Minister of Home Affairs v Bermuda Industrial Union and Others

• Jurisdiction: Bermuda
• Judgment Date: 15 January 2016
• Date: 15 January 2016
• Docket Number: Civil Jurisdiction 2015 No 120
• Court: Supreme Court (Bermuda)

[2016] Bda LR 5

In The Supreme Court of Bermuda

Civil Jurisdiction 2015 No 120

In the matter of the Labour Disputes Act 1992

And in the matter of Order 29 of the Rules of the Supreme Court 1985

And in the matter of the collective bargaining agreements between the Government of Bermuda and Bermuda Industrial Union, Bermuda Public Services Union and the Bermuda Union of Teachers

Between:

The Minister of Home Affairs

Applicant

and

Bermuda Industrial Union

Bermuda Public Services Union

Bermuda Union of Teachers

Prison Officers Association

Fire Officers Association

Respondents

Mr G Howard and Mr R Ambrosio for the Applicant

Mr D Duncan and Ms S Tucker for the Respondents

The following cases were referred to in the judgment:

Taff Vale Railway v Amalgamated Society of Railway ServantsELR [1901] AC 426

Heatons Transport (St Helens) Ltd v Transport and General Workers UnionELR [1973] AC 15

Saskatchewan Federation of Labour v Saskatchewan [2015] SCC 4

Collymore v Attorney GeneralELR [1970] AC 538

Benevides v Corporation of HamiltonBDLR [2014] Bda LR 33

Hooper v RogersELR [1974] 1 Ch 43

Stevedoring Services Ltd v Burgess et alBDLR [2000] Bda LR 28

Industrial action — Application for injunction — Labour dispute — Furlough days — 20 Application for permanent injunction

JUDGMENT of Kawaley CJ

Introductory

1. On January 28, 2015, upon the Applicant's undertaking to issue an Originating Summons seeking substantive relief, I granted an ex parte Order (‘the Ex Parte Injunction’) in the following principal terms:

‘1. Consequent upon a Gazetted Notice published by the Intended Applicant on 27 January, 2015 pursuant to section 4 of the Labour Disputes Act 1992 that a labour dispute exists or is apprehended, the Intended Respondents whether by themselves, their servants or their agents or otherwise howsoever be, and each of them is, hereby restrained

• (1) from engaging in any lock-out, strike, irregular industrial action short of a strike

• (2) from commencing or continuing or applying any sums in furtherance or support of any lock-out, strike, or irregular industrial action short of a strike

• (3) From taking part in, inciting or in any way encouraging, persuading or influencing any person to take part in, or otherwise act in furtherance of, a lock-out, strike or irregular industrial action short of a strike

arising from or connected with the labour dispute between the Intended Applicant and the Intended Respondents…’

2. The Originating Summons which was foreshadowed at the hearing which concluded with the granting of the Ex Parte Injunction was not issued until March 24, 2015. It was formally issued in the name of the Minister but the Summons made it clear that in issuing these proceedings the Minister was also acting on behalf of the Government as a whole. Two heads of relief were sought. Firstly, declarations that (a) the Respondents acted unlawfully on or about January 28, 2015 by, inter alia, inciting their members to strike or take irregular industrial action, and (b) the Respondents' members acted unlawfully by taking the action complained of. Secondly, permanent injunctive relief was sought restraining the Respondents from engaging in unlawful strike action or irregular industrial action falling short of a strike.

3. The basis for the present application was set out in the Originating Summons with admirable clarity. Most narrowly, it was asserted that the Respondents' past conduct gave rise to a fear of imminent unlawful action in circumstances where the Government needed to rationalize public sector services and to negotiate with all public sector unions, including the Respondents, in this regard. More broadly, it was asserted that unlawful industrial action was undermining the Government's efforts to promote economic recovery by damaging Bermuda's international reputation as an attractive place to do business.

The questions for determination

Questions identified in the Originating Summons

4. The Originating Summons identified the following questions as arising for determination:

• i. whether the Minister and/or the Government had sufficient interest in the injunctive relief sought under the Labour Relations Act 1975 (the ‘LRA’);

• ii. whether the Minister and/or the Government had sufficient interest in the injunctive relief sought under the Labour Disputes Act 1992 (the ‘LDA’);

• iii. whether there has been unlawful industrial action by the Respondents, either between 2011 and 2015 and/or on or about January 28, 2015, which ‘continues to threaten the rule of and respect for the law and contractual relations’;

• iv. whether the Respondents or either of them acted unlawfully on or about January 28, 2015 contrary to sections 9(1) and/or 9(5) and/or 34 of the LRA and/or section 19 of the LDA.

Issues raised by the Respondents

5. The Respondents at the hearing of the Originating Summons raised the following issues in opposition to the relief sought:

• i. no valid notice of a labour dispute was given in accordance with section 4 of the LDA because the dispute was inadequately particularised and/or because the notice did not take effect until it was finally published. Accordingly, no breach of the LDA occurred;

• ii. it is clear from section 2 of the LRA that the Act does not apply to the 4^th Respondent at all and the historical conduct complained of only relates to the 1^st Respondent;

• iii. section 34(1) of the LRA makes it clear that section 34 does not apply to action designed to maintain terms and conditions of employment of the relevant workers;

• iv. it is unconstitutional for the Minister to seek to rely upon either Act;

• v. the Minister is the wrong party to sue;

• vi. section 40 of the LDA empowers the Court to grant injunctive relief. There is no corresponding power conferred by the LDA. In addition, section 40 expressly applies to unregistered trade unions. There is no corresponding provision in the LDA;

• vii. the Minister of Finance's letter dated January 23, 2015 constituted an anticipatory breach of contract. The Respondents actions were not on any proper view an unlawful response to a threat to terminate the workers' contracts of employment.

Legal findings: overview of the key statutory provisions

The LRA

6. It is indeed clear that the LRA does not apply to prison officers. Section 2 of the LRA provides:

‘This Act shall not apply to—

…

(b) ‘a prison officer as defined for the purposes of the Prisons Act 1979’.

7. Section 1 of the LRA Act contains certain definitions which are incorporated by reference into the LDA. Most significantly:

• i. ‘“labour dispute” means a dispute between—

  • (a) an employer, or trade union on his behalf, and one or more workmen, or trade union on his or their behalf; or

  • (b) workmen, or a trade union on their behalf, and workmen, or a trade union on their behalf, where the dispute relates wholly or mainly to one or more of the following—

    • (i) terms and conditions of employment, or the physical conditions in which workmen are required to work; or

    • (ii) engagement or non-engagement, or termination or suspension of employment, of one or more workmen; or

    • (iii) allocation of work as between workmen or groups of workmen; or

    • (iv) a procedure agreement;

    but shall not include any matter which was the subject of a complaint which has been settled by an inspector or determined by the Employment Tribunal under the Employment Act 2000…’;

• ii. ‘“irregular industrial action short of a strike” means any concerted course of conduct (other than a strike) which, in contemplation or furtherance of a labour dispute—

  • (a) is carried on by a group of workmen with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services; and

  • (b) in the case of some or all of them, is carried on in breach of their contracts of employment or otherwise in breach of their terms and conditions of service…’;

• iii. ‘“strike” means a concerted stoppage of work by a group of workmen in contemplation or furtherance of a labour dispute, whether they are parties to the dispute or not, whether (in the case of all or any of those workmen) the stoppage is or is not in breach of their terms and conditions of employment, and whether it is carried out during, or on the termination of their employment…’

8. Section 9(1), (5) contains the first substantive provisions of the LRA which the Minister alleges were contravened. It must be read with the First Schedule which lists ‘essential services’. Section 9 provides:

‘(1) A lock-out, strike or any irregular industrial action short of a strike in an essential service shall be unlawful unless there is a labour dispute within that service and—

• (a) a report of the labour dispute has been made to the Director under section 3(1) as read with section 7; and

• (b) thereafter valid notice of the intended lock-out, strike or irregular industrial action short of a strike has been given to the Director by the employer, or trade union on his behalf, or workmen, or trade union on their behalf, as the case may be, at least twenty-one days prior to the day upon which the lock-out, strike or irregular industrial action short of a strike is to commence; and

• (c) the lock-out, strike or irregular industrial action short of a strike is the lock-out, strike or action specified in the notice (both as respects its nature and the persons participating) and, subject to subsection (4), commences on the day specified in the notice, or within twenty-four hours thereafter; and

• (d) the dispute has not been referred for settlement to the Permanent Arbitration Tribunal under section 8.…

(5) Any person who—

• (a) being an employer in an essential service, takes part in any lock-out which is declared unlawful by subsection (1); or

• (b) being a workman employed in an essential service, takes part in...