Bermuda Prison Officers Association v Labour Dispute Tribunal

• Jurisdiction: Bermuda
• Judge: Chief Justice Hargun
• Judgment Date: 08 January 2020
• Neutral Citation: [2020] SC Bda 2 Civ
• Court: Supreme Court (Bermuda)
• Docket Number: CIVIL JURISDICTION 2019: No. 443
• Date: 08 January 2020

[2020] SC (Bda) 2 Civ (8 January 2020)

In The Supreme Court of Bermuda

Before:

Hon. Chief Justice Hargun

CIVIL JURISDICTION 2019: No. 443

In The Matter of the Labour Disputes Act 1992

And In The Matter of a Decision of the Labour Disputes Tribunal Dated 30 ^th August 2019

Between:

Bermuda Prison Officers Association

Plaintiff

and

Labour Dispute Tribunal (Phillip Perinchief, Clevelyn Critchlow and Betty Christopher)

1 ^st Defendant

and

Minister of National Security

2 ^nd Defendan

Appearances:

Mr Delroy Duncan and Mr Ryan Hawthorne, Trott and Duncan Limited, for the Plaintiff

Mr Mark Diel, Marshall Diel & Myers Limited, for the 1 ^st Defendant

Mr Gregory Howard, Crown Counsel, Attorney General's Chambers, for the 2 ^nd Defendant

Validity of decision made by the Labour Disputes Tribunal appointed under the Labour Disputes Act 1992; whether the decision in relation to GEHI contributions outside the jurisdiction of the Tribunal; whether the decision infringed the constitutional rights of the employees: whether the employees could establish substantive legitimate expectation; whether employees entitled to compensation

Introduction

1 On 30 August 2019, a Labour Disputes Tribunal (“the Tribunal”), established pursuant to section 5 of the Labour Disputes Act 1992 (“the LDA”), delivered its decision (“the Decision”) in relation to a dispute between the Bermuda Prison Officers Association (“the BPOA”) representing officers in the Bermuda Prison Service (“the Prison officers”) and the Minister of National Security (Department of Corrections) (“the Minister” or “the Government”).

2 By that Decision the Tribunal ordered, inter alia, that the entirety of the BPOA membership shall pay 50% of the cost of the Government Employees Health Insurance scheme (“GEHI scheme”) commencing 1 October 2019 and shall pay 100% of the GEHI contributions commencing 1 October 2020 as prescribed by section 5 of the Government Employees (Health Insurance) Act 1986 (“the 1986 Act”).

3 By Originating Summons dated 31 October 2019, the BPOA seeks a declaration that the orders and awards of the Tribunal in its Decision are ultra vires and unlawful insofar as they purport to resolve the disagreement between the BPOA and the Government. It also seeks an order quashing the orders and awards of the Tribunal in its Decision on the same grounds. In the alternative, the BPOA seeks an order under paragraph 15 of the Bermuda Constitution Order (“the Constitution”) interpreting sections 11 and 14 of the LDA to ensure that they comply with the rights enshrined in paragraphs 1 and 13 of the Order.

4 It is appropriate that the Court should make it clear that this Judgment is not concerned with the merits of the Government's policy, as announced by Minister of Cabinet Office with Responsibility for Government Reform on 8 December 2017, that all Government employees should contribute equally to health insurance. Further, this Judgment is not concerned with the merits of the view expressed by the Minister that it is “an unacceptable situation wherein some groups of employees contribute 50% towards the Government Employee Health Insurance (GEHI) scheme whilst other groups have both the employer and employee portions of their GEHI paid by the Government”. These matters are entirely and properly within the exclusive domain of the Minister.

5 This Judgment is concerned with the narrow issue whether the Tribunal has the jurisdiction to impose terms on the parties when an employer and a trade union, representing the employees, are unable to agree to the terms of a new collective bargaining agreement and, if the Tribunal did have the jurisdiction to impose such terms, whether its decision can be impugned on the ground that it made errors of law.

Factual Background

6 The BPOA, the Plaintiff, is the recognised trade union representing the interests of the Prison officers and is authorised to collectively agree the terms and conditions of employment.

7 The First Defendant is the Tribunal consisting of Mr. Philip Perinchief (Chairman), Mr. Clevelyn Crichlow and Ms. Betty Christopher appointed pursuant to section 5 of the LDA.

8 The Second Defendant is the Minister of National Security (Department of Corrections), representing the Government of Bermuda, which employs the officers in the Bermuda Prison Service.

9 All officers in the Bermuda Prison Service are employed subject to terms and conditions which are set out in relation to each individual officer. The BPOA also negotiates collective agreements on behalf of the Prison officers with the Government. The Government, in relation to those negotiations, is represented by the Public Sector Negotiating Team. The last signed, concluded agreement (“the Agreement”) expired on 30 September 2008.

10 Since October 2016 the BPOA and the Government have been in negotiations over changes in terms and conditions and in particular in relation to the rate of pay. Matters related to healthcare and in particular whether officers should make any contribution to the GEHI scheme were also under discussion but marked “reserved” to indicate it was to be subject to further discussion.

11 As noted earlier, on 8 December 2017, the Minister of Cabinet office with Responsibility for Government Reform made a statement to the House of Assembly stating that the Government had taken the decision that there will be parity amongst all of its employees and to this end all Government employees will contribute equally to health insurance.

12 In accordance with the Dispute Resolution provision of the Agreement, Article 11, the Labour Relations Officer, at the invitation of the parties, engaged in conciliation in April 2018. According to the BPOA, the parties had remained under the remit of the Labour Relations Officer and the BPOA believed that they were still in mediation with the Labour Relations Officer who was returning to the office on 6 June 2019.

13 From Friday, 3 May, 2019, the Prison officers determined that they would work strictly to their contracts by foregoing offers of voluntary overtime work. I accept the submission made on behalf of the BPOA that the “work-to-rule”, in accordance with their contracts of employment, did not amount to engaging in industrial action. I accept that the employees did not breach their contracts of employment by refusing to perform tasks which are outside of the requirements of the contracts (See: Burgess v Stevedoring Services Ltd [2002] 1WLR 2838; Ministry of Justice v Prison Officers' Association [2018] ICR 181).

14 On 3 June 2019, the Minister responsible for Labour, the Hon. Minister Lovitta Foggo, published a Notice in the Official Gazette declaring a labour dispute between the BPOA and the Government pursuant to section 4 of the LDA. The Minister subsequently referred the dispute to the Tribunal pursuant to section 11 of the LDA.

15 The Tribunal drafted “agreed” terms of reference which comprised of items upon which the parties could not agree and items which had been “reserved” for further discussion. Included in the terms of reference were the issues of pay increases and contributions to the GEHI scheme. It is to be noted that Officer Timothy Seon, Chairman of the BPOA, protested to the Chairman of the Tribunal, in his letter dated 27 June 2019 that the Terms of Reference were imposed upon the BPOA without its consent.

16 The Tribunal heard evidence and submissions and gave its Decision on 30 August 2019.

Background to the Government Employees Health Insurance (GEHI) scheme and Prison officers' contractual rights relating to health benefits

17 The statutory scheme relating to GEHI is of long standing. It was in existence when the Government Health Insurance Act 1960 was passed. Whilst the basic structure of the scheme has remained the same, the scheme has been successively modified by the Government Employees (Health Insurance) Act 1965 (“the 1965 Act”), the Government Employees (Health Insurance) Act 1971 (“the 1971 Act”) and the Government Employees (Health Insurance) Act 1986 (“the 1986 Act”).

18 Uniformed officers (Bermuda Police Service, Bermuda Fire Service, Bermuda Prison Service and the Bermuda Regiment) have a long history of being the recipients of free health care as part of their terms and conditions of service. In the case of Prison officers the Court was provided, as an exhibit to the First Affidavit of Timothy Seon, copies of the standard terms and conditions spanning the period 1964 to 2018. In considering the submissions made by the parties, it is instructive to keep in mind the legislative framework in relation to GEHI scheme over the last 50 years and the separate contractual rights of Prison officers in relation to medical benefits under their contracts of employment.

(i) The legal position under the 1965 Act and the contractual rights of the Prison officers during its application

(a) The 1965 Act

19 Counsel for the Government referred the Court, by way of historical background to the 1971 Act. The 1971 Act itself shows, in the repealing sections, that it succeeded the 1965 Act. Section 3(1) of the 1965 Act provided that “there shall be established a health insurance scheme for the benefit of all government employees (other than excepted persons) who shall make contributions and thereupon be eligible to receive benefits in accordance with the provisions of this Act in respect of any illness, injury or other disability suffered by such employees or their dependents”

20 Section 4(1) provided that “there shall be established a Government Employees Health Insurance Fund, and that such Fund shall be used for the payment of expenses incurred by such government employees, not being excepted persons, for medical attention and treatment, including treatment and maintenance in hospital, in accordance with the provisions of this Act…”.

21 Section 5(1) provided that “every government employee, not being...