Benevides v Attorney General and the Corporation of Hamilton

• Jurisdiction: Bermuda
• Judgment Date: 28 March 2014
• Date: 28 March 2014
• Docket Number: Civil Jurisdiction 2013 No 182
• Court: Supreme Court (Bermuda)

[2014] Bda LR 33

In The Supreme Court of Bermuda

Civil Jurisdiction 2013 No 182

In the matter of section 30 of the Trade Union Act 1965

and in the matter of the Bermuda Constitution Order 1968

Between:

Edward E Benevides

Earlston Eugene Francis

Zoe Elizabeth Mulholland

Lindell Ashretta Charmee Foster

Plaintiffs

and

The Attorney General

The Corporation of Hamilton

Defendants

Mr S Froomkin QC for the Plaintiffs

Mr G Howard for the 1^st Defendant

Ms J Snelling and Ms A Wilson for the 2^nd Defendant

The following cases were referred to in the judgment:

Collymore v Attorney GeneralELR [1970] AC 538

Bermuda Industrial Union v BAS-Serco LtdBDLR [2003] Bda LR 64

Ontario (Attorney General) v FraserUNK [2011] 2 SCR 3

Health Services and Support – Facilities Subsector Bargaining Assn v British ColumbiaUNK [2007] 2 SCR 391

Demir v Turkey (2009) EHRR 54

Attorney General v Mohamed Alli & OrsUNK (1987) 41 WIR 176

Attorney General of the Gambia v JobeELR [1984] AC 689

Attorney General v Antigua Times LtdELR [1976] AC 16

Worme v Commissioner of PoliceELR [2004] 2 AC 430

Attride-Stirling v Attorney GeneralBDLR [1995] Bda LR 6

Chassagnou & Ors v FranceHRC (2000) 29 EHRR 615

Chapman v United KingdomHRC (2001) 33 EHRR 399

de Freitas v Ministry of AgricultureELR [1999] 1 AC 69

Nyambirai v National Social Security AuthorityUNK [1996] 1 LRC 64

Waite and Kennedy v GermanyHRC (2000) 30 EHRR 261

Re Highland Valley Copper (1998) 45 CLRBR (2d) 1

Re Cowichan Home Support Society (1997) 34 CLRBR (2d) 121

Packard v NLRB 330 US 485

NLRB v Bell Aerospace Co 416 US 267

R v SonejiELR [2006] 1 AC 340

DPP v RobertsBDLR [2008] Bda LR 37

Strachan v The Gleaner Co LtdWLR [2005] 1 WLR 3204

Collective bargaining — Whether it includes management workers — Freedom of association

JUDGMENT of Hellman J

Issues

1. This application, which is brought pursuant to section 15(1) of the Bermuda Constitution Order 1968 (“the Constitution”), raised important issues in the field of labour relations.

i. A person's right to freedom of assembly and association, including the right to form and belong to trade unions, is protected by sections 1 and 10 of the Constitution. But does that protection cover the right to engage, through a trade union, in collective bargaining with his or her employer?

ii. The Trade Union Act 1965 as amended (“the 1965 Act”) provides a statutory regime for the compulsory recognition by employers of a bargaining unit, and of a certified trade union as its exclusive bargaining agent, for purposes of collective bargaining. If there is a constitutionally protected right to collective bargaining, is that right infringed by section 30A of the 1965 Act, which, subject to a grandfathering clause, defines “bargaining unit” so as to exclude management persons?

Facts

2. The First, Second and Fourth Plaintiffs form part of the management team of the Second Defendant. The Plaintiffs contend that the Third Plaintiff also forms part of the management team whereas the Second Defendant contends that she is not a manager but an administrator. For purposes of resolving the constitutional questions before the court, nothing turns on her precise employment status.

3. In June 2011, the Bermuda Public Services Union (“BPSU”) negotiated with the Second Defendant to be certified as the exclusive bargaining agent of 23 management and administrative staff of whom 15 were said by the Union to be managers and eight to be administrators. All 23 members of staff were non-unionized at the time, but sought to become members of the BPSU in order to form one bargaining unit under the 1965 Act. They included the four Plaintiffs.

4. On 7^th June 2011, the BPSU wrote to the Department of Labour and Training (“the Department”) stating that it was applying for the said certification and stating that 13 of 23 staff eligible to form the bargaining unit had joined the Union. Applications for membership from those 13 employees, of whom nine were managers, were enclosed.

5. On 21^st June 2011, the Mayor of the Second Defendant wrote to the Department confirming that the Board of the Second Defendant: “resolved to support the action by the Bermuda Public Services Union to act as the exclusive bargaining agent…” for non-unionized staff in its employ.

6. On 13^th July 2011, the Acting Director of the Department of Labour and Training ordered pursuant to the 1965 Act that: “the Bermuda Public Service Union shall be certified as the exclusive bargaining unit” for the non-unionized employees of the Second Defendant.

7. By a memorandum of understanding dated 20^th July 2011, the Second Defendant and the BPSU as the sole bargaining agent for the said 23 employees agreed that the existing terms and conditions of employment for those employees would remain as they were from 15^th July 2011 to 15^th July 2012 or until a collective bargaining agreement was agreed, whichever came first.

8. By a collective bargaining agreement between the Second Defendant and the BPSU dated 19^th January 2012, but expressed to come into effect on 1^st January 2012 and expire on 31^st December 2012, the Second Defendant confirmed that it recognized the BPSU as the sole bargaining agent for the 23 management and administrative employees, who were by now all members of the Union.

9. Following the election of a new Board in 2012, the Second Defendant declined to renew the collective bargaining agreement and has refused to recognize the right claimed by the First and Second Plaintiffs and other management employees to form part of a bargaining unit on the basis that section 30A(2) of the Trade Union Act 1965 defines “bargaining unit” as excluding “management persons”.

Relief sought

10. The Plaintiffs seek the following declarations, namely:

i. That the definition of “bargaining unit” in section 30A(2) of the 1965 Act is void for inconsistency with section 10 of the Constitution in that it hinders them in their freedom to belong to a trade union by prohibiting them from becoming members of a bargaining unit.

ii. That the certification by the Department dated 13^th July 2011 that the BPSU is the exclusive bargaining agent for management and administrative employees of the Second Defendant is valid and of full effect.

iii. That the Plaintiffs and other management employees of the Second Defendant are entitled to be members of the bargaining unit of the BPSU in respect of the Second Defendant.

Statutory regime

The Constitution

11. Section 1 of the Constitution provides in material part:

“Fundamental rights and freedoms of the individual

Whereas every person in Bermuda is entitled to the fundamental rights and freedoms of the individual, that is to say, has the right, whatever his race, place of origin, political opinions, colour, creed or sex, but subject to respect for the rights and freedoms of others and for the public interest, to each and all of the following, namely:

…

(b) freedom … of assembly and association;

… the subsequent provisions of this Chapter shall have effect for the purpose of affording protection to the aforesaid rights and freedoms subject to such limitations of that protection as are contained in those provisions, being limitations designed to ensure that the enjoyment of the said rights and freedoms by any individual does not prejudice the rights and freedoms of others or the public interest.”

12. Section 10 of the Constitution provides in material part:

“Protection of freedom of assembly and association

10 (1) Except with his consent, no person shall be hindered in the enjoyment of his freedom of peaceful assembly and association, that is to say, his right to assemble freely and associate with other persons and in particular to form or belong to political parties or to form or belong to trade unions or other associations for the protection of his interests.

(2) Nothing contained in or done under the authority of any law shall be held to be inconsistent with or in contravention of this section to the extent that the law in question makes provision —

(a) that is reasonably required —

(i) in the interests of defence, public safety, public order, public morality or public health;

(ii) for the purpose of protecting the rights and freedoms of other persons; or

(b) that imposes restrictions upon public officers,

except so far as that provision or, as the case may be, the thing done under the authority thereof is shown not to be reasonably justifiable in a democratic society.”

13. Section 15 of the Constitution provides in material part:

“Enforcement of fundamental rights

15 (1) If any person alleges that any of the foregoing provisions of this Chapter has been, is being or is likely to be contravened in relation to him, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.

(2) The Supreme Court shall have original jurisdiction —

(a) to hear and determine any application made by any person in pursuance of subsection (1) of this section; and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (3) of this section,

and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the foregoing provisions of this Chapter to the protection of which the person concerned is entitled:

Provided that the Supreme Court shall not exercise its powers under this subsection if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law.”

The 1965 Act

14. Section 30A of the 1965 Act contains various definitions for the purposes of sections 30B to 30S of the Act. The following are of particular relevance:

““bargaining agent” means a union that acts on behalf...