is not admissible for the purpose of construing a written agreement and is therefore irrelevant.

12. Where wrong words are used, the approach must be to ascertain what the parties would objectively have been understood to mean having regard to the background and the matrix of facts known to the parties at the time the agreement was made. It is useful to bear in mind what Lord Hoffman said in Mannai Investment Co. Lt. v. Eagle Star Life Assurance Co. Ltd. [1997] AC 749 at page 775 :

“ ................. But the law is not concerned with subjective intentions. All that matters is the objective meaning of the words which he has used.

It is of course true that the law is not concerned with the speaker's subjective intentions. But the notion that the law's concern is therefore with the "meaning of his words" conceals an important ambiguity. The ambiguity lies in a failure to distinguish between the meaning of words and the question of what would be understood as the meaning of a person who uses words. The meaning of words, as they would appear in a dictionary. and the effect of their syntactical arrangement, as it would appear in a grammar, is part of the material which we use to understand a speaker's utterance. But it is only a part; another part is our knowledge of the background against which the utterance was made. It is that background which enables us, not only to choose the intended meaning when a word has more than one dictionary meaning but also, in the ways I have explained, to understand a speaker's meaning, often without ambiguity, when he has used the wrong words.

When, therefore, lawyers say that they are concerned, not with subjective meaning but with the meaning of the language which the speaker has used, what they mean is that they are concerned with what he would objectively have been understood to mean. This involves not only examining not only the words and the grammar but the background as well. "

13. The rule that words must be construed in their ordinary sense is liable to be departed from where that meaning would involve an absurdity or would create some inconsistency with the rest of the instrument. (para. 12-053 Chitty). The matter was succinctly put by Lord Hoffman in Investors Compensation Scheme Ltd. at page 913 as follows :

“ The 'rule' that words should be given their 'natural and ordinary meaning' reflects the common sense proposition that we do not easily accept that people have made linguistic mistakes, particularly in formal documents. On the other hand, if one would nevertheless conclude from the background that something must have gone wrong with the language, the law does not require judges to attribute to the parties an intention which they plainly could not have had. "

14. I was also referred to what Lord Diplock said in Antaios Compania Naviera S.A. v. Salen Rederierna A.B. [1985] AC 191 at page 201 :

“ ........... I take this opportunity of re-stating that if detailed semantic and syntactical analysis of words in a commercial contract is going to lead to a conclusion that flouts business commonsense, it must be made to yield to business commonsense. "

The witnesses

15. I heard evidence from the plaintiff and from Mr. Nicholas Rhodes, the present Director of Fight Operations of CPA. They both gave their evidence honestly. Much of the evidence was unchallenged. However, I have preferred the evidence of one to the other on certain matters which were challenged and as mentioned hereunder.

Background

16. The undisputed evidence shows that the Union and CPA were in negotiations over a period of time over a number of matters including Rostering Practices. The plaintiff was involved in the negotiations for COS-99 as he had been the Vice President of the Union and had just stepped down at the time of the negotiations. The plaintiff said, and I accept, that the negotiations for COS-99 took 5 or 6 months to complete. He was one of the persons who negotiated for the pilots with CPA on the area of rostering. Mr. Rhodes was then General Manager Aircrew in the Flight Operations of CPA and was also involved in the negotiations. Captain Barley was then Director of Flight Operations. Mr. Rhodes became Director of Flight Operations with effect from January 2003.

17. CPA had set a deadline for negotiations to be completed by 10 June 1999. It appeared that progress had been made by the Union and CPA over the negotiations and that matters other than Rostering Practices were agreed. The area where agreement could not be reached was in relation to Rostering Practices. It was agreed that talks would recommence by 31 December 1999.

18. The evidence shows that solicitors for the Union drafted Section 22 which was then considered by CPA's solicitors before it was agreed in the form as it appears in Section 22 of COS-99.

19. I have heard evidence from the plaintiff and Mr. Rhodes as to their intentions in arriving at the agreement set out in Section 22. None of that, however, is admissible evidence for the purpose of construing Section 22. I also heard evidence from them as to their respective understanding of what Section 22 means and what they respectively believed that it achieved. None of that is likewise admissible evidence for the purpose of construing Section 22. All of this is irrelevant for the purpose of construing Section 22.

20. It is necessary to consider the factual background at the time of the entering of COS-99 in June 1999. COS-99 was to take effect on 1 July 1999 as being the date of the new contracts of employment whereby CPA employed its aircrew including the plaintiff.

21. It is common ground that the terms and conditions were the subject of extensive negotiations between the Union and CPA leading up to COS-99. During the negotiations HCMP No. 1679 of 1999 ("the MP action") was commenced on 19 March 1999 by a total of 704 pilots, including the plaintiff, against CPA by way of Originating Summons claiming a number of declarations including a declaration that the whole of the Rostering Practices Section of the Operations Manual Vol. 1 "are and were incapable of unilateral amendment or variation by [CPA]". CPA were at all times maintaining that Rostering Practices as set out in the Operations Manual Vol. 1 were capable of unilateral amendment without the consent of the Union or the aircrew. On the other hand, the aircrew officers and the Union were at all times maintaining that they were incapable of unilateral amendment by CPA This was so despite the fact that between 1994 and 1999 there had been some amendments made by CPA to the Operations Manual Vol. 1 which amendments had been complied with by the aircrew officers. So on 19 March 1999 the 704 pilots including the plaintiff commenced the MP action. The declaration sought in respect of Rostering Practices was only part of the relief sought. The MP action was still pending at the time when COS-99 was entered into. It has not yet been determined.

CPA's Documents

22. The evidence shows that the only document containing the title "Rostering Practices and Procedures for Cockpit Crew (1994)" is the document commencing at page 512 of Bundle 3(2) of the trial bundles. This document was never included in or formed a part of the Operations Manual. There was one amendment to that document and the amended version was inserted into the Operations Manual Vol. 1 in September 1994 under a different title namely, "Rostering Practices for Cockpit Crew which do not form part of the Approved Flight Time Limitations Scheme". That was the first time that these Rostering Practices with the said different title appeared in the Operations Manual in September 1994.

23. In November 1996 the Rostering Practices were amended to incorporate the provisions from the then Approved Flight Time Limitation Scheme ("AFTLS"). This was Revision 158 dated 13 November 1996. I would observe that by the MP action the plaintiff also sought a declaration that this revision was ineffective.

24. When the Rostering Practices and the then AFTLS provisions were put into the Operations Manual Vol. 1 in 1996 they were put together sequentially and not put into or separated into different appendices.

25. It is not entirely clear when but by 21 December 1996 the then AFTLS provisions were put into a separate appendix namely, Appendix B in the Operations Manual Vol. 1 under the title :

"	CATHAY PACIFIC AIRWAYS LTD
	FLIGHT OPERATIONS DEPARTMENT
	OPERATIONS MANUAL VOLUME 1
	APPENDIX B
	APPROVED FLIGHT TIME LIMITAIONS SCHEME
	(LEGAL REQUIREMENTS) "

26. In or about March 1997 the standalone booklet, Exhibit P1, was published with the title "Rostering Practices for Cathay Pacific Airways/Veta Crew". Veta Crew is a reference to the aircrew employed by Veta Ltd, a wholly owned subsidiary of CPA.

27. In or about May 1997 Appendix D was created and included as part of the Operations Manual Vol. 1. This is the document commencing at page 549 of Bundle 3(2) ("Appendix D"). The title to that document is :

"	CATHAY PACIFIC AIRWAYS LTD
	FLIGHT OPERATIONS DEPARTMENT
	OPERATIONS MANUAL VOLUME 1
	APPENDIX D
	ROSTERING PRACTICES
	FOR
	CATHAY PACIFIC AIRWAYS/VETA CREW "

28. At the same page where the title appears in Appendix D the following words also appear :

“ This volume is to be used by crew, staff, servants or agents of Cathay Pacific Airways Limited for all matter related to rostering. It is issued by the Flight Operations Department and is authorized by the Director of Flight Operations. (emphasis added)

The 'Approved Flight Time Limitations Scheme' (Legal Requirements) are contained in the Appendix B of the Operations Manual Volume 1, Administration and Organization. "

29. There are notes at page 1 of Appendix D. Note 3 provided as follows :

“ These Rostering Practices apply to all Cathay Pacific Airways and Veta Flight Crew Operating Cathay Pacific Airways Aircraft."

30. Mr. Rhodes said in evidence that the title and note 3 at page 1 of Appendix D were misleading and led to much confusion. However, at the time when Appendix D was created and included as part of the Operations Manual Vol. 1 in or about May 1997 Mr. Rhodes was not working in the Flight Operations of CPA and is unable to give any relevant evidence about the title and note 3 that appears in Appendix D.

Issues 1 and 2(i)(a) and (b)

31. The issue to be considered by Issue 1 is what is the rostering that is covered by "Rostering Practices and Procedures for Cockpit Crew (1994)" to the extent applicable to an aircrew officer. Specifically, is the rostering so covered limited to the extent covered by the Rostering and Practices and Procedures for Cockpit Crew (1994) as first incorporated in the Operations Manual Vol. 1 as at the time of COS-99 (Issue 2(i)(a))? If so, does the rostering practices so covered include the Flight Time Limitation Scheme as incorporated in the Operations Manual Vol. 1 as at the time of COS-94? (Issue 2(i)(b)).

32. What I have to ascertain is the meaning of the words used by the parties in Section 22 of COS-99. Section 22 is set out at para. 5 above. The first sentence of Section 22 is clear enough. It merely states that no agreement had been reached with regard to Rostering Practices and that CPA and the Union would continue negotiations with a view to reaching such agreement. This was merely an agreement to continue negotiations and no difficulty arises therefrom.

33. The second sentence of Section 22 is an agreement that "rostering will continue to be in accordance with the Rostering Practices & Procedures for Cockpit Crew (1994)......". This was to continue until the occurrence of one of the two specified events namely, pending further agreement of Rostering Practices or final resolution of the MP action.

34. There is a dispute between the parties as to whether Rostering Practices included any Approved Flight Time Limitation Scheme ("AFTLS") which were imposed by the authorities and which had to be observed by pilots. Mr. Rhodes gave evidence that Sections 2-21 of Appendix D contained the then AFTLS provisions which were also contained in Appendix B. It is CPA's case that Sections 2-21 of Appendix D were AFTLS provisions and not part of Rostering Practices and that only Sections 22-29 of Appendix D were Rostering Practices. CPA's case is that a distinction should be drawn between AFTLS provisions and Rostering Practices. AFTLS provisions are legal requirements and are safety issues whilst Rostering Practices are lifestyle and money issues.

35. The plaintiff accepted that AFTLS provisions were a legal requirement and that they had to be complied with. His case, however, was that any provision in Appendix D, including Sections 2-21, which impacted on how his roster was constructed was a Rostering Practice and not subject to unilateral amendment. That is one of the issues in the MP action which has yet to be determined.

36. The new AFTLS provisions were implemented on 1 March 1999 following CAD 371 issued by the Civil Aviation Department. This dealt with provisions for the avoidance of fatigue in aircrews. These were introduced into the Operations Manual Vol. 1 in Appendix B. With effect from the same date the old AFTLS provisions in Appendix B were replaced by the new AFTLS provisions in Appendix B. It is CPA's case that Sections 2-21 of Appendix D then became obsolete. Mr. Rhodes said, and I accept, that there were provisions in the new AFTLS provisions that were inconsistent with the old AFTLS provisions. Examples given were the definition of "acclimatized" and the number of "days off" from home base. However, as a matter of fact Sections 2-21 were not removed from Appendix D. They remained there.

37. In 1999 there were ongoing negotiations between the Union and CPA and much disquiet among the aircrew at CPA's stance that it could unilaterally amend anything in the Operations Manual Vol. 1 and this led to the institution of the MP action.

38. Mr. Rhodes said that CPA decided to leave the old AFTLS provisions in Sections 2-21 of Appendix D and not remove them to minimize the prospect of industrial unrest. Also with a view to minimize industrial confrontation CPA decided and continued to apply a limited number of provisions from the old AFTLS provisions in addition to the new AFTLS provisions. There were 3 such provisions in the old AFTLS provisions found in Appendix D ("the said 3 specific provisions") which they continued to apply in addition to the new AFTLS provisions namely :

(1) Section 2.6 A. of Appendix D contained a provision to carry a third pilot on flights that exceeded 81/2 hours. The new AFTLS provisions contained a similar provision but if the flight was during the daytime then the third pilot was not required until the flight exceeded 9 hours. CPA applied the 81/2 hour limit in these cases and thus applied the provision that was more favourable to the aircrew.

(2) Section 2.6 B. of Appendix D contained a provision whereby the ability to extend a Flight Duty Period ("FDP") by inflight relief was only applicable where bunks were available for the resting crew. The new AFTLS provisions allowed inflight rest to be taken in a comfortable reclining seat on non ultra long range flights. CPA, however, provided bunks on all flights utilizing inflight rest and therefore applied the provision that was more favourable to the aircrew.

(3) Section 2.6 C. of Appendix D contained a provision requiring a minimum of 4 pilots when a FDP is extended by inflight relief. The new AFTLS provisions contained no such provision and therefore allowed a 3 men crew in some circumstances. CPA provided a 4 men crew on all flights utilizing inflight rest and therefore applied the provision that was more favourable to the aircrew.

39. Mr. Rhodes explained that apart from the said 3 specific provisions of the old AFTLS provisions contained in Appendix D which were applied together with the new AFTLS provisions, none of the other provisions of the old AFTLS provisions were applied by CPA in constructing rosters of aircrew. Thus, apart from the said 3 specific provisions, the conflicting provisions were ignored after the implementation of the new AFTLS provisions in March 1999 and the rosters were constructed and controlled in compliance with the requirement of the new AFTLS provisions. Save for 3 specific and simple provisions which were applied together with the new AFTLS provisions, the rest of the old AFTLS provisions were ignored.

40. There was, however, a short period of 3 months when, with the assistance of the Labour Department, an Interim Rostering Practices Agreement was reached with the Union and which applied to all the aircrew. This was in force for that short period of time and was to cover the period at the end of 2000 over Christmas, New Year and Chinese New Year holidays. However, on the evidence of Mr. Rhodes this proved much too difficult and confusing to properly work in practice and after 3 months the Interim Rostering Practices Agreement was abandoned. The Rostering Practices as had been applied prior thereto continued to be applied up to the time of RP-01.

41. I accept the evidence of Mr. Rhodes on these matters. It is clear, and I so find, that CPA continued to apply the said 3 specific provisions of the old AFTLS provisions contained in Appendix D in the construction of the roster during the negotiations leading up to COS-99 and that was the position at the time of COS-99. Save for the short period when the Interim Rostering Practices Agreement was in place, that was also the position for some 2 years after COS-99 was entered into until the amendments made by RP-01 with effect from 1 August 2001.

42. Mr. Rhodes said that on 19 July 2001 CPA issued a manual amendment to be effective from 1 August 2001 which removed all reference to the old AFTLS provisions and reinserted revised Rostering Practices as Part 4 Section 3 of Vol. 1 of the Operations Manual. Thus it was his evidence that the whole of Appendix D including the said 3 specific provisions became obsolete. The effect of the plaintiff's evidence was that during the 2 years from COS-99 up to the time of RP-01 rosters were being constructed with all the provisions of Appendix D and the new AFTLS provisions but I am unable to accept this. I prefer and accept the evidence of Mr. Rhodes that after the new AFTLS provisions were implemented on 1 March 1999 CPA continued to apply only the said 3 specific provisions of the old AFTLS provisions contained in Appendix D and the rest of the conflicting provisions were ignored when constructing the roster. That remained the position at the time of COS-99 and for some 2 years thereafter until the time of RP-01, save for the short period of 3 months when the Interim Rostering Practices Agreement was in place.

43. It seems to me that that the words "continue to be" in the second sentence of Section 22 are important. These words can only make proper sense if there is an existing state of affairs which has to be continued. In my view, that is what the parties intended. The words "continue to be" indicate clearly that the parties' intention was that an existing state of affairs should continue until the occurrence of one of the two events specified in the second sentence. What I have to determine is what was the existing state of affairs that was to continue until the occurrence of one of the two events specified in Section 22, namely, further agreement or the resolution of the MP action. There was no time limit specified for either event. In my view this was a standstill agreement that in the meantime rostering would continue to be as that being applied at the time. The existing state of affairs was the "rostering" that was actually being carried out at the time of COS-99. This was in accordance with the said 3 specific provisions in Sections 2-21 of Appendix D and the new AFTLS provisions. This seems to me to be the proper construction of the second sentence of Section 22. The third sentence in section 22 was merely to preserve both sides respective postions in the litigation that had already been commenced namely, the MP action. This was "without prejudice to the assertions about Rostering Practices made by all parties" in the MP action and similar assertions made by the Union. The Union was not a party to the MP action as it was an action by 704 individual plaintiffs.

44. The very word "rostering" used in the second sentence of Section 22 is the same word used at the same page as in the title to Appendix D where it is clearly stated that the volume is to be used by crew and others for all matters related to "rostering".

45. The word "roster" is also defined in Section 1.30 of Appendix D as :

“ A method, conventional or electronic, by which [CPA] informs crew members of their duties within a future period. Crew members will be informed of their duties within a roster at least fifteen days before the roster period starts. "

And at Section 1.31 a rostered/planned duty is defined as :

“ A duty period, or series of duty periods, with stipulated start and finish times, notified by [CPA] to the crew members in advance by roster. "

A duty period is defined in Section 1.10.

46. Mr. Rhodes agreed and I accept that the creation of a roster involves the allocation of aircrew to an aircraft for the performance of their duties.

47. Mr. Bleach submitted that by referring to the "Rostering Practices and Procedures for Cockpit Crew (1994)" in Section 22 the parties were referring to a specific document with that title and subsequent amendments made thereto. It seems to me that issue 2(i) is not really an issue between the parties because neither side suggests that the words "Rostering Practices and Procedures for Cockpit Crew (1994)" is a reference to that document as it existed in 1994 without any of the subsequent amendments. Mr. Scott submitted, in my view rightly, that it is not even open to the CPA to suggest that the reference was to the document as it existed in 1994 because on its pleading namely, para. 4 of the defence it is pleaded that on its true construction the term "Rostering Practices" in Section 22 is a reference to the document entitled 'Rostering Practice and Procedure for Cockpit Crew (1994)' as subsequently amended from time to time.

48. Be that as it may, the answer to Issue 2(i)(a) is clear. The answer to the question is "No". In my judgment the rostering covered by "Rostering Practices and Procedures for Cockpit Crew (1994)" is not limited to the rostering covered by the "Rostering Practices and Procedures for Cockpit Crew (1994)" as first incorporated in the Operations Manual Vol. 1 at the time of COS-94. As I have said, the Rostering Practices were first incorporated in the Operations Manual Vol. 1 under a different title. Issue 2(i)(b) does not arise.

Issue 2(ii)

49. As the answer to 2(i)(a) is "No", then by Issue 2(ii) the next issue is whether the provisions of the rostering so covered is set out in any part of Appendix D as amended thereafter up to the signing of COS-99.

50. Mr. Scott submitted that the reference to "Rostering Practices & Procedures for Cockpit Crew (1994)" in Section 22 was a misdescription of the document that the parties intended to refer to. He submitted that the parties intended to refer to those parts of Appendix D as were being applied at the time of COS-99. This included provisions in Sections 2-21.

51. In his written closing submissions Mr. Scott submitted that rosters were being constructed at the time of COS-99 in accordance with all of Appendix D provided it did not place the crew or CPA outside the new AFTLS provisions and that rosters continued to be so constructed for 2 years thereafter. This was also the effect of the plaintiff's evidence. However, I prefer the evidence of Mr. Rhodes on this. In his oral closing submissions, however, Mr. Scott accepted that only the said 3 specific provisions of Appendix D mentioned by Mr. Rhodes were being applied at the time of COS-99 in addition to the new AFTLS provisions and this continued to be the position until RP-01.

52. Mr. Bleach submitted that rostering was always separate and distinct from the AFTLS provisions whether old or new. He further submitted that Rostering Practices have always been included in the Operations Manual, Vol. 1 which CPA have always maintained that it has been able to amend from time to time. This, however, is disputed and the dispute led to the institution of the MP action challenging CPA's right to unilaterally amend Rostering Practices. This has yet to be determined. Mr. Bleach submitted that Rostering Practices are matters dealing with lifestyle and money issues, like days off, overtime earned, and other matters which are lifestyle issues. He submitted that Sections 2-21 of Appendix D are AFTLS provisions and are not Rostering Practices and it was his submission that the parties did not intend to refer to the AFTLS provisions found in Sections 2-21 of Appendix D when referring to "Rostering Practices and Procedures for Cockpit Crew (1994)" in Section 22.

53. Although Mr. Rhodes maintained that Sections 2-21 containing the AFTLS provisions were separate and distinct from Sections 22-29 of Appendix D which he said were lifestyle issues, I accept Mr. Scott's submission that nowhere in any of the documents is there such a distinction made. No such distinction is made in Appendix D. What is important is that the same word "rostering" is used in Section 22 of COS-99 and in Appendix D, and the word 'roster' is also defined there.

54. By CPA's own document it is clearly stated at the same page as where the title of Appendix D appears that the volume was to be used by crew and others for all matters related to rostering. It seems to me to be clear, and I so find, that for all matters related to rostering the aircrew and others had to have regard to the whole of Appendix D and not just to Sections 22-29 of Appendix D. I am unable to accept Mr. Rhodes' evidence that Sections 2-21 of Appendix D were not part of Rostering Practices and that only Sections 22-29 of Appendix D were Rostering Practices. There is no sub-division in Appendix D between Sections 2 to 21 and the remaining Sections 22 to 29. They are all part of the same document with the heading "Rostering Practices for CPA/VETA Crew" on each and every page. There is also the note 3 at page 1 of Appendix D where it is stated clearly that "These Rostering Practices apply to all Cathay Pacific Airways and Veta Flight Crew operating Cathay Pacific Airways Aircraft."

55. Mr. Bleach also relied on Sections 1.2 and 20 of COS-99.

56. Section 1 of COS-99 provided that :

“ 1.1 These Conditions of Service shall apply to Aircrew Officers ("Officers") employed by Cathay Pacific Airways Limited ("the Company").

1.2 These Conditions of Service shall be read in conjunction with the Operations Manual, Volume 1, as the same may be amended from time to time, subject to the provisions of Section 22. "

57. Section 20 of COS-99 provided that :

“ 20. FLIGHT TIME LIMITATIONS

20.1 The maximum Flight Time Limitations will be in accordance with the Approved Flight Time Limitations Scheme specified in the Operations Manual, Volume 1, Appendix B. "

58. Mr. Bleach submitted that this demonstrated that AFTLS provisions and Rostering Practices were treated as totally separate and distinct matters and that Section 20 was in no way subject to the provisions of Section 22. Therefore, as the AFTLS provisions were included as an appendix to the Operations Manual, Vol. 1 they could be amended from time to time. However, in my view Section 1.2 makes it plain that the right of CPA to amend the Operations Manual, Vol. 1 was subject to the provisions of Section 22. I accept that AFTLS provisions are legal requirements which have to be complied with by the aircrew and that they can be amended from time to time without the aircrew's consent. The plaintiff accepts that he has to abide by the AFTLS provisions. Section 20, however, only states that the Maximum Flight Time Limitations will be in accordance with the new AFTLS provisions. It is true that these can be amended but it does not assist CPA in the proper construction of Section 22.

59. The plaintiff accepted that the new AFTLS provisions were legal requirements and that they had to be complied with by the aircrew. What he was saying was that of the two provisions, namely the old AFTLS and the new AFTLS provisions, CPA had to apply the less restrictive of the two provisions. I agree with Mr. Bleach that on the evidence of Mr. Rhodes it would be impossible to run an airline like CPA with two inconsistent AFTLS provisions at the same time and where aircrew could "cherry pick" which of the two inconsistent provisions is more favourable and applicable to him. I also agree with Mr. Bleach that business common sense dictates that it could never have been intended that aircrew would be able to "cherry pick" which of two conflicting provisions between the old and the new AFTLS provisions should apply to him. But that is not what the parties intended when agreeing Section 22. In my view the proper construction of Section 22 is that the existing state of affairs should continue until one of the two events takes place. It was probably never envisaged by the parties that by 2003 one of the two events would not have occurred.

60. I accept Mr. Scott's submission that the reference to "Rostering Practices and Procedures for Cockpit Crew (1994)" was a misdescription of the document that the parties intended to refer to. In my judgment the wrong words have been used by the use of the words "Rostering Practices and Procedures for Cockpit Crew (1994)" in Section 22.

61. In my judgment on a proper construction of Section 22 what the parties intended was that rostering would be in accordance with such of the provisions of Appendix D as were being applied at the time of COS-99.

62. Mr. Rhodes' belief that Section 22 permitted CPA to continue to amend the Rostering Practices from time to time whilst permitting the plaintiff to argue the contrary at the trial in the MP action is not admissible and hence, not relevant in construing Section 22.

63. Mr. Bleach submitted that the Union's stance was that Appendix D was not the document referred to in Section 22. He referred to the letter from the Union dated 11 September 2000 which suggested that the document referred to in Section 22 must at least contain the title "Rostering Practices and Procedures for Cockpit Crew (1994)" which was not the title of Appendix D. The Union seemed to suggest that rostering should be in accordance with the document bearing the said title which was not Appendix D. This does not, however, assist CPA. First, this was the Union's view, not the plaintiff's. The plaintiff was not involved in the negotiations in 2000 and 2001 and the Union's stance cannot bind him in this action which is a personal action by him as sole plaintiff. Secondly, as is accepted by Mr. Bleach, the Court when construing a written agreement may not look at the subsequent conduct of the parties to interpret the written agreement. Thus, the words or conduct of the parties subsequent to the agreement are inadmissible and irrelevant in construing the written agreement. Here, it is not even the plaintiff's but the Union's subsequent words or conduct.

64. I accept that the construction of a monthly roster is a very complex process. The evidence of Mr. Rhodes on this is important. CPA today operates 79 aircraft to 48 destinations and employs over 1,740 flight crew of these over 570 flight crew are based outside Hong Kong in 19 different bases around the world. Mr. Rhodes explained the matters that have to be taken into account in constructing the monthly roster. He also explained that the roster, for over 1,700 flight crew, is broken down into seven different fleet categories, seven different crew categories and 20 different home bases. An average monthly roster would involve the assignment of approximately 6,000 flights, 2,500 training duties, 4,000 reserve duties, 5,000 days of leave, 20,000 days off and 500 other duties whilst also taking into account 1,500 requests by individual aircrew for specific flights and days off.

65. I accept the evidence of Mr. Rhodes that the rostering task is very complex. Notwithstanding the complexity of the matter, it is a fact that at the time of COS-99 and for some 2 years thereafter until the coming into effect of RP-01 (save for the 3 months' period when the Interim Rostering Practices Agreement was in place) CPA were successfully rostering aircrew officers using the new AFTLS provisions as well as the said 3 specific provisions of Appendix D as Mr. Rhodes explained. I appreciate that this was done whilst tense negotiations were going on and with a view to avoiding confrontation. But the fact is this was done and was done successfully whatever the reason may have been. That was how the aircrew officers were rostered at the time of COS-99 and in my judgment it was the intention of the parties that it was that state of affairs that should continue until the occurrence of one of the two specified events in Section 22. The agreement arrived at in Section 22 was to be without prejudice to the respective parties assertions in the MP action and to similar assertions by the Union, who were not parties to the MP action.

66. In my judgment the answer to Issue 2 (ii) is "Yes". The rostering so covered included the said 3 specific provisions of the old AFTLS provisions found within Sections 2-21 of Appendix D namely, in Section 2.6.A., Section 2.6.B. and Section 2.6.C. Issues 2(ii) and (iii) are resolved in favour of the plaintiff.

Issue 3

67. On the true construction of Section 22, is CPA able to make unilateral amendments to the rostering of its aircrew without further agreement with the Union or the final resolution of the MP action provided the same introduces rostering practices that are substantially in accordance with the rostering so covered?

68. Mr. Bleach submitted that the intention of the parties was that CPA should be permitted to unilaterally amend the Rostering Practices in the interim pending one of the two events specified in Section 22 provided, however, that the amendments were not substantial.

69. He relied on Stroud's Legal Dictionary 6th Edn. at pages 1215-1216 to show that in certain circumstances the words "in accordance with" means "in substantial accordance with". However at page 1215 of Stroud's the example given concerned a bill of sale which must be "in accordance with the form" prescribed in the statute. It was said that the phrase meant "substantially in accordance with the form" (per Day J. in Consolidated Credit Corporation v. Gosney 16 QBD 24).

70. He also relied on R v. The Justices of the County of London (1890) 24 QBD 341 which is also mentioned in Strouds as follows :

“ Premises provisionally licensed under Licensing Act 1874 had to be constructed "in accordance with" the plans submitted. This means "in substantial accordance" as was expressed by Mathew J. at page 345. "

That was also a case dealing with a statute, the Licensing Act 1874.

71. The authorities cited do not provide any assistance to CPA in my view. The Court is not concerned with the construction of a statute but with an agreement between the parties. It is an employment contract. The authorities relied on are clearly distinguishable.

72. An employer cannot unilaterally change the terms of employment without there existing clear words in the employment contract permitting the employer to do so. (Security and Facilities Division v. Hayes and others [2001] IRLR 81) It was held in that case that where parties to a contract of employment intend a provision allowing unilateral variation of the rate of allowances, the contractual terms must provide unambiguously for that. Peter Gibson L.J. said at page 84 :

“ Had the parties intended a provision allowing the unilateral variation of the rate of allowances, in my judgment the contractual terms would have had to provide unambiguously for that. "

73. Although Security and Facilities Division v. Hayes was a case where the employer sought to imply a term allowing unilateral variation, in my view, what Peter Gibson L.J. said above is equally applicable in this case even though CPA does not seek to imply a term. CPA's case is that as a matter of construction Section 22 allows CPA to unilaterally amend Rostering Practices in the interim pending one of the two events specified. In my judgment had that been the intention of the parties the contractual terms would have had to provide for that unambiguously. That is certainly not the position here.

74. I am unable to accept Mr. Bleach's submission that the only rationale or purpose for the last sentence in Section 22 is to protect the aircrew's stance in the MP action if CPA were in fact entitled to make amendments and the aircrews' compliance with those amendments. That is not what the last sentence says. In my judgment the last sentence in Section 22 is clear enough. The agreement was without prejudice to the assertions made by the parties. It was not an agreement to permit CPA to make unilateral amendments in the meantime.

75. I accept Mr. Scott's submission that Section 22 contained negative covenants in effect not to change Rostering Practices unless and until there was an agreement to do so or until there was a final resolution of the MP action.

76. Issue 3 is decided against CPA as I am of the view that, on the true construction of Section 22 of COS-99, CPA is not able to make unilateral amendments to its aircrew without (i) further agreement between the Union and CPA; or (ii) the final resolution of the MP action.

77. As submitted by Mr. Scott, it matters not that the plaintiff has not yet been rostered in strict accordance with RP-01, the threat to do so in future remain (Jones v. Grant County Council [1992] 1 RLR 521). It is also stated in para. 831 Vol. 24, Halsbury's Laws of England 4th Edn., Re Issue that :

“ In the case of a negative covenant or stipulation this Court will usually enforce compliance by injunction without regard to the question of convenience or the amount of damage caused. "

Proof of damage is also not necessary (para. 904 Vol. 24 Halsbury's Laws of England).

78. The plaintiff also said, and I accept, that he found it distressing to be forced to accept the unilateral amendments made by RP-01. These were made without further agreement between the Union and CPA or the final resolution of the MP action. The plaintiff is in my judgment entitled to an injunction as well as a declaration.

79. On my findings, Issues 4 and 5 do not arise.

Whether amendments were substantial

80. However, in case this matter goes elsewhere and I am held to be wrong in my conclusions, I go on to consider Issue 4 and to consider the specific complaints as regards the changes introduced by RP-01 and whether or not such changes are substantial amendments to the Rostering Practices.

4 men crew to 3 men crew

81. Under section 2.6 C.a. of Appendix D there was a requirement to employ a minimum crew of 4 pilots when a Flying Duty Period ("FDP") was extended using inflight rest under the provisions of section 3. RP-01 deleted this requirement to employ a minimum crew of 4 pilots.

82. On current scheduling this only affects flights to Auckland and Karachi. It is unlikely that the plaintiff would be assigned to Auckland flights as Captains of those flights are Auckland based, which the plaintiff is not, and, he is not likely ever to be as he accepted.

83. The change does have an impact on the plaintiff as he is currently qualified to fly an Airbus A330 and it is reasonably anticipated that he will be qualified to fly an Airbus A340 by May 2003. The Karachi flight is a flight that could affect the plaintiff.

84. The plaintiff's evidence, which I accept, is that normally one Captain and one First Officer pilots the aircraft during takeoff. They fly for about 5 to 6 hours and then exchange duties with a First Officer and Second Officer who then fly for about 5 to 6 hours while the Captain and initial First Officer rest. The Captain and the initial First Officer then return having rested and land the plane. On a 14 hour flight each pilot would receive about 61/2 hours rest. With a 3 men crew, each pilot would only get about 4 hours and 20 minutes of rest. With a 3 men crew, either the Captain or the First Officer must be in the seat for 4 to 5 hours before landing the plane whereas with a 4 men crew, both the Captain and the First Officer would be rested before landing the plane.

85. The plaintiff is an experienced pilot. Mr. Rhodes is not a pilot. I prefer and accept the plaintiff's evidence that the highest workload in flying an airplane is the landing phase followed by the takeoff phase and then the cruise phase. I accept that the higher workload leads to more stress and more tiredness. Although a 4 men crew was no longer required by the new AFTLS, as Mr. Rhodes explained this was one of the said 3 specific provisions of the old AFTLS provisions that was applied at the time of COS-99 and which continued to be applied up to the time of RP-01 in addition to the new AFTLS provisions. RP-01 deleted this requirement to employ a 4 men crew.

86. It is not suggested by the plaintiff that the change from a 4 men crew to a 3 men crew in any way made his flying duties unsafe. It was stressed on behalf of CPA that this was a safety issue which had been approved in the new AFTLS provisions. The point made on behalf of the plaintiff is that the change from 4 men crew to 3 men crew causes more tiredness, as opposed to fatigue in the technical sense used in CAD 371, and that this leads to extra stress especially for the pilot doing the takeoff and landing duties. It was also submitted that the extra stress would also impact on the plaintiff's ability to enjoy his time off since additional working demands must affect an employee's ability to make the most of his time off. I accept the submissions made on behalf of the plaintiff. I am unable to accept that the change from 4 men crew to 3 men crew is an insubstantial change. In my view this was a substantial change.

Duty Swaps

87. Section 26 of Appendix D provided that requests for mutual exchange of duty "will be awarded" provided the conditions set out therein are satisfied. RP-01 changed this to "will normally be approved" provided the conditions set out in RP-01 are satisfied. The plaintiff's complaint is that previously he was assured of getting days off by arranging a mutual exchange and satisfying the conditions provided but that with the change the grant of the request is no longer assured but depends on the discretion of CPA. The word "normally" is not defined and it is subject to the discretion of CPA.

88. Mr. Rhodes gave evidence that CPA's position is that it was always the case that mutual duty exchanges will be permitted subject to CPA's overriding discretion. Thus in the summer of 1999 and over the Y2K period that facility was suspended.

89. I appreciate that there is a request system and a 'joker' system in place whereby aircrew can request days off. In the case of the 'joker' system however, the request must be made 3 months in advance of the roster and for a block of 5 consecutive days off. There is also a separate Christmas/New Year request system.

90. Mr. Rhodes said that the change in wording in RP-01 was editorial and insubstantial. I am unable to accept that. Whilst I accept that CPA will normally approve duty swaps provided the conditions are satisfied, there is no guarantee given to aircrew that this will be approved. On the evidence there were abnormal situations like e.g. the Y2K period when duty swaps were not approved. And it does not appear that there were any complaints by aircrew about this. However, the wording in Section 26 of Appendix D is clear. I am unable to accept that the change in wording is merely editorial and insubstantial. The plaintiff had an entitlement to a duty swap once the conditions were satisfied. By RP-01 this entitlement was removed and his ability to manage his time off duty at short notice for personal, family or other reasons using the duty swap system was made subject to the discretion of CPA. In my view this was an attenuation of the plaintiff's contractual rights and a substantial change.

5-4-3 Rule

91. This deals with the number of days off for aircrew upon returning to home base. The 5-4-3 rule is found in Section 16.3 as well as under Section 23.1 C.a. of appendix D. It permitted aircrew on return to home base to be allocated 5 days off between a long haul pattern and another long haul pattern, 4 days off between a long haul pattern and an intermediate pattern and 3 days off between a long haul pattern and a regional pattern. A long haul pattern, intermediate pattern and regional pattern were defined. A long haul pattern was a flight or sequence of flights to/from one of the following regions : North America, Europe South Africa. An Intermediate pattern was a flight or sequence of flights to/from one of the following regions : Australia, New Zealand, India, Middle East. A Regional pattern was a flight or sequence of flights to/from the Far East region.

92. At the individual crew members' request, however, the days off may be reduced to a minimum of 48 hours free from all duties at home base.

93. As explained by Mr. Rhodes, this rule was intended to allow crews 5, 4, or 3 days off as recovery time after long haul east/west patterns and the rule clearly specified the geographical regions that were to trigger the provisions namely, flights between a long haul pattern and another long haul pattern (5 days off), between a long haul pattern and an intermediate pattern (4 days off ) and between a long haul pattern and a regional pattern (3 days off). Flights between an intermediate and regional pattern and flights within a regional pattern did not trigger the 5-4-3 days off provision.

94. However, over time as a result of schedule changes and the use of slower aircraft, flights to Auckland and Karachi also triggered the 5-4-3 provisions solely because they happened to utilize inflight rest. But they are not long haul east/west flights.

95. The re-wording in RP-01 (Section 6.2) changes the 5-4-3 days off rule and applies it to a crew member on first return to home base after operating an ultra long range flying duty period ("ULR FDP"). 5 days off are allocated before undertaking a further ULR FDP, 4 days off before undertaking a FDP which either contains a scheduled sector time of more than 6 hours or which finishes at a place where the local time differs from the crew members' home base local time by more than 3 hours.

96. It is accepted that because of the change flights to Auckland will no longer be caught by these provisions as they were previously because of inflight rest provisions. But the plaintiff is unlikely to be asked to fly to Auckland as he accepted.

97. The plaintiff is qualified to fly an A330 and it is reasonably anticipated that he will soon be able to fly an A340. The recent scheduling of the Karachi flight also utilized the inflight rest provisions thereby triggering the 5-4-3 days off rule. This was because the Karachi flight was a turnaround flight from Bangkok to Karachi and with the same crew turning around from Karachi to Bangkok because of security concerns for the crew in Karachi. The change in RP-01 effectively removes the 5-4-3 rule applying to these flights. I appreciate that, as Mr. Rhodes said, CPA may in future revert to the old pattern where there would be a crew change in Karachi or may cancel the service altogether. But that has not been done and it does affect the plaintiff at the present time. It seems to me that the change is a substantial change as it has the effect of attenuating the plaintiff's contractual rights to days off. I am unable to accept that this is an insubstantial change.

Increased ceiling of 700 hours per year

98. This deals with Excess Flying Pay ("EFP") or overtime payments. Under Section 22 of Appendix D there was a productive hours threshold of 700 hours annually that a crew member could achieve before there was EFP. However, as explained by Mr. Rhodes, this did not limit a crew member to 700 flying hours annually as for every long haul sector 2 hours were added to the annual production threshold. So, for instance, for a crew member who operated 30 long-haul round trips per annum the annual threshold would be 820 productive hours. The threshold was based on the 12 months' period commencing in the month of the individual crew member's birthday. This was what was contained in Appendix D and is the same as the Option 2 offered to aircrew in the Option Form sent with the letter dated 19 July 2001 from the Captain Barley, Director of Flight Operations, to aircrew.

99. Option 1 was a new scheme based not on an annual threshold but based on credit hours with a monthly threshold beyond which overtime would be paid. It is accepted by CPA that Option 1 is substantially different to Option 2. However, the plaintiff had a choice to opt for Option 2 which as the plaintiff accepted was the same as that to be found in Section 22 of Appendix D. I was referred to the correspondence between CPA and the Union. It was pointed out on the plaintiff's behalf that the plaintiff had not been offered a real choice as it could have been said against him that if he had chosen Option 2 then he could be regarded as having accepted all the other changes in RP-01. It seems to me, however, that this is not a valid point. The position was made plain by the revised and reprinted Option Form sent to the aircrew which expressly stated at the top "Nothing in this form shall prejudice the assertions made by any party to the [MP action] and similar assertions made by the Union".

100. Furthermore, Mr. Rhodes' e-mail of 30 July 2001 made the position clear to all aircrew including the plaintiff that there was a choice between the two Options but that there was no requirement to submit a Company Option Form and that the amendment would not affect their rights under the MP action. It seems to me that despite the legal advice given to the plaintiff, the plaintiff was given a free choice of Option 1 or 2 and he could have chosen to stay on the same annual productive hours threshold as before. He could have opted to stay on the same scheme as before. The change introduced by RP-01 was not in the circumstances a substantial change.

Reserve duties

101. The complaint here is that there is a change to the time taken for the plaintiff to report for duty when he is on reserve and called for duty. By Section 29.6 of Appendix D he has to be available to leave his residence within 45 minutes of being called. By RP-01 this was changed to give the aircrew 2 1/4 hours from call to get to the airport and has thus removed the 45 minutes from call period for him to leave home. On the evidence this change makes no practical difference to the plaintiff. Although the plaintiff said that his usual mode of transport from home to the airport was by bus, it is clear on the evidence that both before and after RP-01 whenever aircrew felt that they would be delayed in arriving at the airport for duty they would take a taxi and CPA have always reimbursed them for the taxi fares. This complaint cannot, in my view, be said to be substantial.

Fair share reserve

102. Section 29.11 A a. of Appendix D stated that all line crew members would be rostered for reserve block on a fair share basis. This was removed from RP-01. The plaintiff's complaint is that by such removal the concept of fair share reserve has been removed. However, as Mr. Rhodes explained and as I accept, when nearly all aircrew lived in Hong Kong it was possible for all aircrew to be given a fair share of reserve duty. For a number of years, however, a substantial number of aircrew lived in a number of bases outside Hong Kong. What has been done for a number of years is that fair share reserve was applied to crew within the same category, the same aircraft type and the same home base. It is not disputed that was indeed the practice that was applied over many years including the time of COS-99. According to the evidence of Mr. Rhodes it is still the practice that is currently being applied. The plaintiff accepted that this was the practice but his complaint is that fair share reserve has now been removed by RP-01. I do not regard the change to be a substantial change. There has been no change at all to what in fact has been the fair share reserve that was being practised for a number of years.

103. Thus, of the specific complaints under Issue 4 I would hold that only the complaints regarding the changes affecting 4 men crew to 3 men crew, duty swap and the 5-4-3 rule were substantial amendments. The changes affecting the other complaints were insubstantial changes. As to Issue 5, the plaintiff would be entitled to an injunction and a declaration in relation to the substantial amendments.

Conclusion

104. I have determined Issues 1, 2(i), (ii), (iii) and 3 in favour of the plaintiff. Issues 4 and 5 do not arise. The plaintiff is in my judgment entitled to an injunction and a declaration. Both Counsel have suggested that in the event that I were minded to grant an injunction and a declaration in favour of the plaintiff they wished to address me on the precise form of the relief to be ordered. In the circumstances it seems to me that it would be expedient if I gave a direction, which I do, that Mr. Scott should prepare draft Minutes of the Order to be made and submit the same to Mr. Bleach with a view to reaching an agreement on the same. If they are unable to reach agreement on the draft Minutes of the Order, the matter is to be restored before me for an early hearing date for argument as to the orders to be made in favour of the plaintiff. I give liberty to apply for this purpose.

105. I also make an order nisi for costs of the action to be the plaintiff's costs to be taxed if not agreed.

106. Finally, I would like to express my gratitude to both Counsel for all of their able assistance.