Appeals Court justices retired yesterday to determine whether or not a Supreme Court ruling in a case involving the Bermuda Industrial Union and BAS-Serco was correct.

BIU lawyer Delroy Duncan has argued that Supreme Court Justice Philip Storr was wrong to rule that a tribunal erred by allowing staff at BAS-Serco to split into two bargaining units: one for members of the BIU and one for non-members.

The right to belong to a union is just as important as the right not to belong to one, he told the Appeals panel.

However, Serco lawyer Alan Dunch has countered that Justice Storr was correct in his ruling, saying the consequence of the tribunal decision is that the union could retain its bargaining rights forever, rendering the entire constitutional idea of decertification redundant.

That would cause chaos in the workplace, he has argued.

Under the theory that a bargaining unit is defined by a community of interest, Mr. Dunch said all the workers at Serco were in the same community of interest ? and therefore formed one bargaining unit.

As the majority of that bargaining unit no longer wished to be represented by the BIU, the union faced being squeezed out of Serco.

With a ballot pending to decide whether or not the union would continue to represent Serco employees, the BIU argued only union members should be allowed to vote on the decertification of the union.

"That cannot be what was intended or even contemplated by the legislation," Mr. Dunch has said. "Certification is not a right to be granted in perpetuity," he added in court yesterday.

"In Bermuda trade unions are effectively heard, indeed much more so than other countries." However there is a "compulsive, yet democratic" section in the Constitution which requires unions to be certified to act on behalf of a bargaining unit. "The state said unions should be deprived of the right to collectively bargain if the majority don't want to be represented by them.

"It is up to the state to decide how unions should be heard," said Mr. Dunch. "In Bermuda collective bargaining is not the only way a union can be heard."

Other ways include consultation, industrial action and participation in dispute settlements, he said.

"This appeal is really about protecting the union's position (at BAS-Serco)... But the Constitution doesn't protect the group, it protects the individual's right to belong to a union or not.

"The group can exercise only Constitutional rights on behalf of individual members. The rights of individuals can't be enlarged merely by the fact of association.

"How can there be any error? He (Justice Storr) got it right," said Mr. Dunch.

"(BIU president Derrick) Burgess can contend until the cows come home that they are only responsible for paid union members. But the law is if he applied for and obtains certification as a bargaining agent for a unit, his responsibility extends towards the totality of the unit, irrespective of whether or not 100 percent were union members, or 50 percent, or 36 percent."

Appeal judges Sir James Astwood, Gerald Nazareth and Philip Clough adjourned the case yesterday afternoon pending their judgment.