Beach row to a board of inquiry.

The Hon. Sir James Astwood's Supreme Court ruling is a blow to the hotel which fought to stop Government's move.

And it signals victory for Labour Minister the Hon. Irving Pearman.

Sir James cleared Mr. Pearman of exceeding his powers, and acting arbitrarily and "capriciously''.

He also sent out a clear message -- keep labour conflicts out of the courts.

"In my view, this court should not be seen to be putting any impediments in the way of efforts to try to solve industrial disputes in a peaceful manner.

"The parties should be encouraged to assist the Minister in bringing industrial harmony into the work-place.'' Hotel lawyer Mr. Alan Dunch said he would be considering an appeal.

Mr. Pearman had asked the Essential Industries Disputes Settlements Board to resolve three issues.

Firstly, did a collective bargaining agreement exist when the Bermuda Industrial Union asked Pink Beach to follow a grievance procedure over the firing of barman Mr. Perry Goater? Secondly, if there was an agreement, was the hotel guilty of an unfair industrial practice? And finally, was Mr. Goater's dismissal justified? Mr. Dunch had urged Sir James to prevent the referral of the first two points to the board.

He also wanted Sir James to ban the board from examining them.

Pending a possible Pink Beach appeal, Sir James agreed to stop the board sitting before May 15.

But he said the BIU or Government would be free to challenge this "temporary stay'' on proceedings.

Sir James awarded costs -- on a tax basis -- to Mr. Pearman, the board, and the BIU.

During last week's two day court hearing, Mr. Dunch had argued the board had already ruled on the first two points after a hearing involving Grotto Bay.

He said the board stated the collective agreement between the BIU and the Hotel Employers of Bermuda ended on February 24, 1991.

This ruling was final, and it defied the principle "litigation had finality'' to challenge it, said Mr. Dunch.

Mr. Dunch also argued Mr. Pearman could only refer issues reported to him.

But the union had not complained to him about the collective agreement or an unfair labour practice.

Mr. Dunch accused Mr. Pearman of acting arbitrarily and capriciously, and exceeding his jurisdiction.

But yesterday Sir James rejected his case, siding instead with BIU lawyer Mr.

Julian Hall and Mr. Philip Holder, attorney for Mr. Pearman and the board. Sir James said he believed Government legislation giving birth to the board was designed to resolve disputes speedily.

"When Parliament enacted the act and the other acts regulating labour relations in Bermuda, they must have had in mind that the unrest in the labour force of Bermuda is disrupting our society and, in particular, our business and the livelihood of all Bermudians.

"It would seem that they resolved to provide a machinery for the equitable resolution of the disputes.

"We now have a position where the union supports the stance of the Minister to refer the dispute to the board for settlement and the hotel opposes such reference on legal technicalities.

"This is not, in my view, in the best interest of industrial peace in our community.'' Sir James suggested there may be differences in the Grotto Bay and Pink Beach controversies.

New facts and evidence may emerge in the Pink Beach hearing, he said. "I do not know if any new facts are available. The parties to the present report to the Minister are not the same as in the Grotto Bay report.'' "In the instant case the parties are the Pink Beach Hotel and the union.

"Both Mr. Hall and Mr. Holder took the point that it was for the board to decide whether there was a collective bargaining agreement in force based on the facts presented to it and I tend to agree with this proposition.'' Sir James said he believed Mr. Pearman had been given "wide and extensive'' power in trying to resolve disputes.

"I am not convinced the Minister acted in excess of jurisdiction. In fact, I am now convinced that he did in fact do the correct thing and exercised his power correctly.

"He did not have to be concerned that maybe the board would take the view that it had previously decided that there was not in force at Grotto Bay a collective bargaining agreement.

"The board might reject the reference as it is entitled to do as having been previously decided.

"But it cannot be supported that, since the board may take this view, the Minister was acting in excess of jurisdiction in making the reference.'' Sir James, however, agreed the Supreme Court could "grant relief against ministerial action'' when the Minister had flouted natural justice, or acted arbitrarily, capriciously, and without jurisdiction.

This declaration was welcomed afterwards by Mr. Dunch, although he voiced disappointment at the general thrust of Sir James' ruling.

"I had hoped that he would put to rest for once and for all the whole question of the life or death of the previous collective agreement.''