58 / 262
Callaghan had committed a breach of contract, he is
protected under Section 3 of the 1906 Act because he
was not a party to these proceedings. A contract is not
discharged by a unilateral breach, unless the other party
chooses to terminate it on that ground. He concurs with
Lord Denning who in
Morgan v. Fry
(1968) 2 Q.B.
considered Rookes v. Barnard (1963) 1 Q.B. and the
more recent English decisions, and concluded that the
law was that, if the strike notice given is not shorter
than the legal period for the termination of the con-
tract itself, then it is not unlawful : if the strike (this
can arise expressly or impliedly) does take place, the
contract of employment is suspended during the strike,
but revives when the strike is over. In this case, the
contract of employment did not contain a no-strike
clause. The plaintiff's contention was that it was an
implied term that the workers would not take strike
action in support of their claim and that it was a
breach of contract to do so : this cannot be sustained.
Walsh J.
does not accept that, by agreeing to any
particular condition, save perhaps an express strike
condition, they agree not to raise a condition as to a
trade dispute. The notice of strike action in this case
was adequate.
Fitzgerald J.,
in delivering one of the minority judg-
ments, emphasised that the belief that a right to pro-
test justified a right to picket, was unjustified. He held
in the present case that the purpose of the picket was
to coerce the plaintiff company to break their contract
with the two unions with whom they had an agreement.
This picket was consequently illegal, and an injunction
had been rightfully granted by
McLoughlin J.
(4) Does the principle of inter-union rivalry apply?
Walsh J.,
in the majority judgment, stated that the
plaintiff contended that the real issue in dispute was
simply one of the inter-union rivalry, and could not
consequently be a trade dispute within the Act of 1906,
and relied on
Stratford v. Lindley
(1965) A.G. But the
dictum of Lord Pearce in that case, at page 334, is
applicable here : "When a union makes a genuine claim
on the employer for bargaining status with a view to
regulating or improving the conditions or pay of their
workmen, and the employers reject the claim, a trade
dispute is in contemplation, even though no active
dispute has arisen.
Henchy J.
in delivering the principal minority judg-
ment stated that the principles enunciated by the House
of Lords in
Stratford v. Lindley
(1965) A.G. applied
fully in this case.
(5) Is picketing to gain recognition unconstitutional?
Walsh J.,
in delivering the majority judgment, held
that though
McLoughlin J.
had held that the plaintiff
company had not been guilty of any breach of the
constitutional rights of the defendants because they had
not exercised any coercion, it was not necessary to decide
the constitutional issue in this case. It was not necessary
to express an opinion on how far or in what circum-
stances a person can contract out of a constitutional
right.
Henchy J.,
in delivering the principal minority judg-
ment, stated that the case of
Educational Co. of Ireland
v. Fitzpatrick
(No. 2) (1961) I.R. was not applicable
here, as it decided that when workers are sought to
be compelled by means of a picket regardless of their
wishes, to join a particular union, such compulsion
amounts to a denial of the worker's constitutionally
guaranteed right to choose whom he shall join in union
with. This case, however, is one of contract, and there
is no compulsion or coercion, and no interference with
a citizen's free choice here whether he remains a mem-
ber of one union or joins the other. Accordingly Article
40, Clause 6 (1) of the Constitution which guarantees
the right of citizens to form unions, is no impediment
to providing by contract that membership of a particular
union is to be a prerequisite for a particular employ-
ment. Accordingly the majority of the Supreme Court
(O Dalaigh C.J., Walsh and Butler J J .)
per
Walsh J.
allowed the appeal, and disallowed the injunction. The
minority of the Court
(Fitzgerald and Henchy J J .)
would have enforced the perpetual injunction against
the defendants granted by
McLoughlin J.
[Becton Dickinson & Co. Ltd. v. Lee (No. 2); Sup-
reme Court; Unreported; 19 December 1972]
High Court finds student has no right to vote: age
qualification conditional on person being registered
according to law.
Mr. Justice Kenny,
in a judgment delivered in the
High Court in Dublin yesterday, held that David
Reynolds, a twenty-year-old student, of Granitefield,
Dun Laoghaire, has not got a constitutional right to
vote in the General Election on FEbruary 28.
He found, however, that Mr. Reynolds had succeeded
in establishing that Section 5 (1) of the Electoral Act,
1963, insofar as it referred to age 21, was repugnant to
the Constitution, and that Section 26 was unconstitu-
tional. Apart from that, the question was of consider-
able public importance and one on which there were
strong views. He did not see, therefore, why Mr. Rey-
nolds should not get his costs of the proceedings.
He said that Mr. Reynolds had come to court to
assert his constitutional rights, and people who assert
their constitutional rights were to be encouraged.
Mr. Reynolds, suing by his father, Arthur Reynolds,
had claimed that he was entitled to vote in the General
Election and at any election that might occur before
April 15. He had named as defendants the Attorney-
General, the Returning Officer for the Dail constituency
of Dun Laoghaire and Rathdown, and the Minister for
Local Government.
Constitutional amendment
Mr. Justice Kenny said that the President, acting on
the advice of the Taoiseach, had dissolved Dail Eireann,
and it had not been suggested by anybody that that
was contrary to the Constitution or that there was any-
thing against the law in doing that. The basis of Mr.
Reynolds's claim was that he had acquired by the
amendment to the Constitution the right to vote. "The
short answer to the case, I think, is that he has not,"
said Mr. Justice Kenny. If one read Article 16 (1) 2 it
would be seen that attaining the age of 18 did not of
itself confer the right to vote at an election.
An election could not be conducted without having a
register, and the register had to contain the names of the
electors so that they could be identified by the returning
officer or by the presiding officer at the polling booth.
The right to vote conferred by Article 16 (1) 2 was the
right to vote conditional upon the person having
attained the age of 18, conditional upon the person not
having been disqualified, and conditional upon the per-
son complying with th*> provisions of the law relating
to the election of members of Dail Eireann.
57