Police will take their long-running fight with Government over an element of their pay deal to Bermuda's highest court of appeal.

The Bermuda Police Association (BPA) successfully asked the Court of Appeal yesterday for the right to go to the Privy Council.

Last November, the Court of Appeal quashed part of the BPA's arbitration award by the Permanent Police Tribunal, which was made in June 2008.

Government challenged the award because it classed officers' 'combined allowance' <\!m> which amounts to ten percent of their pay <\!m> as a salary supplement. That would make it part of their pension.

Government does not want the allowance to be classified as salary and to be pensionable, as it would cost millions in extra pension payouts.

Instead, it wants it treated as an allowance only, which means it is not pensionable.

t argued during the Court of Appeal's judicial review of the matter that the tribunal was prohibited by law from making any award concerning pensions, so its decision was unlawful.

However, the Police argued that the allowance, which amounts to $6878.38 per year for a Police constable, has always been subject to payroll tax.

They said that as part of their total pay, it should be recognised as salary in order to be taken into account as part of their pension.

The battle over whether or not the allowance should be done away with, and that same sum of money made pensionable dates back at least ten years.

The Police have still not achieved their goal of having the allowance treated as such, due to the ongoing legal wrangle.

Court of Appeal judges Edward Zacca, Sir Austin Ward and Sir Robin Auld upheld Government's stance last November by a majority of two to one Justice Zacca disagreed with his colleagues.

Yesterday, he and his fellow judges on the current Court of Appeal panel <\!m> Sir Murray Stuart-Smith and Sir Anthony Evans agreed the case was of sufficient public importance that it should ultimately be decided by the Privy Council in London.

Asking for leave to appeal, BPA lawyer Alan Dunch told them it was "not right" that a minister who disagreed with an arbitration award should be able to "thwart" the statutory settlement process in order to avoid honouring the award.

He continued >"Something doesn't sit right with that, and it has the unfortunate consequence that the Bermuda Police Service simply have no confidence in the process moving forwards.

"They are out of contract right now. The agreement that arose as part of the arbitration award has expired. There are no negotiations going on because confidence has been lost."

Arguing that the case is of sufficient importance to go to the Island's highest court of appeal, Mr. Dunch added "We cannot have 400 policemen and women in this Country that are subject to a statutory scheme that determines their terms of employment being left out there, wondering whether or not in future they are going to get a fair shake."

He reminded the Court of Appeal judges that in November, they admonished Minister of Home Affairs David Burch to do the right thing by the Police and honour the spirit and intent of the pay award. But Mr. Dunch said that following subsequent meetings between the Police and Minister, it became clear that "he didn't, he hasn't, he won't".

The application to go to the Privy Council was resisted by Government lawyer Charles Richardson, who said the Court of Appeal made the correct decision in November. In a reference to Mr. Dunch, he said "I know my learned friend did not like the result, but I think the result is more of a political issue than a legal issue."

He argued there was no new and important issue of law at stake, which is a requirement before a case can go to the Privy Council.

However, Sir Anthony Evans commented:<\p>"Police have not been able to go ahead with any negotiations and that's a serious matter. We've been told that, rightly or wrongly, there's been an impasse and that is a serious matter."

After the hearing, Mr. Dunch said the process of going to the Privy Council is likely to take a year. He commented:<\p>"I<\p>think it would be fair to say the Bermuda Police Service is looking forward to the next chapter in this long saga."

Chief Inspector Darrin Simons, the BPA's lead negotiator, said: "We're happy we're going to the Privy Council. It's really do or die for us."

He explained that if the allowance is not done away with and then made pensionable, the Police fear that next time the Government increases their money, they will class it as a non-pensionable allowance.