The Gazette 1981

APRIL 1981

GAZETTE

do not have a right to enter into negotiations. It must be pointed out, however, that the Constitution was not cited before the learned trial judge and consequently the decision may not be of much weight. 8 A more recent Supreme Court decision which might appear, prima facie, to be relevant in this context is Becton Dickinson & Co. Ltd. v. Lee? In that case, the first five defendants had agreed with the plaintiff company that, upon taking up employment with the plaintiff company, they would join either the ITGWU (in the case of the first defendant) or NEETU (in the case of the other four defendants). The sixth defendant was an official of AEF, to which union the first five defendants belonged, and the defendants sought to have AEF represent them in negotiations with the plaintiff company. When the latter refused to negotiate with the AEF the defendants went on strike and picketed the plaintiffs factory. The plaintiff sought an injunction restraining picketing. The injunction was granted by the High Court but the Supreme Court, by a three to two majority, 10 allowed an appeal taken against that decision. Walsh J., delivering the judgment of the majority, stated that a recognition dispute was a trade dispute within the meaning of S. 5 of the 1906 Act. 11 Here the defendants had agreed to be represented by ITGWU and NEETU. Nevertheless, they were entitled to go on strike, in breach of this clause, because the contract did not contain a "no-strike" clause. For present purposes, however, the most important passage in the judgment deals with the constitutional rights of the defendants. 12 Walsh J. pointed out that the constitutional issues did not fall to be decided, so that his remarks in this area are necessarily obiter. Nevertheless they do afford us a valu- able guideline as to the nature of freedom of association. The learned judge assumed that the term in the contract with regard to trade union membership was valid and went on to say that it was not necessary to express any opinion upon the question of how far or in what circumstances a person could contract out of a constitu- tional right. It would appear, however, that the constitu- tional right in question is not a right to be represented by one's union but rather the right to join the union of one's choice. Walsh J.'s judgment is not clear on this — in fact he does not specify the constitutional right to which he is referring — but Henchy J. does refer to a "worker's constitutionally-guaranteed right to choose whom he shall join in union with," 13 a right also referred to by counsel for the defendants. 14 It is submitted, therefore, that the Supreme Court recognised in this case that the right of association included the right to join the union of one's .choice. 13 That is not authority, however, for the slightly different proposition that the right of association includes a right to be represented by one's chosen association. Constitutional right to select negotiating unit This conclusion is supported by the recent High Court decision in Abbot and Whelan v ITGWU and the Southern Health Board. The facts of this case were as follows: in October 1979 the plaintiffs, who were employees of the defendant Board, resigned from the ITGWU and joined the ATGWU, being dissatisfied with their former union. The ensuing inter-union dispute was referred to the Disputes Committee of the Irish Congress of Trade Unions, and, on 30 April 1980 this body decided that the ATGWU should not organise or seek to represent

members concerned in the dispute and should actively encourage them to resume membership of the ITGWU. Meanwhile a trade dispute had arisen between a member of the ATGWU and the Southern Health Board. The defendant Board refused to negotiate with the ATGWU over this dispute because it feared that the ITGWU would retaliate by taking industrial action. As a result of the Board's refusal to negotiate with the ATGWU, the plaintiffs commenced industrial action and also brought proceedings in the High Court claiming various forms of relief. Chief of these was an order restraining the defendants from interfering with the exercise of the plain tiffs' right to join the trade union of their choice and to be represented by such union in the conduct of negotiations concerning wages and conditions of employment. They also sought declaratory orders to the effect that the de fcndant union was not entitled 'to represent the plaintifTs in negotiations with the Southern Health Board concerning wages and conditions of employment and that the Board was not entitled either to negotiate with the defendant union concerning the plaintiffs' terms of employment or to withhold recognition from the ATGWU. They sought a further order restraining the defendant union from negotiating on behalf of the plaintiffs with the Southern Health Board and from interfering with the conduct of negotiations by the ATGWU on behalf of its members. Lastly, they sought damages for conspiracy and infringement of constitutional rights. The plaintiffs argued that Clause 47 (d) ot the Consti- tution of Congress, which prevents unions from organ- ising workers in a negotiating unit if the majority or a sub- stantial proportion of those workers are already members of another union, was similar to provisions in Part 3 of

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