Bermuda Industrial Union and Others v Minister of Home Affairs
| Jurisdiction | Bermuda |
| Judge | Baker P,Bell JA,Bernard JA |
| Judgment Date | 16 January 2017 |
| Court | Court of Appeal (Bermuda) |
| Date | 16 January 2017 |
| Docket Number | Civil Appeal 2016 No 2 |
[2017] Bda LR 28
In The Court of Appeal for Bermuda
Baker P; Bell JA; Bernard JA
Civil Appeal 2016 No 2
Mr D Duncan for the Appellants
Mr G Howard for the Respondent
The following cases were referred to in the judgment:
Societe Generale, London Branch v Geys [2012] UKSC 63
London Transport Executive v ClarkeICR [1981] ICR 355
Nilon Ltd v Royal Westminster Investments SAUNK [2015] UKPC 2
Rolly Royce PLC v Unite the UnionUNK [2009] EWCA Civ 387
Wickland Holdings Ltd v TelchadderUNK [2012] EWCA Civ 635
Tuck & Sons v PriesterELR (1887) 19 QBD 629
Lester v Garland (1808) 15 Ves 248
Dodds v WalkerUNK [1981] 2 All ER 609
R (Zaporozhchenko) v Westminster Magistrates Court [2011] EWHC 34
Brantley v Constituency Boundary CommissionUNK [2015] UKPC 21
Labour dispute — Relationship of contract law to labour legislation — Statutory interpretation — Power of Court to grant declarations
JUDGMENT of Baker P
1. This is an appeal by three unions, the Bermuda Industrial Union (‘BIU’), the Bermuda Public Service Union (‘BPSU’) and the Bermuda Union of Teachers (‘BUT’) against a decision of the Chief Justice made on 15 January 2016, granting two declarations to the Minister of Home Affairs (the respondent to the present appeal). The declarations were in the following terms:
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i. That BIU, BPSU and Fire Officers' Association, as regards their divisions or units which are essential services, on or about 28 January 2015, acted unlawfully, contrary to section 9(1) of the Labour Relations Act 1975 in taking irregular industrial action short of a strike.
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ii. That BIU, BPSU and BUT acted unlawfully contrary to section 19 of the Labour Disputes Act 1992 in taking irregular action short of a strike.
The Fire Officers' Association were respondents in the court below but are not parties of this appeal.
2. Faced with a very grave financial deficit, the Government of Bermuda sought the assistance of the Bermuda Trade Union Congress (‘BTUC’). Following discussions with the three appellants, the Fire Officers' Association and the Prison Officers' Association, an agreement was reached on 26 June 2013 between the Government and the BTUC. The agreement was subsequently ratified and its terms set out in a Memorandum of Understanding (‘MOU’). The agreement involved substantial concessions on the part of the unions to help reduce the deficit through cost cutting measures. It is unnecessary to set out all the terms of the MOU. Suffice it to say that from the date the MOU was signed (22 July 2013) all public officers agreed to take 12 unpaid and unworked days per year, and there was a pay freeze until 31 March 2015, which was the date until which the MOU was to be effective. The unpaid days are known as furlough days. A Budget Reduction Working Group involving representatives of the unions, the private sector and Government was set up on 19 November 2014 to further tackle the problem. Phase 1, which aimed at finding a reduction of $67,000,000 or 5% in the cost of operating Government, was completed by 12 December 2014 in order to inform the development of the budget. It met on seven occasions, the last one being on 17 December 2014, and although progress was made, the Government failed to persuade the unions to extend furlough days beyond 31 March 2015.
3. The Chief Justice said at para 98 of his judgment:
‘The collaborative process (effectively focussed on preserving through other means the 5% salary saving achieved by furlough days) was vigorously pursued by the BTUC and half-heartedly by the Government side and the process drifted towards an open-ended conclusion. The Government side, for its part seemingly underestimating the importance of communicating with the unions in a matter befitting major stakeholders in the public sector finance reform issue, provoked through inelegant communications what one union newsletter described as the ‘occupy Cabinet Office’ campaign.’
4. What happened was that on 23 January 2015 the Finance Minister wrote to the Vice President of the BTUC, Mr Furbert. The letter said it was imperative for the furlough to be continued in order for Bermuda's financial health to be improved in accordance with the Medium Term Expenditure Framework. The budget had to be debated and approved by both Houses of the Legislature and in order to meet the 31 March 2015 deadline, the budget development process had to be concluded immediately. The letter concluded by inviting BTUC to reconsider its position on the continuation of furlough, saying that if they were unable to agree the Government would be forced to take steps to achieve the necessary reductions in expenditure and this could include a reduction in salary of Government employees equal to the savings achieved by the furlough in the current year. He asked for a decision by noon on Monday 26 January 2015. Since the letter was received at 1 pm on Friday 23, this was an impossible and unrealistic deadline if BTUC was to consult its members. Furthermore, the letter contained a threat that if the unions did not toe the Government's line, the line would be imposed anyway. As the Chief Justice said, the letter was on any detached and objective view a wholly surprising and disproportionately confrontational communication.
5. That afternoon the BTUC convened a meeting to be held on the Monday at 10:00 a.m. for all public service employees. At some point the Premier addressed the crowd in conciliatory fashion, suggesting reopening negotiations with a view to finding further cost savings to avoid further furlough days. A meeting was arranged for that afternoon, but the Government did not turn up and asked for it to be put off. A further general meeting was convened for 9:00 a.m. on Tuesday 27 January. BTUC's position changed from being prepared to negotiate to refusing to negotiate unless furlough days were taken off the table.
6. The Head of the Civil Service and Cabinet Secretary reported a labour dispute to the Department of Workforce Development. The respondent gave notice of a labour dispute under section 4 of the Labour Disputes Act 1992, which was published electronically in the Official Gazette and, on the following day, published in the Royal Gazette. At 6.21 pm on 27 January 2015 the Head of the Civil Service sent a copy of the section 4 notice to all public officers advising that pay would be deducted for any period in which they participated in an unlawful strike.
7. The respondent, on Wednesday 28 January, sought and obtained an ex parte injunction preventing the appellants and the other two unions from, in summary, engaging in any strike or irregular industrial action short of a strike arising from or connected with the labour dispute between them and the respondent.
8. Meanwhile, discussions continued and the dispute was resolved without furlough days being continued after 31 March 2015. On 24 March 2015 the respondent issued an originating summons against the appellants and the other two unions. The substantive hearing took place before the Chief Justice on 24 – 26 November 2015 and the Chief Justice gave judgment on 15 January 2016. The respondent sought wide ranging relief including a permanent injunction and declarations, two of which are the subject of this appeal. The respondent succeeded only in obtaining the two declarations and it is unnecessary to go into any other aspects of the case.
9. The first declaration is that the appellants acted unlawfully contrary to section 9(1) of the Labour Relations Act 1975. Section 9(1) which is headed ‘Restriction on strikes in an essential service’, provides:
‘9 (1) A lock-out, strike or any irregular industrial action short of a strike in an...
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