The Supreme Court has ruled that management of the Corporation of Hamilton cannot join the same collective bargaining agreement as non-management staff.

However, Puisne Judge Stephen Hellman ruled but they may form their own collective bargaining unit.

“Management employees owe a duty of loyalty to their employer in the sense that they are obligated to carry out their various job functions in a professional way,” Mr Justice Hellman said. “They must not put themselves in a position where a conflict of interest prevents them from doing so.

“That duty would not, in my judgment, be compromised by the mere fact of their organising collectively to negotiate better pay and conditions. Their obligation to their employer is contractual, not feudal.”

The matter began in 2011 after the BPSU negotiated with Earlston Francis to become the bargaining agent for the management and administrative staff at the Corporation of Hamilton.

On June 7 of that year, the BPSU wrote to the Department of Labour and Training to certify the agreement, stating 13 of 23 staff eligible to form the bargaining unit had joined the union.

Applications for membership from those 13 employees, of whom nine were managers, were enclosed.

A collective bargaining agreement was made between the Corporation and the BPSU in January of 2012, but following the election of a new board later that year the Corporation refused to renew the agreement or recognise the managers’ rights to be a part of the bargaining unit.

As a result, several managers launched a legal action against both the Corporation and the Attorney General.

The managers claimed section ten of the Bermuda Constitution, protection of freedom of assembly and association, should allow them to be a part of the collective bargaining agreement.

However, the Corporation argued that the Trade Union Act 1965 specifically defines ‘bargaining unit’ as excluding ‘management persons’.

In a judgement dated March 28, Mr Justice Hellman found in favour of the defendants, writing: “I accept that management can reasonably be excluded from the same bargaining unit as non-management employees, and hence that the plaintiffs’ constitutional rights have not been infringed.

“But the defendants have not shown that it is reasonably necessary to exclude all management persons from any bargaining unit whatsoever, eg one comprised solely of management employees in a union comprised solely of management employees, and irrespective of whether the person concerned is a senior manager or a middle manager.”

Mr Justice Hellman also noted that if the constitution protects the right to a collective bargaining agreement, than the definition of ‘bargaining unit’ in the legislation would be unconstitutional.

“I would have been minded to make a declaration to that effect and leave it at that, rather than striking down or attempting to rewrite the offending section, which would therefore have remained in force,” he wrote. “It would then have been for the Legislature to consider how best to amend it so as to pass constitutional muster.

“But as I am bound by authority to hold that the constitution does not protect the right to collective bargaining, these considerations do not arise.”

He said the Director of Workforce Development had erred in certifying a collective bargaining agreement by including management employees and ruled that the certification was void from the outset, but added: “The non-management employees may of course make a fresh application for certification, which I would expect to be unopposed.”