The Gazette 1981

APRIL 1981

GAZETTE

Comment • • • O Continued from page 51

4. See S. 9 (a) of the National Labour Relations Act, 1935, as amended by the Labour Management Relations Act, 1947. 5. The distinction between the right to associate and the right to negotiate can be seen quite clearly in S. 34 (5) of the 1941 Act, which provided that workmen were always free to join a trade union which did not carry on negotiations for fixing wages or other conditions of employment. The section is no longer in force because of the Supreme Court decision in NUR v Sullivan 11947) I.R. 77, which provided that Part 3 of the 1941 Act was unconstitutional, because it denied workmen their freedom of association. (It was not argued, however, that S. 34 (5) was, per se, unconstitutional.) 6. Conclusions II, at p. 22. For a similar view, see the speech of Lord Scarman in UKAPE v A CAS I 1980] 1 All E.R. 612. at p. 622. 7. (1942] Ir. Jur. Rep. 33, cited recently in CIE v Darby, High Court, unreported, 16 January 1980. 8. J. P. Casey, in an article in the 1972 Irish Jurist (n.s.) at p. 1, "Reform of Collective Bargaining Law", concludes, at pp. 7-8 thereof, that Article 40 (6) (1) (ii) would not give rise to a right to bargain collectively, because of the practical difficulties involved, though he did consider that the Oireachtas could create a statutory duty to negotiate. It must be pointed out, however, that this article was written prior to the Supreme Court decision in Becton Dickinson & Co. Ltd. v Lee [ 1973] I.R. 1. though cf. Labour Court Recommendations Nos. 381 and 2556, which appear to establish that if a union represents a size- able proportion of the workforce, then the employer has a moral, if not indeed a legal duty, to negotiate with that union,on terms and condi- tions of employment. Cf. also Labour Court Recommendations Nos. 5070 and 5338, where the Court recommended that the relevant unions be recognised by the employers for negotiating purposes, even though in the latter case the union represented only 7% of the work- force. 9. [1973] I.R. 1. See also de Blaghd, "Trade Union Law - 1973 Style." [1974] 108 ILTSJ 71. 10. ó Dálaigh C.J. and Butler J. concurred with the judgement of Walsh J.; Henchy and Fitzgerald JJ. dissented. 13. Ibid., at p. 48. Henchy J. was of opinion that the picketing in this case was intended to hinder the company in carrying out its part of the agreement with NEETU and ITGWU and therefore, because it was not merely for the purpose of peacefully obtaining or communi- cating information or of peacefully persuading any person to work or abstain from working, it lost the protection of the 1906 Act. For some of the legal difficulties with this view, see de Blaghd, op. cit., at pp. 109-109. 14. [1973] I.R. 1 at p. 14. 15. A right also protected under the European Convention on Human Rights. See the Commission Report on James and Others v U.K., adopted on 14 December 1979. 16. [1947] I.R. 77. 17. Unreported judgement, p. 7. 18. Ibid., pp. 10-11. 19. [1973] I.R. 97. 20. Unreported judgement, p. 14. 21. See Crowley v Ireland, unreported, High Court, 21 July 1978. 22. Quaere whether the Irish Transport can now represent the plaintiffs in collective bargaining with the Southern Health Board, even though the plaintiffs have terminated any agency relationship between themselves and the ITGWU. Cf. Singh v BSC [ 1974] I.R.L.R. 131. 23. Judgement of the Court delivered on 27 October 1975. 24. Judgement of the Court delibered on 6 February 1976. 25. Judgement of the Court delivered on 6 February 1976. 26. See Recommendations Nos. 381, 5070, 5338, 5962. 11. Ibid., at pp. 24-25. 12. Ibid., at pp. 40-41.

firms whom a majority of the bereaved and injured might choose to appoint. It is the pre-emption of this right to choose which has given rise to some justified criticism. What is not justified is the criticism offered by at least one public representative that a firm chosen by the Government to represent the bereaved would be influenced in the conduct of the case by the fact that they were being paid by the State. Such an allegation contrasts with the usual criticism that lawyers defending persons on criminal legal aid, strive too hard to defeat the prosecution. We have no doubt that following in the long tradition of independence of the legal profession, any lawyers appearing on behalf of the bereaved and injured, will work to the limits of their ability to assist the Tribunal in its work, regardless of their source of payment.

CONVEYANCING NOTE Family Home Protection Act

No piece of legislation in recent years has caused as much difficulty for the profession as the Family Home Protection Act, 1976. The difficulties presented by the drafting of the Act for the Conveyancers have been considerable and many practitioners have found themselves in considerable difficulties in adducing the necessary evidence to satisfy their colleagues that a particular transaction may not be void. The Conveyancing team running the Conveyancing Module in the Professional Course in the Society's Law School commissioned one of their number to prepare a "hand out" for the students which would, in addition to providing an explanation of the various aspects of the Act which impinge on conveyancing transactions, include some precedent declaration which might be considered appropriate. The "hand out" as prepared by Peter Polden and Rory O'Donnell seems to the Conveyancing Committee to be of such value that it should be circulated to the Profession and a copy of it is enclosed herewith. Practitioners will note that the "hand out" has been prepared so that it may readily be bound in the Law Society's Handbook. The Conveyancing Committee felt that while the style of the "hand out" was not perhaps as formal as might be expected in a document emanating from the Society and distributed to its members, the content was of such a high quality that any amendments designed to formalise the document would probably only result in a diminution of its value.

Supplement to Wylie's Irish Land Law Supplement available from PROFESSIONAL BOOKS LTD. or EDWARD TONER, Blackberry House, Delgany, Co. Wicklow. Telephone 874447 Price £6 Sterling

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