The lawyer acting for the Bermuda Industrial Union argued yesterday in the Court of Appeal that the right not to belong to a trade union was just as important as the right to belong to one.

Delroy Duncan was speaking as the BIU launched its bid to overturn a Supreme Court ruling over union recognition for firefighters at the airport yesterday.

BIU lawyer Delroy Duncan said Acting Puisne Judge Phillip Storr had been wrong to rule the Permanent Arbitration Tribunal had exceeded its powers two years ago when it 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.

Mr. Duncan said Mr. Storr had acted outside his power in ruling the tribunal had been wrong.

“The tribunal is allowed to get it wrong provided it remains in its jurisdiction,” said Mr. Duncan, although he said he believed the tribunal had got it right.

Mr. Duncan cited the Constitution as upholding the right of freedom of association for individuals.

He said: “The union did not represent non-union members who did not allow them to negotiate on their behalf.” He said the union would only negotiate for those outside it if there was an agency shop agreement, but that was not in place.

Mr. Duncan argued: “The right not to belong to a trade union is as important as the right to belong to one.”

The court heard that non-union workers were negotiating their own deals and avoiding meetings during disputes with Serco management.

“There is no act prohibiting the dividing of the bargaining unit, nothing which suggests it's an inappropriate way for the tribunal to arrive at its decision,” said Mr. Duncan.

The dispute originated 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 as 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 effectively ruled that two bargaining units could be set up and the company then sought to get the courts to rule that 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.

In court yesterday, Mr. Duncan spoke of friction between union members on one side and and non-union members and management on the other.

At one stage non-union members agreed to a new shift system while unionised workers refused to work it. He said: “The friction was quite palpable.”

This meant there was little community of interests between the two sets of workers, argued Mr. Duncan, but the union had the right to represent its members.

Only if there was an agency shop agreement would the union be obliged to represent non-union workers.

But Serco's lawyer Alan Dunch said the union had earlier claimed to represent all the workers.

Mr. Duncan said non-unionised workers would have to negotiate their own deal but Court of Appeal Justice Gerald Nazareth said this would be unworkable.

Mr. Duncan said it would be as if there was no union for those workers while Mr. Worrell replied: “I would have thought trade unions would be horrified about this. This is what, over the years, they have fought to get away from.”

He said he was amazed to hear this argument.

Mr. Duncan said the paramount issue was those who wanted to be represented by a union should have that right.

“If there is no community of interests the labour relations officer can determine there are two units.”

And legislation already existed which obliged the employer to pay the same for the same work said Mr. Duncan.

The case continues today before appeal judges Sir James Astwood, Philip Clough and Mr. Nazareth.