The Gazette 1981

GAZETTE

APRIL 1981

the Trade Union Act, 1941, which had been declared to be unconstitutional by the Supreme Court in NUR v Sullivan. 16 They further contended that the constitutional right of a citizen under Article 40 (6) (1) (iii) extended to protect the benefits of joining a union and that the principal benefit of so joining was to be able to negotiate with an employer through the expertise and strength of the union. McWilliam J., expressing a view rejected the view that workers had a constitutional right to select their negotiating unit. In a remark which, on the facts of the case, may be obiter, he said, ". . . the suggestion in the pleadings that there is a constitutional right to be represented by a union in the conduct of negotiations with employers has not been pursued and, in my opinion, could not be sustained. There is no duty placed on any employer to negotiate with any particular citizen or body of citizens." 17 Nor would the citizen's right to dissociate encompass such a right, the learned Judge stating that to hold that the Southern Health Board must agree to negotiate with the ATGWU in order to afford the plaintiffs the full benefits of the exercise of their constitutional right to "join" a union, would be a "great extension of the principle that a citizen must not be coerced into joining an association or union against his will." 18 The learned judge pointed out that, in the earlier decision of Murphy v Stewart, 19 neither the High Court nor the Supreme Court felt it necessary to consider the constitutionality of Clause 47 (d), and under the similar circumstances of the instant case, he did not feel obliged to do so either. He did state, that, " . . . there may be a distinction between placing a statutory embargo upon any person doing or refraining from doing something and a voluntary agreement between parties that they will or will not do something which they are entitled to do or not to do at their discretion." 20 Freedom of Association under the European Convention It is respectfully submitted, however, that if a citizen's constitutional rights are infringed the source of infringe- ment is irrelevant; and the Courts will restrain inter- ference with the exercise of such rights in all cases, except where the exercise of one's constitutional rights results in the violation of the constitutional rights of another. 21 McWilliam J. concluded on this point that the refusal of the Board to negotiate with the ATGWU did not amount to coercion on the plaintiffs to forego their constitutional rights. With regard to the refusal of the ITGWU to consent to the transfer of their former member to the ATGWU, the learned judge held that it followed from the decision in Murphy v Stewart that such refusal did not infringe the constitutional rights of the plaintiffs, even where, as in the present case, the transferee union had received the workers into membership. This last factor constituted an essential difference between the instant case and Murphy v Stewart, and consequently the learned judge felt con- strained to consider the relevance of the absence of the facility to negotiate on the plaintiffs position. He con- cluded, however, that ATGWU had as little right as the ITGWU to negotiate with the Board and that there was nothing unconstitutional in one union endeavouring to obtain better terms for its members than those obtained by any other union, whether by obtaining special negotia-

tion rights or otherwise. Consequently the plaintiffs' claim failed. 22 It would appear, therefore, that Article 40 (6) (1) (iii) does not guarantee workers the right to be represented by the union of their choice. Before leaving this point, however, one must bear in mind Ireland's obligations incurred under the European Convention on Human Rights. From the decisions of the Court of Human Rights in National Belgian Police Union v Belgium, 23 Swedish Engine Drivers Union v Sweden 24 and Schimdt and Dahlstrom v Sweden, 25 it is clear that freedom of association under the Convention includes the right to have one's union make representations on one's behalf, though not the right to compel employers to negotiate with that union. Therefore, any provision in Irish law which would entitle a citizen to join a union but then deny that union the right to represent him, would appear to be in violation of the European Convention. However, the right to represent one's members cannot be regarded as a blanket right to represent them in all situations - it may be that a distinction could be drawn between representing members in relation to individual grievances, which would be protected by Article 11 of the European Convention, and representing them in negotia- tions on terms and conditions of employment which might not be so protected, but rather be subject to an agree- ment between employers and unions similar to that found in the case of Becton Dickinson & Co. Ltd. v Lee. Such a distinction has been recognised by the Labour Court in a number of recommendations. 26 In conclusion, it is submitted that there is no authority supporting the proposition that the constitutional right of freedom of association includes the right to select one's negotiating unit. Therefore it would appear to be open to employers and trade unions to agree that the employer would only negotiate with certain designated unions on terms and conditions of employment. Individual workers do have the right to join the union of their choice and may even insist that such union represent them in relation to their own individual grievances but a case can certainly be made for denying workers the right to insist on their chosen union participating in collective agreements with management, if to do so would violate a previous agreement between unions and management designating specific unions as the sole negotiating units for that purpose. This would appear to leave the way open for both sides of industry to compel workers to accept specified unions as their representatives for collective bargaining purposes and, to the extent that this goes some of the way towards dealing with the problem of multiplicity of unions, then the decision in A boot and Whelan v ITGWU and the Southern Health Board is to be welcomed. FOOTNOTES 1. The exception being the Trade Union Act, 1935, which amends S. 7 of the Trade Unions Act, 1871, in order to permit unions to own property in excess of one acre of land. 2. See "Trade Unions and the Future" by Professor M. P. Fogarty, in Trade Unions and Change in Irish Society ( 1980), where, at p. 143 thereof, the author refers to the Supreme Court decision in NUR v Sullivan 119471 I.R. 77, as a "disaster where after effects are only too visible now". 3. Unreported, High Court, 2 December 1980.

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