Bermuda Industrial Union v BAS-Serco Ltd

• Jurisdiction: Bermuda
• Judgment Date: 22 December 2003
• Date: 22 December 2003
• Docket Number: Civil Appeal 2003 : No. 16
• Court: Court of Appeal (Bermuda)

In the Court of Appeal for Bermuda

Sir James Astwood P

Clough J A

Nazareth J A

Civil Appeal 2003 : No. 16

(Civil Jurisdiction 2002 : No. 134)

(Civil Jurisdiction 2002 : No. 353)

(Civil Jurisdiction 2003 : No. 17)

BETWEEN:

The Bermuda Industrial Union

Appellants

-and-

Bas-Serco Limited

Respondents

BETWEEN:

The Bermuda Industrial Union

Appellant

-and-

Bas-Serco Limited

Respondent

BETWEEN:

Dale Burgess

Paul Hollis

George Scott

Damon Smith

Sheldon Steede

The Bermuda Industrial Union

Appellant

-and-

The Attorney General Bas-Serco Limited

Respondent

Delroy Duncan (Trott and Duncan) for the Appellants

Alan Dunch and Juliana Snelling (Mello Jones & Martin) for the Respondent Bas-Serco Limited

Wilhelm Bourne, Solicitor General for Attorney General

Anisminic Ltd v Foreign Compensation CommissionELR [1969] 2 AC 157

R v Lord President of the Privy Council, ex parte PageELR [1993] AC 682

Minister of Home Affairs v FisherELR [1980] AC 319

Collymore v Attorney GeneralELR [1970] AC 539

Trade Union Amendment Act 1998

Trade Union Act 1965

Bermuda Constitution Order, s. 10

Bargaining unit of union — Whether Tribunal's decision ultra vires — Application by non-union workers to cancel certification of union as exclusive bargaining agent

JUDGMENT

Clough J A

Introduction

1. The appellants in these consolidated proceedings are Dale Burgess, Paul Hollis, George Scott, Damon Smith, Sheldon Steede and the Bermuda Industrial Union (BIU). The five individual appellants are all members of BIU who have a personal interest in the proceedings, being employees of the second respondent Bas-Serco Limited (Serco).

The appellant's appeal against the judgment of Storr AJ on the 2^nd May 2003 declaring (1) that the decision of the majority of the members of the Tribunal appointed by the Minister of Labour, Home Affairs and Public Safety (the Minister) to determine the bargaining unit of firefighters at Serco was made in excess of jurisdiction and was wrong in law and is therefore null and void; and (2) that section 30P(6) of the Trade Union Amendment Act 1998 (the 1998 Act) does not contravene section 10 of the Bermuda Constitution Order 1968 (the Constitution).

2. The Tribunal was appointed by the Minister under section 30P(4) of the 1998 Act to determine the appropriate bargaining unit in question in accordance with the requirements of the 1998 Act in relation to an application by non union workers employed by Serco made under section 30P(l) for the cancellation of the certification of BIU as the exclusive bargaining agent of the existing bargaining unit which included the applicant workers. The first issue raised in this appeal is whether the Tribunal's decision was made ultra vires its statutory power and a nullity, as found by the judge. The second issue is whether section 30P(6) of the 1998 Act (which provides for a ballot by the workers, and not by union members exclusively, in a bargaining unit which is the subject of cancellation proceedings) contravenes section 10 of the Constitution.

3. The Attorney General has played no part in the proceedings, electing not to make any submissions below or in this Court as to the validity of the terms of reference of the Tribunal or the constitutional validity of section 30P(6) of the 1998 Act.

4. Before going to the factual background it is convenient to begin by examining the relevant legislative framework.

The relevant legislation

The Trade Union Act 1965

5. Section 2 (1) of the Trade Union Act 1965 (the 1965 Act) includes the following definitions:

‘collective agreement’ means any agreement or arrangement made (in whatever way and in whatever form) between—

• (a) a trade union and an employer; or

• (b) a trade union and a trade union;

‘trade union’ means any combination whether temporary or permanent, the principal purposes of which are, under its constitution, the following purposes, hereinafter in this Act referred to as statutory purposes, that is to say, the regulation of the relations between workmen and employers or between workmen and workmen, or between employers and employers ………..

‘workman’ means an individual regarded in whichever (if any) of the following capacities is applicable to him, that is to say, as a person who works or normally works or seeks to work

• (a) under a contract of employment; or

• (b) …………………………………’

Section 2 (2) provides—

‘(2) For the purposes of this Act, there shall be an agency shop where the terms and conditions of employment of any workman include a condition that such workman must either—

• (a) be a member of a trade union; or

• (b) agree to pay appropriate contributions to that trade union in lieu of membership,

whether or not a right to elect to pay equivalent contributions to charity is mentioned or referred to in such terms and conditions of employment.’

6. The material provisions of section 30 (which clearly safeguards fundamental constitutional rights) are as follows:

‘30(1) As between himself and his employer, every workman shall have the following rights—

• (a) the right to be a member of such trade union as he may choose;

• (b) subject to section 31, the right not to be a member of any trade union or to refuse to be a member of a particular trade union;

• (c) where he is a member of a trade union, the right, at any appropriate time, to take part in the activities of the trade union (including any activities as, or with a view to becoming, an official of the trade union) and the right to seek or accept appointment or election, and (if appointed or elected) to hold office, as such an official.

(2) Any employer, or any person acting on behalf of an employer who—

• (a) prevents or deters a workman from exercising any of the rights conferred on him by subsection (1); or

• (b) dismisses, penalizes or otherwise discriminates against a workman by reason of his exercising any such right; or

• (c) subject to section 31, refuses to engage a workman on the grounds that, at the time when he applied for engagement—

  • (i) he was a member of a trade union or of a particular trade union; or

  • (ii) that he was not then a member of a trade union or of a particular trade union or of any of two or more particular trade unions,

commits an offence:

………………………………….

(3) For the purposes of subsection (2)(a) an employer, or a person acting on behalf of an employer, shall not be regarded as preventing or deterring a workman from exercising the rights conferred on the workman by subsection (1)(a) by reason only that (without any suggestion or reward for compliance or penalty for non-compliance) he seeks to encourage the workman to join a trade union which the employer recognizes as having negotiating rights in respect of him.’

7. Sections 34 to 39 are concerned with the machinery for setting up and the content of an agency shop agreement between a workmen's trade union and an employer (or an employers' trade union), who are parties to a collective agreement, relating to workmen who are workmen in respect of whom the trade union party to the agency shop agreement has negotiating right under the collective agreement. No agency shop agreement can take effect unless it is approved by a secret ballot of the workmen in respect of whom it is to apply. The text of section 34 is as follows:

‘34 (1) In this section and sections 35 and 36 ‘collective agreement’, means a collective bargaining agreement between a workmen's trade union and an employer or an employers' trade union.

(2) The parties to a collective agreement may agree to set up an agency shop (such agreement being termed, for the purposes of this Act, an ‘agency shop agreement’) in respect of workmen of one or more descriptions specified in the agency shop agreement, being workmen in respect of whom the trade union party to the agency shop agreement has negotiating rights under the collective agreement.

(3) The parties to an agency shop agreement may, by a further agency shop agreement, vary or terminate an agency shop set up by a previous agency shop agreement.

(4) No agency shop agreement shall take effect unless it is approved by the workmen in respect of whom it is to apply by ballot in pursuance of the order of the Minister under section 35(3).

(5) An agency shop agreement shall not contain any provision at variance with this Act, and an agency shop agreement under subsection (2) shall specify—

• (a) the employer or employers to be included within the agency shop;

• (b) the categories of workmen to be included in the agency shop;

• (c) the manner in which the appropriate contributions for the purposes of section 32 are to be determined, and whether or not new members of the trade union are required to pay an initial payment on joining the union;

• (d) the manner in which the appropriate contributions referred to in paragraph (c) are to be collected;

• (e) the period during which the agency shop is to be in force or whether the agency shop is to continue in force indefinitely.’ [Emphasis supplied]

8. The Act contemplates that once a collective agreement is made it should be followed, if both parties agree, by the making of an agency shop agreement and a ballot of the affected workmen. It is also provided, in sections 35 and 36 that, if the parties fail to enter into such an agreement any party to the collective agreement may report the matter to the Labour Relations Officer. If the latter's conciliation endeavours are unsuccessful the Minister (charged with responsibility for Labour) is required to order a secret ballot of the affected workmen on an agency shop scheme prepared by him after considering any representations the parties to the collective agreement might make. It is material to the present case that failure of the parties to a collective agreement to enter into an agency shop agreement cannot result in conciliation by the Labour Relations Officer or the...