The Bermuda Industrial Union continued its attempt yesterday to overturn a Supreme Court ruling over union recognition for firefighters at the airport.

BIU lawyer Delroy Duncan has maintained that Acting Puisne Judge Phillip Storr was wrong to rule the Permanent Arbitration Tribunal had exceeded its power two years ago. At the time, several employees at Serco had decided they no longer wished to be represented by the BIU. As a result, the Tribunal allowed staff at BAS-Serco to have two separate bargaining units, one for BIU members and one for non-members.

However the courts then ruled that decision was "in excess of jurisdiction, wrong in law and irrational".

Court of Appeal Justice Sir James Astwood pointed out the Tribunal, made up of laypersons, made the decision to allow two bargaining units, without evidence of the need for such a move.

However Mr. Duncan said the Tribunal had proceeded on the basis that there was no dispute about the need for two bargaining units. "The only issue posed by the BIU was who gets to vote (whether or not to allow the BIU to continue to act on behalf of all employees of BAS-Serco), and the Tribunal voted against the BIU there," he said.

"If the BIU had said two bargaining units was inappropriate for the following reasons, then the Tribunal would have expected to hear evidence. But the point never arose.

"I am not here to argue if their decision was wrong," he said. "I am here to argue they were legally entitled to embark upon it."

Mr. Storr had ruled the Tribunal was out of its jurisdiction in making the decision, he said. "I submit that is wrong." The Tribunal was perfectly entitled to rule that two bargaining units (one for members of the BIU and one for non-members) were necessary, he said. "Why should those wanting (BIU representation) have that right taken away from them?"

Legislation permits the Labour Relations Officer or a Tribunal to determine the appropriate bargaining units by considering several factors, he said. Those factors included the consent of both parties (i.e. the employer and the union), the need for the bargaining unit to be viable in its representation of workers, the wishes of the affected parties (including all employees in question), and the objective of allowing employees who wish to join a trade union to join the union of their choice.

Court of Appeal Justice Philip Clough pointed out there was a "clearly established divergence of views", and added that "every time that happens you get a split. That's a material consideration to justify the decision.

"It's an awkward situation for all concerned."

Mr. Duncan argued the Supreme Court ruling was wrong because, among other reasons, the judge was incorrect to narrow the community of interest between the bargaining units.

The community of interests had also changed dramatically, he said, with more Serco workers deciding they no longer wanted to be represented by the BIU. The Tribunal had the right to consider that change when deciding the appropriateness of the bargaining units, he said. "It was wrong for the judge to say it couldn't.

"That could have changed the entire way the group was working, which is something the Tribunal had the authority to look at."

Mr. Duncan will finish up his appeal tomorrow morning, after which BAS-Serco lawyer Alan Dunch will begin his arguments.