Chaos will reign in the workplace if the Appeal Court rules in favour of the Bermuda Industrial Union in its recognition fight, says BAS-Serco lawyer Alan Dunch.

The union is arguing a Supreme Court judge was wrong to rule a tribunal erred by allowing staff at BAS-Serco to have two separate bargaining units ? one for BIU members and the other for non-members.

The union faced being squeezed out after staff said they no longer wanted to be recognised by the BIU.

The union has argued that only those in the union should be allowed to vote in a ballot to de-recognise the union.

However a summary of Serco's case obtained by said the consequence of the tribunal decision is that the union could retain its bargaining rights forever, rendering the whole concept of decertification redundant.

"So long as there is at least one union supporter in the workplace who will vote for union certification in respect of himself, the union may well remain certified in the workplace in respect of that tiny unit comprising one worker.

"That cannot be what was intended or even contemplated by the legislation.

"Such a finding will necessarily lead to chaos and fragmentation in the workplace, and, indeed, it did so in this case."

Earlier, the court heard about industrial action and friction between pro and anti-union groups. Mr. Dunch said a trade union represents the interests of "workers", not trade union members, whereas the BIU said a worker must belong to a trade union before that trade union can have negotiating rights in respect of that worker.

"Clearly, if a union becomes certified after a majority vote of the workers in the proposed bargaining unit in favour of certification, all of the workers in the unit are bound by the results of that vote and are thereafter represented by the union who acts as their collective bargaining agent."

Mr. Dunch said Assistant Justice Philip Storr had found the collective bargaining agreement showed the union had acted as agent for all workers, not just the members.

He said the tribunal correctly rejected the union's argument that non members cannot vote for cancellation after claiming it was "plainly inconsistent with the letter and spirit of the law".

The union have argued employees at Serco were split into two camps and had no community of interest.

However Mr. Dunch said: "There had always been union members in the unit who favoured union representation and there had always been non-union members in the unit who did not.

"The only difference was that in 1996, the union members formed the majority in the unit (and therefore the vote carried in favour of certification) whereas in 2001 the non-members formed the majority (and therefore wished for the union to be decertified).

"It is nonsensical (indeed, discriminatory) for the Tribunal to accept that there was sufficient coherency and community of interest amongst the workers during the period when the majority of workers were pro-union but that this community of interest somehow dissipated at the time that the majority view changed to being against union representation.

"It is important to note that the union does not dispute, for the purposes of certification, that each and every worker in the proposed bargaining unit is entitled to participate in the vote for certification, whether a union member or not.

"If the union's position that for the purposes of decertification, the bargaining unit can only include union members, then this would mean that the existing bargaining unit would, in every single case, have to be reconstituted along union lines at the time of decertification.

"That cannot be, and is not, what the legislation intended. Furthermore, if the union is right and only union members can vote on decertification, it would have been the easiest thing in the world for the legislation to have said that. It does not. It gives the voting rights to 'the workers'."

He said when the act was drawn up unions had tried to get a clause making only union members entitled to vote in decertification ballot but it had been defeated.

"One wonders why the union did not also complain about the certification process. If, on a certification ballot, the union were to lose, then surely it would argue the rights of its members were being unconstitutionally impeded by the vote of the majority.

"The union did not complain because it happened to win that particular vote.

"This appeal is really about protecting the union's position.

"However the authorities show that the constitution does not set out to protect the right of a group or organisation to further its own aims and objectives on behalf of the group.

"Rather, the constitution protects the rights of the individual, should he so choose, to belong to a union for the protection of his interests. Nothing in this case prevents an individual from so doing."