Stevedoring Services Ltd v Simmons (on behalf of the members of the Portworkers Division of the Bermuda Industrial Union) 1998 Civil Jur. No 314
| Jurisdiction | Bermuda |
| Judgment Date | 06 April 2000 |
| Docket Number | Civil Jurisdiction 1998 No. 314 |
| Date | 06 April 2000 |
| Court | Supreme Court (Bermuda) |
In the Supreme Court of Bermuda
Meerabux, J
Civil Jurisdiction 1998 No. 314
-and-
and
Mr. D. Duncan and Mrs. V. Telford for the Applicant/Defendants
Mr. A. Dunch for the Plaintiff
Secretary of State for Employment v Associated Society of Locomotive Engineers and Firemen (No.2)UNK [1972] 2 All ER 949
Ford Motor Car Ltd. v Amalgamated Union of Engineering and Foundry WorkersELR [1969] 2 QB 303
Wickman Machine Tool Sales Ltd v SchulerELR [1974] AC 235
National Bank of Sharjah v Dellborg (1997) unreported
Mannai Investments Co. Ltd v Eagle Star Life Assurance Co. Ltd.UNK [1997] 3 All ER 352
Malik v Bank of Credit and Commerce International SAUNK [1997] 2 All ER 1
Western Excavating (ECC) Ltd v SharpICR [1997] ICR 221
Courtaulds Northern Textiles Ltd v AndrewUNK (1979) IRLR 84
Antaios Compania SA v Salen ABELR [1985] 1 AC 191
United Bank Ltd v AkhtarUNK (1989) IRLR 507
Cantor Fitzgerald International v CallaghanUNK [1936] 2 All ER 411
Woods v WM Car Services (Peterborough) LtdICR [1981] ICR 666
Lewis v Motorworld Garages LtdICR [1986] ICR 157
Imperial Group Pension Trust Ltd v Imperial Tobacco LtdUNK [1991] 2 All ER 597
Spring v Guardian Assurance plcUNK [1994] 3 All ER 129
Rookes v BarnardUNK [1962] 2 All ER 579
Labour Relations Act, s. 9
Ban on overtime — Injunction restraining ban — Contempt — Essential services — Concerted course of action with intention to disrupt services — Course of conduct in breach of contracts of employment — Implied duty of trust and confidence
The application before me arises out of the current industrial dispute between the Stevedoring Services Limited, the Plaintiff, and the Portworkers' Division of the Bermuda Industrial Union (‘BIU’).
By writ issued on 16 September 1998 the Plaintiff, (‘the employer’), a limited liability company carrying on the business as stevedores, brought an action seeking an injunction restraining the Defendants, Derrick Burgess, Christopher Furbert, Sinclair Smith and Orin Simmons, then members of the BIU and the Portworkers' Division of that Union and each of the members of the Portworkers' Division of BIU from contravening the Labour Relations Act 1975 (‘the Act’) by means of irregular industrial action short of a strike as well as seeking a declaration that the conduct of the Defendants and each of them and the members of the Portworkers' Division of BIU is unlawful as proscribed by section 9 of the Act. By a summons issued on the same day the Plaintiff claimed an injunction and a declaration in the terms of the writ. On that day the Court granted the Plaintiff an injunction ordering the-restraining of each of the Defendants and each of the members of the Portworkers' Division of BIU from contravening the Act ‘by means of irregular industrial action short of a strike, namely the banning of overtime at the docks of Hamilton’
The Plaintiff by a Notice of Motion issued on 9 February 2000 claimed an Order that the Defendants, Derrick Burgess, Christopher Furbert and Sinclair Smith be arrested and brought before the Court to show cause as to why they ought not to be punished for contempt in disobeying the Court Order dated 16 September 1998 by procuring the banning of overtime at Hamilton docks with effect from 4 February 2000.
On 10 February 2000 Wade-Miller J. ordered the Defendants Derrick Burgess, Christopher Furbert and Sinclair Smith to attend Court on 18 February 2000 to show cause as to why they ought not to be punished for contempt of Court in disobeying the Order of the Court dated 16 September 1998 and also ordered each and every employee of the Plaintiff who is a member of the Portworkers' Division of BIU to abide by the terms of the injunction granted by the Court on 16 September 1998 and not to contravene the Act by engaging in irregular industrial action short of a strike through complying with the overtime ban put into effect by BIU on 4 February 2000. Thereafter the Defendants by a summons issued on 15 February 2000 applied for an Order that the injunction granted on 16 September 1998 be discharged.
On 18 February 2000 the Defendants filed in one paragraph their defence wherein they ‘deny each and every allegation as set out in the Statement of Claim and deny that the Plaintiff is entitled to the relief claim therein.’
On 18 February 2000 Wade-Miller J. ordered the Plaintiff's Notice of Motion dated 9 February 2000 to stand adjourned with liberty to restore after the hearing and the Court's ruling on the Defendants' summons dated 15 February 2000, the Defendant's summons be listed for a two-day hearing commencing 16 March 2000 and all the deponents be available for the purpose of cross-examination
The injunction which the Defendants seek to discharge is in the following terms:
‘1. That an injunction issue restraining each of the Defendants and each of the members of the Portworkers' Division of the BIU from contravening the Labour Relations Act, 1975 by means of irregular industrial action short of a strike, namely the banning of overtime at the docks of Hamilton’.
I take the crucial question in this application which, since it relates to an injunction, to be this: have the Defendants shown on the evidence such a likelihood of establishing that the course of conduct of the Defendants and each of the members of the Portworkers' Division of BIU in banning overtime work on the Hamilton docks constituted irregular industrial action short of a strike. For this purpose I must consider what the contracts of employment of each and every employee of the Plaintiff who is a member of the Portworkers' Division of BIU (‘the dockworkers’)are and see whether or not the course of conduct taken by the dockworkers constitutes irregular action short of a strike.
It is not in dispute that the Defendant, Orin Simmons, is no longer employed by the Plaintiff.
Port and dock services are specified in First Schedule to the Act as essential services. Part in of the Act specifically applies to such services and under that Part is section 9 which restricts specified industrial action in an essential service.
The relevant portion of section 9 provides:
‘9 (1) ….. 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 Labour Relations Officer under section 3(1) as read with section 7, and
(b) thereafter valid notice of the intended ….. irregular industrial action short of a strike has been given to the Labour Relations Officer 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 ….. irregular industrial action short of a strike is to commence, and
(c) the ……… irregular industrial action short of a strike is the ……. 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.
(2) No notice of an intended ……… irregular industrial action short of a strike shall be valid for the purposes of subsection (l)(b) unless it specifies—
(a) the industrial action to be taken, whether this be …………. irregular industrial action short of a strike, and if it be irregular industrial action short of a strike, the nature of such action;
(b) the persons or category of persons who are to participate in the ……….. irregular industrial action short of a strike, being persons who are employers or workmen in the essential service in which the ………….. irregular industrial action short of a strike is to take place,
(c) the day upon which the lock-out, strike or irregular industrial action short of a strike is to commence.
…………………………………………………………
(5) Any person who—
………………
(b) being a workman employed in an essential service, takes part in any ……. irregular industrial action short of a strike, which is declared unlawful by subsection (1); or
knowing or having reasonable cause to believe that the probable consequences of that …… workman so doing, either alone or in combination with others, would be to deprive the public, wholly or to a great extent, of that service, commits an offence: Punishment on summary conviction, imprisonment for 3 months or a fine of $500 or both such imprisonment and fine.
(6) For the purposes of this section a labour dispute shall not be regarded as being within an essential service unless it is a dispute between employers and workmen, or between workmen and workmen engaged in the provision of that service.’
The key expressions ‘irregular industrial action short of a strike’, ‘labour dispute’, ‘terms and conditions of employment’ and ‘workman’ are defined in section 1(1) of the Act as follows:
“‘‘irregular industrial action short of 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;
‘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
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