The Bermuda Industrial Union has failed in its bid to bar a judge from deciding on an important labour case.

BIU lawyer Delroy Duncan argued Assistant Justice Philip Storr did not have the authority to decide whether a Government-appointed tribunal was right to rule union members could form one bargaining unit and the non-union members another in a company.

That tribunal decision two years ago on BAS-Serco is being challenged by the company who say it leads to confusion.

In Supreme Court yesterday Mr. Duncan argued the tribunal was supreme. But after representations from BAS-Serco lawyer Alan Dunch Mr. Storr threw out the BIU's objection and continued with the hearing which both sides say will affect union/employer relations across the island.

Mr. Storr questioned Mr. Duncan about the situation at BAS-Serco after Mr. Duncan said that said the union could not represent those who were not in it.

Mr. Storr asked him if non-union members in the firm were bound by a collective bargaining agreement signed by the union.

"Were they entitled to disagree as they wished?"

Mr. Duncan said: "As a matter of law yes."

He said that agreement was not legally enforceable on non-union members. A majority of the workforce at BAS-Serco's fire-fighting department, which now numbers 18, had opted out of the union in February 2001. The issue sparked an island-wide strike last month.

The case continues today.