The Court of Appeal has ruled against the Bermuda Industrial Union on the issue of mandatory overtime as required by docks managers Stevedoring Services.

But the three judges have scaled back the award of costs to Stevedoring Services saying including "indemnity costs'' were not appropriate for Puisne Justice Vincent Meerabux to award.

BIU President Derrick Burgess and the union's lawyer Delroy Duncan will be asking the Court of Appeal to give them permission to go to appeal to the Privy Council. Today is the last day the full court of President Sir James Astwood, Sir Derrek Cons, and Phillip Clough will be sitting.

It is understood the grounds upon which the BIU will be appealing concern whether the collective bargaining agreement is contradictory and the worker's obligation. Also of concern to the union is whether yesterday's decision obligates all workers to work as needed and on an on-going basis when required by an employer.

The decision upholds Mr. Justice Meerabux's original decision.

BIU suffers Court of Appeal setback This stated that Mr. Burgess, first vice president Chris Furbert, and former Portworkers Division president Sinclair Smith, as representatives of the union, broke a court injunction when they launched an overtime ban.

The injunction halted general bans on overtime as per the agreement on the Hamilton Docks.

In April Mr. Burgess called the Mr. Justice Meerabux's decision "the most repressive'' against workers' rights and affected all workers, not just dock workers or unionists.

Yesterday, after the judgment was handed out, Mr. Burgess said: "Clearly this is very unfortunate for the workers of Bermuda at this point.

"This is a dark day for Bermuda with this unfortunate judgment from the Court,'' he continued. "One thing we have to realise is this is a very bad precedent for the workers.

"What we're perceiving is that we have very little say with regard to overtime. I'll be taking instructions from our general counsel who I'm sure will support me in taking this to the Privy Council.'' Stevedoring Services' lawyer Alan Dunch said: "We're very happy with the result. We feel somewhat vindicated in the sense that it has always been our position that this was not a case about compulsory overtime.

"Rather, it is a case about whether or not a group of men engaged a course of conduct which amounted to a breach of their employment. And it was therefore illegal under the Labour Relations Act.'' Mr. Dunch continued: "Their Lordships have delivered a very strong judgment which clearly indicates that the issue of compulsory overtime plays no part whatsoever in this case.

"Rather this case is purely about contractual responsibilities,'' Mr. Dunch added.

He explained that the Court of Appeal found Mr. Meerabux was right when concluding that "if you elect to work on the docks, you know that part of your job will involve working overtime from time to time when required''.

Mr. Dunch concluded: "If that is unacceptable to you then the simple answer is don't take a job on the docks.'' Sir James wrote: "We wish to make it quite clear that there is no question of compulsion... Reference to compulsion is emotive and misleading.

"Neither by the (Collective) Agreement nor by any law of the land is a member of the Union compelled to work for the Respondents (Stevedoring Services),'' the judgment continued. "If the member does so, he does so of his own free will.'' By becoming a dock worker, Sir James explained, a person is "automatically bound'' by the Agreement and therefore agrees to its terms.

"This is purely a contractual responsibility and as the work is an essential service the members are covered by the provisions of the act, and if they breach its provisions, they become subject to the sanctions imposed under the act.'' As the Agreement provides for "certain circumstances'' in which a five day notice can be given, reliance on those provisions to show the overtime ban was not an "irregular industrial action short of a strike'' is "misplaced'', Sir James wrote. "The very words of the proviso itself limit its application to specific, designated periods of overtime,'' he concluded. "It is not apt to support a general ban.'' He agreed with Mr. Justice Meerabux that the ban was irregular action designed to "frustrate the very commercial object for which the contracts of employment were made''. Sir James concluded: "We have not been convinced that the findings of the judge are in any way wrong.

"There was overwhelming evidence before him from which he could reach his findings and conclusions,'' he continued. "The judge dismissed the application to discharge the injunction and we accept that he was right to do so.

"We are not convinced either that the injunction should not continue. Having considered the grounds of appeal we find no merit in them and we dismiss the appeal.'' Concerning costs, the Court decided Mr. Justice Meerabux was "plainly wrong'' in ordering an indemnity was not an "appropriate basis for an order of these courts'' in the case.

Sir Derek explained Mr. Justice Meerabux "seemed to fall very much into the ambit'' of taking into account the perception of the dock workers being in contempt of court.

While the Mr. Justice Meerabux explained that he felt an indemnity should be awarded "unfortunately, he didn't explicitly say what those `ample materials' were,'' Sir Derek explained.

Earlier, while Mr. Dunch was explaining why costs should be awarded to Stevedoring Services, Sir James had said: "I think what is bothering me and my colleagues is the indemnity aspect.'' Justice Clough was also able to get Mr. Dunch to concede that the indemnity was the most "pungent'' aspect of Mr. Justice Meerabux's decision but Mr.

Dunch would not accept that it was "draconian''.

Mr. Dunch had argued the case was the result of the "exclusive'' conduct of the Union and the law had always been on the side of Stevedoring Services.

"He had before him a party who having lost its case he was entitled to remind himself that the actions were in breach of an order of the court,'' Mr. Dunch said of Mr. Justice Meerabux. "Had the union discharged the overtime ban and agreed to work as usual, it might have been a different situation.

"We can't lose sight of the fact that the union defied the injunction on a number of occasions,'' he said to mumbles of derision from dock workers -- who had to be warned by Sir James. "It was these acts of defiance that lead Stevedoring Services to have to come back into these courts.'' Mr. Dunch concluded: "The issue was, was he so completely off base? He was the man who had the right to assess what happened before him.'' When asked about Mr. Dunch's contention that the union continued the ban for some days after the injunction was filed, Mr. Burgess said this was "totally untrue''. He added: "We have been working since February. From the day that Justice Wade-Miller said to do the overtime we've been doing it. We never stopped.'' The Court of Appeal reconvenes at 10 a.m.

Blow: BIU president Derrick Burgess yesterday.