The Gazette 1973

fendant union stating that in view of the fact that the circumstances surrounding Motor Manufacturers Ltd. case had now altered they trusted it would be in order to have these transfers to the I.T.G.W.U. effected. The defendant union replied on November 23rd stating that in view of the fact that the I.T.G.W.U. had notified Congress of its acceptance of the Disputes' Committee's findings, no member of their union em- ployed by Motor Manufacturers would be released to join any other union. No repudiation of Disputes Committee Mr. Justice Walsh said the I.T.G.W.U. did not re- pudiate its acceptancc of the findings of the Disputes' Committee and it was quite clear that it would not accept these men into membership unless the defendant union gave its consent or was held by the Courts to be wrongfully with-holding consent. The constitutional right relied on by Mr. Murphy was set out in Article 40, section 6, subsection 1 (iii) which was the right of citizens to form associations and unions. It was claimed that the refusal of the defendant union to consent to Mr. Murphy joining the other union was an unconstitutional interference with his guaranteed rights and amounted to coercion in that, without such consent, if the I.T.G.W.U. were to accept him they would be liable to expulsion from Congress because of a breach of the Constitution of Congress. It was submitted on behalf of Mr. Murphy that the defendant union was in effect able to achieve what part 3 of the Trade Union Act, 1941, was held to be unable to achieve—to compel him to remain a member of their union. Mr. Justice Walsh said he agreed with Murnaghan J. who had held that before it could be established that a person might agree to surrender or waive a right guaranteed by the Constitution it would have to be shown that he had a clear knowledge of what he was doing and with that knowledge deliberately and freely decided to make such surrender or waiver. On the facts in this case it was abundantly clear that no such situation had ever been brought to the notice of Mr. Murphy. No constitutional right to choose union Mr. Justice Walsh said that in the ordinary sense there was no constitutional right to join the union of one's choice. The constitutional guarantee was the guarantee to form associations or unions, but in ordinary circumstances before a person could join a union or association already in existence he must be entitled to do so either by law or by the rules of that association or union, or by the consent of its members. Mr. Justice Walsh went on : "In my view, the present action is misconceived and the appeal should be allowed." The I.T.G.W.U., he said, was obviously quite willing to accept Mr. Murphy into membership—but only provided they obtained the consent of the de- fendant union. In taking the men into their union originally without that consent, the I.T.G.W.U. was exercising a right which they were free to exercise and if such exercise constituted a breach of the terms of their affiliation to the Congress, it was for the I.T.G.W.U. to decide whether they would accept the membership of Mr. Murphy and jeopardise their affiliation with the Con- gress, or elect to value their affiliation greater than their desire to accept Mr. Murphy into membership. 29

transfer to the Irish Transport and General Workers' Union was an infringement of his constitutional rights. Mr. Justice Walsh, who delivered the unanimous judgment, said the union was a British-based one but was the holder of a negotiation licence granted under Part II of the Trade Union Act, 1941, and affiliated to the Irish Congress of Trade Unions. Mr. Murphy became a member of the National Union of Vehicle Builders in 1958 when employed in Lincoln and Nolans' motor assembly business. He afterwards worked for Motor Manufacturers' Ltd., at Naas Road, Dublin, and the N.U.V.B. was the only one catering for workers in that industry employed by Motor Manu- facturers Ltd. In March or April 1970, Mr. Murphy and a number of fellow-workers applied for membership of the Marine Port and General Workers' Union being dissatisfied with the N.U.V.B. for reasons which did not affect the decision in this appeal. On inquiry, the Marine Port and General Workers' Union was told by the N.U.V.B. that there was an objection to the transfer on the grounds that they catered sufficiently for Mr. Murphy and his fellow- workers but if there was any bona fide reason why the men should wish to join the other union they would be prepared to have another look at the matter. In the result, the M.P.G.W.U. did not accept the application of Mr. Murphy and the others for membership. Mr. Justice Walsh said that in May, 1970, Mr. Murphy and 144 fellow-workers applied to the I.T.G.W.U. for membership. This union notified the N.U.V.B., who replied advising that they were objecting to their members being accepted into the I.T.G.W.U. pointing out that these members had already been declined membership of the Marine Port and General Workers' Union. After further correspondence the applicants said the reason they wanted to transfer was becausc they wished to become members of an Irish-based trade union. This was not accepted as a valid reason by the N.U.V.B. who continued to object. On June 16th, 1970, the general secretary of the I.T.G.W.U. wrote to the defendant union stating that it was proposed to accept the applications on the grounds that no reasonable grounds had been put for- ward to sustain the defendant union's objection. The Irish organiser of the latter union then asked the execu- tive council of the Irish Congress of Trade Unions to intervene and the matter was ultimately referred to its disputes committee which came to the conclusion that the decision of the I.T.G.W.U. to enrol the men against the objection of the N.U.V.B. was "contrary to good trade union practice." They recommended that the men be transferred back to the defendant union. The disputes' committee also noted that from the evidence available the acceptance of transfers in any circumstances in the motor assembly industry, without consent, did not appear to have been the practice. It was clear however, that the disputes' committee was also of opinion that the requirements of good trade union practice was in itself sufficient to give a decision in favour of the defendant union. They also recommended that the latter union should waive any question of imposing fines or disciplinary action. In the result the I.T.G.W.U. accepted this finding and transferred the members back to the de- fendant union. On November 20th, 1970, the general secretary of the I.T.G.W.U. wrote to the Irish organiser of the de-