The Bermuda Industrial Union is to appeal after losing a key Supreme Court ruling over union recognition for firefighters at Bermuda International Airport.

Acting Puisne Judge Phillip Storr ruled yesterday that the Permanent Arbitration Tribunal had exceeded its powers two years ago when it effectively allowed staff at BAS-Serco to have two separate bargaining units - one for BIU members and the other for non-members.

The dispute sparked an Island-wide strike in February when BIU members walked out in support of six fellow union members who claimed the company ignored their demands for a fresh pay deal.

The company said at the time it wanted to wait until the courts ruled on union recognition before entering into talks.

BAS-Serco challenged the tribunal decision and yesterday, Mr. Justice Storr ruled the decision taken by the tribunal - by majority of two to one - to effectively recognise two bargaining units exceeded of its jurisdiction and therefore invalid.

BIU lawyer Delroy Duncan announced immediately afterwards that the union will appeal the decision.

The dispute originates in 1996 when BIU members asked Serco's predecessor for union recognition as the Airport firefighting section had recognition.

A ballot was held and staff voted 12 to six to have the BIU represent them. The BIU was then recognised as representing staff in negotiations.

But in January, 2001, eight members of the fire department told the Labour Relations Officer that the "vast majority" of staff no longer wished to be represented by the BIU.

Serco then informed the Labour Relations Officer of the names of the 13 members who made up the bargaining unit.

The BIU then discovered that seven of those named wanting to decertify the BIU were non-union members. The union argued that since the non-members were not affected or represented by the union, they could not take part in a ballot to cancel recognition.

In March, 2001, the tribunal ruled that eight non-unionised fire officers should form "part of the reconstituted bargaining unit" for the ballot.

The ruling sparked a flurry of legal action as the company sought to get the courts to rule that that the tribunal decision was "in excess of jurisdiction, wrong in law and irrational".

The BIU sought a definition of "bargaining unit". And five BIU members at the airport firefighting section issued another summons to discover if the definition of bargaining unit contravened the Constitution by allowing non-union members to hinder the freedom of union members to belong to and be represented by a union.

Mr. Justice Storr wrote: "The tribunal's remit was to determine the appropriate bargaining unit.

"It had no evidence before it that there had been any change in the community of interest of the workers or the nature and scope of the duties of those workers.

"Having found that the 13 employees listed in Serco's letter of 21 January 2001 constituted the existing bargaining unit, there were no grounds open to the tribunal to investigate whether or not this unit should be altered. The purported exercise of determining an alternative `bargaining unit' was ultra vires (beyond their authority).

"Once a bargaining unit is determined by the Labour Relations Officer or by the tribunal, the majority vote of the members of that bargaining unit determines whether or not the union continues to be the bargaining agent for the whole of that bargaining unit.

"It therefore follows that the tribunal's conclusion that the non-union members could separately decertify, leaving the bargaining agreement in force in respect of the union members, is wrong in law.

"On signing of a collective bargaining unit, a union binds itself to act as the sole and exclusive collective bargaining agent for all the members of the bargaining unit, not solely the union members of such unit.

"Similarly, the employer binds itself to recognise the union as the sole agent for all these members. It cannot deal separately with the union on behalf of union members and with non-union members separately. There was no evidence before the tribunal that there was any `separate entity' maintained by the non-union members."