Burgess and Others v Stevedoring Services Ltd
| Jurisdiction | UK Non-devolved |
| Judge | Lord Hoffmann |
| Judgment Date | 15 July 2002 |
| Neutral Citation | [2002] UKPC 39 |
| Court | Privy Council |
| Docket Number | Appeal No. 37 of 2001 |
| Date | 15 July 2002 |
[2002] UKPC 39
Privy Council
Present at the hearing:-
Lord Bingham of Cornhill
Lord Steyn
Lord Hoffmann
Lord Scott of Foscote
Lord Rodger of Earlsferry
[Delivered by Lord Hoffmann]
Stevedoring Services Ltd ("SSL") carries on business in the port of Hamilton. Its employees are represented by the Bermuda Industrial Union, a registered trade union. In September 1998 there was a dispute about overtime pay. Mediation by the Labour Relations Officer was unsuccessful. On 11 September Mr Furbert, vice-president of the union, notified Mr Lines, SSL's operations manager, that overtime would be banned. SSL claimed that this action was unlawful. On 16 September it commenced proceedings against Mr Derrick Burgess, president of the union, Mr Furbert, Mr Sinclair Smith and Mr Orin Simmons "sued on their own behalf and on behalf of the members of the Portworkers' Division of the Bermuda Industrial Union". On the same day it applied ex parte to Bell J (Ag) for an injunction which was granted in the following terms:
"1. … restraining each of the defendants and each of the members of the Portworkers' Division of the BIU from contravening the Labour Relations Act 1975 by means of irregular industrial action short of a strike, namely the banning of overtime at the docks of Hamilton.
2. … liberty to apply to discharge or vary this order on 48 hours' notice …"
Just over a week later the dispute was settled. A letter dated 25 September 1998, recording the terms of settlement, was signed on behalf of SSL and the Union and sent to the Minister of Labour. But no application was made to discharge the injunction.
There were fresh disputes during 1999 and from time to time the union imposed an overtime ban. No reference appears to have been made to the injunction. But on 31 January 2000 the union wrote to SSL saying that overtime would be banned from 4 February on account of what were described as "unresolved issues" These were unrelated to the 1998 dispute.
The reaction of SSL was to apply ex parte to Wade-Miller J. for an order which she granted in the following terms:
"1. That Messrs Derrick Burgess, Christopher Furbert and Sinclair Smith do attend before one of Her Majesty's judges…to show cause as to why they ought not to be punished for their contempt of court in disobeying the order of this honourable court dated 16th September 1998.
2. That, in the interim, each and every employee of the plaintiff who is a member of the Portworkers' Division of the Bermuda Industrial Union is to abide by the terms of the injunction granted by this court on 16th September 1998 and is not to contravene the provisions of the Labour Relations Act 1975 by engaging in irregular industrial action short of a strike [through] complying with the overtime ban put into effect by the Bermuda Industrial Union on 4th February 2000.
3. That any employee of the plaintiff who does engage in such irregular industrial action as aforesaid shall also attend before this court along with Messrs Burgess, Furbert and Smith on the date and at the time appointed in 1 above to similarly show cause as to why he ought not to be punished for his contempt of court."
The defendants responded with a summons to discharge the 1998 injunction which came before Meerabux J on 16 March 2000. Meanwhile, the notice of motion to commit for contempt was adjourned pending the decision on the injunction. On 6 April 2000 the judge dismissed the summons and affirmed the injunction. An appeal to the Court of Appeal (Astwood P, Cons and Clough JJA) was dismissed on 30 November 2000. The defendants appeal to Her Majesty in Council.
The overtime ban was alleged to be "irregular industrial action short of a strike" within the meaning of the Labour Relations Act 1975. Their Lordships will for convenience call it "industrial action". The Act defines it as:
"any concerted course of conduct (other than a strike) which, in contemplation or furtherance of a labour dispute -
(a) is carried on by a group of workmen with the intention of preventing, reducing or otherwise interfering with the production of goods or the provision of services; and
(b) in the case of some or all of them, is carried on in breach of their contracts of employment or otherwise in breach of their terms and conditions of service."
By section 9, industrial action in an "essential service" is unlawful except in circumstances which both sides accept do not apply. Essential services are specified in the First Schedule and include –
"6. Port and dock services including pilotage, tug and line boat operation (not connected with cruise ships)."
Before the judge and in the Court of Appeal it was conceded by the appellants that SSL were providing port and dock services. But Mr Newman QC, who appeared for the appellants before the Board, asked leave to withdraw that concession on the ground that "port and dock services" did not include loading and unloading. In support of this submission, he drew attention to the fact that certain kinds of loading or unloading are mentioned elsewhere in the Schedule:
"11. The loading and unloading of mail, medical supplies, foodstuffs, cattle and chicken feed and all supplies needed to maintain any essential service specified herein and the transport of such goods to their proper destination."
Mr Newman submitted that "port and dock services" must be construed ejusdem generis with pilotage, tug and line boat operations, which were all concerned with moving the vessel rather than its cargo. Loading and unloading fell under a different heading and were essential services only when they involved the goods mentioned in paragraph 11. He invited the Board to remit the matter to the Bermudian court for a finding as to the nature of the goods which required to be loaded or unloaded at the relevant time.
Their Lordships do not accept this submission. Stevedoring services are the kind of services one would expect to be provided in a port and therefore fall within the desciption of "port and dock services". The fact that they are also said to "include" other things shows that the draftsman, for one reason or another, had some doubt about whether the expression would include pilotage, tugs and so on and wanted to make it clear that it did. But the inclusion of other things cannot narrow the ordinary meaning of "port and dock services". As for paragraph 11, it may well overlap with paragraph 6 but is in some respects wider (covering, for example, loading or unloading for the purpose of carriage of goods by road) and in some respects narrower (covering only loading and unloading and not other port activities.) Their Lordships see no reason to treat the paragraphs (or any of the paragraphs in the Schedule) as mutually exclusive.
The question then is whether the overtime ban fell within the description of industrial action. It was concerted action in furtherance of a labour dispute and was undoubtedly done with the intention of preventing reducing or otherwise interfering with the provision of stevedoring services by SSL. Paragraph (a) of the definition was therefore satisfied. The question is whether it was in breach of the contracts of employment or terms and conditions of service of some or all of the participants.
For this purpose it is necessary first to inquire into what the terms and conditions of service of the port workers were. According to the evidence, they had no written contracts of employment. But there was a collective agreement between SSL and the union, which dealt with such matters as wages and overtime. It is accepted that the workers were engaged upon the terms of the collective agreement so far as they were capable of application to individuals. To that extent, the terms of the collective agreement were impliedly incorporated as the terms and conditions of service of each employee. The collective agreement does not expressly identify which terms are to be regarded as incorporated. That must be inferred from their contents.
The collective agreement deals with overtime in article 23.1 and paragraph 5 of the Schedule. Broadly speaking, article 23 is concerned with the union and paragraph 5 with the employees:
" Article 23
CONDITIONS OF WORK
1.(a) When vessels are in port, they will be worked in accordance with the terms of this Agreement and as the Company is directed by the vessel's accredited Agent.
(b) The Union shall be informed on the day prior to a vessel's arrival if overtime is required or not. Once that declaration has been made it can only be altered with the consent of the Union.
(c) The Union undertakes to provide labour as necessary, to make up gangs or work units.
(d) Should the Union not wish to work any specific overtime period they will give the Employer five working days notice, in writing, stating the reason that overtime is unavailable for that designated period.
(e) In unforeseen circumstances and with mutual agreement overtime may be suspended without the stipulated notice period."
" SCHEDULE
5. Overtime
1. Double time shall be between the hours of 1730 hours and 0800 hours, Monday through Friday, and 1730 hours Friday to 0800 Monday and on Public Holidays.
2. Work will cease at 1600 hours on Saturdays, unless the vessel is being worked through to finish for sailing that night or next day.
3. It is and has been the custom of the Port that work continue on a twenty-four hour basis when necessary to properly handle the vessels and cargoes. The physical facilities of the Ports and the schedules of the vessels frequently make it necessary to follow the practice of working the vessels until 2200 hours or after. When, by mutual agreement between the...
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