The Gazette 1981

GAZETTE

APRIL 1981

The Right of Workers to Choose their Collective Bargaining Agents by Gerry Whyte, B.C.L., Lecturer in Law, Trinity College, Dublin

to contemporary Irish industrial relations, it is submitted that a decision refusing to confer on workers a con- stitutional right to select their own bargaining agent for the purposes of collective bargaining would still alleviate some of the difficulties caused by multiplicity of unions. In the first place, an employer would not be obliged to consult with every union which has members among his workforce, in order to determine the conditions of employment of that workforce. This would greatly simplify the collective bargaining process for that employer. Secondly, conferring sole negotiation rights on specified unions would tend to make such unions more attractive to workers, thereby reducing the number of workers represented by the smaller, less-effective unions. Prior to the recent decision of McWilliam J. in Abbot and Whelan v. ITGWU and the Southern Health Board the legal position in Ireland on this point was not absolutely clear. Part II of the Trade Union Act, 1941, proceeds on the assumption that freedom of association does not include the right to negotiate. Before one can enter into negotiations with employers, a negotiating licence must be obtained - it is the licence, and not Article 40 (6) (1) (iii) therefore, which entitles a union to negotiate on behalf of its members. 5 This approach is also adopted by the Committee of Experts under the European Social Charter. In the second volume of their Conclusions they state that a distinction exists between the right to establish or to join a union, and the right of negotiation and collective action. 6 In FIRRWv Great Southern Railway Co. and Others 7 the plaintiff union sought an order by way of injunction, mandamus, or otherwise, to compel the defendant unions, who represented other workers of the defendant company, to enter into negotiations for a new agreement governing conditions of service of employees, or alter- natively, to compel the defendant company to enter into negotiations with the plaintiff union, without the concur- rence of the defendant unions. Gavan-Duffy J. granted the plaintiff union a declaration that it was a trade union representative of railway employees within the meaning of S. 55 of the Railways Act, 1924, but held that he was unable to grant it any relief entitling it to enter into negotiations with either the defendant unions or the defendant company. It would appear from this case, therefore, that unions

One of the most serious problems affecting the Irish trade union movement at present is that of multiplicity of unions. The existence of competition for members among unions can result in inter-union disputes which are both costly in themselves and damaging to the public image of the trade union movement, as, for example, the Ferenka dispute in 1978. Furthermore, many small unions cannot afford to provide those services to their members which one larger union, representing the same workers, would be in a position to provide. And, from the employers' point of view, it is infinitely preferable to be able to agree the terms and conditions of employment of a group of workers with one bargaining agent, than to have to approach a number of different unions in order to attain the same result. It is not surprising, therefore, that practically all post- Independence legislation dealing with trade union law in Ireland is concerned with the problem of multiplicity of unions. 1 The Courts have on a number of occasions, been confronted with attempts to tackle this problem and it must be noted that judicial decisions are not a little blame- worthy for the present situation. 2 A recent High Court decision, however, gives cause for some hope that a solution to this problem may be available which is accept- able to the Irish judiciary. This is the decision of McWilliam J. in Abbott and Whelan v ITGWU and the Southern Health Board? The central issue in this case was whether Article 40 (6) (1) (iii) of the Constitution, which guarantees freedom for the exercise of the right to form associations, also guarantees workers the right to choose their agents for the purpose of collective bargaining. The significance of this question for the present discussion is clear — if such a right is not protected by the Constitution, then, arguably, the problem of multiplicity of unions could be tackled along the lines adopted in the U.S.A., where a worker is free to associate with a union for political, social or even sentimental reasons, but cannot rely on that union to defend his economic interests if there is another certified or designated union, elected by the majority of the employees in the appropriate collective bargaining unit and respresenting the class of workers to which he belongs, at his workplace. 4 Even if this proposal proves to be unsuited

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