Stevedoring Services Ltd v The Honourable Minister of Labour, The Chairman of the Permanent Arbitration Tribunal, 1. Chris Furbert Jnr. 2. The Bermuda Industrial Union

• Jurisdiction: Bermuda
• Judge: Elkinson, AJ
• Judgment Date: 03 June 2022
• Court: Supreme Court (Bermuda)
• Docket Number: 2021: No. 192

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW AND FOR LEAVE TO APPLY FOR JUDICIAL REVIEW

AND IN THE MATTER OF THE LABOUR RELATIONS ACT 1975 (“LRA”)

AND IN THE MATTER OF THE DECISION OF THE HONOURABLE MINISTER OF LABOUR TO REFER PURPORTED LABOUR DISPUTES TO THE PERMANENT ARBITRATION TRIBUNAL PURSUANT TO SECTION 8 OF THE LRA

BETWEEN:

Stevedoring Services Limited

Applicant

and

The Honourable Minister of Labour

Respondent

The Chairman of the Permanent Arbitration Tribunal

Interested Party

1. Chris Furbert Jnr.

2. The Bermuda Industrial Union

Affected Parties

[2022] SC (Bda) 38 Civ

2021: No. 192

In The Supreme Court of Bermuda

Cases Referred to in the Judgment:-

Burgess & Others v Stevedoring Services Limited [2002] UK PC 39

Regina v. Secretary of State for Health (Respondent) ex parte Quintavalle (on behalf of Prof-Life Alliance) (Applicant) [2002] UK HL 13

Cabell and Markham (1945) 148 F 2d 737

NLW Ltd. v. Woods [1979] 1 WLR 1294

British Broadcasting Company v. Hearn [1977] 1WLR 1004

Express Newspapers Ltd v. Shane [1980] AC 672.

Kentucky Fried Chicken (Bermuda) ltd. v Minister of Economy, Trade and Industry [2013] Bda LR 19

Williams v Case Pack Company (Grenada) Limited [2022] UK PC 9

Dr Gina Tucker v The Public Service Commission and the Board of Education [2020] CA (Bda) 12 Civ

Director of Land Valuation v Banks [2013] Bda LR 47

R. v The Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344

Braganza v BP Shipping Limited and another [2015] UKSC 17

Malloch v Aberdeen Corporation [1971] 1WLR 1579

Counsel for the Applicant: - Mr. Dante Williams, MDM Ltd

Counsel for the Respondent: - Mr. Eugene Johnson, Attorney General Chambers

Counsel for the Affected Parties: - Mr. Marc Daniels, Marc Geoffrey

JUDGMENT OF Elkinson, AJ

Elkinson, AJ

Introduction

1 This is an application for judicial review brought by the Applicant, Stevedoring Services Limited (“Stevedoring Services”) to quash a Decision of the Minister of Labour made on 21 ^st April 2021. The Minister, under section 8 of the Labour Relations Act 1975 (“the 1975 Act”), referred the dispute, characterized by Stevedoring Services as a purported labour dispute, to the Permanent Arbitration Tribunal. As a consequence of changes in the legislation this now replaced by the Employment and Labour Tribunal. Stevedoring Services issued an ex parte Notice of Application for Leave to Apply for Judicial Review on 29 ^th June 2021. The court granted leave on the papers on 19 ^th October 2021 to issue an Originating Notice of Motion which was issued on 29 ^th October 2021.

2 The underlying dispute arose from the dismissal of Chris Furbert jnr. from his employment with Stevedoring Services on 21 ^st February 2020. Stevedoring Services say that the dispute is one which should have been dealt with under the Employment Act 2000 as a simple dispute between employer and employee. They say that the Minister should never have made the referral to the tribunal as if it were a labour dispute in an essential service. Stevedoring Services’ say that this Decision was ultra vires, void and of no effect. They say that the Minister exceeded his statutory power and that the referral of the dispute under section 8 was illegal as the statutory conditions had not been met. They further sought that the Decision be quashed on the grounds of Wednesbury unreasonableness as there was a delay in excess of a year before the report to the Manager under section 7(1) of the 1975 Act was made. A further ground relied on is that the Minister had an improper purpose in making the referral.

The Parties to the Proceedings

3 Stevedoring Services is a publicly held Bermuda company and a subsidiary of Polaris Holding Company Limited. Stevedoring Services’ employees operate the docks of Bermuda, handling the cargo to and from ships. It is the sole provider of port and dock services at the City of Hamilton docks. Those port and dock services include activities which are defined as an essential service pursuant to the legislation.

4 The Respondent is described as the Minister of Labour but since 22 ^nd February 2022 he heads the Ministry of Economy and Labour. At the time of the Decision which is under challenge, he was the person to whom a report of a dispute would be sent by the Manager of the Labour Relations Section under the 1975 Act. Under section 14(3) of the 1975 Act he had the discretion to refer a dispute in an essential service for settlement to the Permanent Arbitration Tribunal. All employment and labour legislation has since 1 ^st June 2021 been consolidated and amended under the Trade Union and Labour Relations (Consolidation) Act 2021, to be referred to as the 2021 Act, and all the separate provisions relating to employment and labour legislation, including the 1975 Act, have been repealed. The 2021 Act was enacted prior to the commencement of these proceedings.

5 The Interested Party to the proceedings is the nominated Chairman of the Permanent Arbitration Tribunal. Further to the 2021 Act, the Permanent Arbitration Tribunal no longer exists and there is now only one Tribunal to deal with all employment and labour matters. This is the Employment and Labour Relations Tribunal. Dr. Bradshaw, who had been appointed the Chairman of the Permanent Arbitration Tribunal by the Minister to settle the dispute and determine the exact terms of reference, did not participate in the proceedings. No criticism is made of that decision as he had taken no steps further to his appointment.

6 The First Affected Party, Chris Furbert jnr., is a former employee of Stevedoring Services and is a member of the Bermuda Industrial Union. It was Mr. Furbert jnr.'s complaint concerning his summary dismissal by Stevedoring Services on 6 ^th February 2020, alleged to be for gross misconduct and insubordination, which gave rise to a report of a labour dispute under the 1975 Act in October 2020. As an employee of Stevedoring Services, he was a member of the Portworkers’ Division of the Bermuda Industrial Union.

7 The Second Affected Party is the Bermuda Industrial Union, headed by Chris Furbert snr. Members of the Bermuda Industrial Union who are full-time employees of Stevedoring Services working under contracts of employment with Stevedoring Services at the City of Hamilton docks are members of the Portworkers’ Division. There is a Collective Bargaining Agreement in force which governs the terms of working on the docks.

The Regulatory Framework

8 The Applicant framed its application under the 1975 Act, both at the time of seeking leave to issue Judicial Review and at the time when it issued and served its Originating Notice of Motion. The Applicant pursued its application as if all matters before the court were to be dealt with under that legislation. The Decision of the Minister to make the referral was on 21 ^st April 2021 and was made pursuant to section 8 of the 1975 Act. However, on 1 ^st June 2021, the Trade Union and Labour Relations (Consolidation) Act became operative. As of that date, the 1975 Act was repealed. It was some four weeks later, the 29 ^th June 2021, that the Applicant issued its application for judicial review.

9 The 2021 Act provided at Section 102(1)(c) that

“any actions or proceedings which commenced under the Trade Union Act 1965, Labour Relations Act 1975 or Labour Disputes Act 1992 but have not concluded, shall be deemed to have commenced under this Act;”

This judicial review application is deemed to have commenced under the 2021 Act but a question to be considered is whether the phrase “actions or proceedings” could also be applicable to the initiation of the labour dispute and the reporting to the Manager or the Labour Relations Officer.

10 Further issues which arise are, having regard to the operation date of the 2021 Act and the transitional provisions, not least that the 1975 Act is repealed and the provisions of the 2021 are stated to have effect in their place, how does this affect the analysis of what the dispute actually is. The questions which need to answered from that analysis will then be:-

The judgment considers the aspects of the 1975 Act which are applicable to steps which had been taken in the labour dispute process and the point in time at which the new provisions of the 2021 Act govern any aspects of the dispute given the language of section 102(1)(c) set out above.

In the course of the judgment, there is by necessity reference to the repealed 1975 Act and due regard to any amendment introduced by the 2021 Act; what affect such amendments did have, if any, on the process which was followed in the underlying dispute concerning the dismissal of Mr. Furbert jnr. from his employment at Stevedoring Services.

• (a) is it a labour dispute?

• (b) is it a labour dispute in an essential service?

• (c) what is the form of the reporting of the labour dispute to the Manager?

• (d) what is the discretion of the Minister to refer the matter to a Tribunal?

The 2021 Act

11 The recital to the 2021 Act sets out as follows:-

“Whereas it is expedient to consolidate the Trade Union Act 1965, the Labour Relations Act 1975 and the Labour Disputes Act 1992 into a single Act; to establish an Employment and Labour Code in respect of trade union, labour relations and employment related matters and to provide for general reforms in respect of such matters; to provide for civil penalties to be imposed for contraventions under the Employment and Labour Code; to provide for a single tribunal called the Employment and Labour Relations Tribunal to hear matters referred to it under the Employment and Labour Code; and to provide for related matters;”

12 It is described as a consolidation act but it also provides for some general reforms which are in fact amendments to certain provisions of the repealed acts. The fact that there are amendments is borne out by...