The Gazette 1981

GAZETTE

SEPTEMBER 1981

The European Convention on

Human Rights and the

'Closed Shop'

Gerry Whyte, LL.M.,

Lecturer at Law, Trinity College, Dublin

RADE union legislation in Ireland can be divided

neatly into two parts, (a) the Trade Union Acts, 1871

1935, which are largely concerned with the consequences

flowing from the legal recognition of trade unions, and (b)

the Trade Union Acts, 1941-1975, which attempt to tackle

the problems created by the multiplicity of unions in

Ireland.

A radical attempt to resolve these latter problems was

thwarted by the Supreme Court when it held that Part III

of the Trade Union Act, 1941, was unconstitutional, in

N.U.R.

Sullivan.

In the aftermath of this decision, the

Oircachtas resorted to a more "softly, softly" approach

to the problem of multiplicity of unions. The Trade Union

Act, 1971, sought to make it more difficult to create new

unions, while the Trade Union Act, 1975, facilitated the

amalgamation of existing ones.

A legal concept which is very relevant to the resolution

of the problem of multiplicity of unions is what is known

as the "negative freedom of association" — the right to

dissociate. The existence of this concept precludes the

legal enforcement of post-entry closed shops, i.e. where

the worker is offered employment on condition that he

become and remain a member of a specified trade union

— Meskell v. C.I.E.

Industrial relations personnel are

therefore obliged to rely on practices such as pre-entry

closed shops, where applicants for new jobs are confined

to members of specified unions, or sole negotiation

agreements, which confer sole negotiation rights on a

specified union or unions, in order to minimise the

difficulties created by the multiplicity of unions.

The recent decisions (in June and August 1981,

respectively) of the European Court of Human Rights in

the case of

Le Compte, Van Leuven and De Meyere

and

in the case of

Young, James and Webster

have great

significance for this aspect of Irish industrial relations

insofar as they outline the circumstances under which

Article 11 (eleven) of the Convention on Human Rights

protects the "negative freedom of association." Article 1 1

provides that:

1. Everyone has the right to freedom of peaceful

assembly and to freedom of association with others,

including the right to form and to join trade unions

for the protection of his interests.

2. No restrictions shall be placed on the exercise

of these rights other than such as are prescribed by

law and are necessary in a democratic society in the

interests of national security or public safety, for the

prevention of disorder or crime, for the protection

of health or morals or for the protection of the

rights and freedoms of others. This Article shall not

prevent the imposition of lawful restrictions on the

exercise of these rights by members of the armed

forces, or the police or the administration of the

State.

The applicants in both of the cases under consideration

argued,

inter alia,

that Article 11 implied protected

freedom not to associate and that legal provisions which

either directly obliged the applicants to join a specific

association or which permitted others to compel the

applicants to join a specific association, infringed this

negative freedom. But despite the similarity of the

arguments used, the results arrived at by the Court in

both cases were diametrically opposed to each other.

The Case of Le Compte, Van Leuven and De Meyerc

(June 1981)

This case arose out of various disciplinary proceedings

taken by the Belgian Medical Association against the

applicants who were all medical practitioners. As a result

of these proceedings, the applicants were prevented from

practising medicine for periods ranging from one to three

months. Having failed in their respective appeals against

these decisions in the Belgian civil courts, the applicants

referred their cases to the European Commission of

Human Rights, alleging,

inter alia,

that their rights under

Article 11 of the Convention were infringed by the

requirement of Belgian law that they be members of the

Medical Association ("Ordre")- Their respective

applications, which had been joined in March 1977,

eventually came on for hearing before the Court of

Human Rights in November 1980 and it delivered its

judgment on 23 June 1981.

The Court held, by a majority of 16-4 that the

applicants' rights under Article 6 of the Convention,

which guarantees fairness of procedures, had been

infringed. But for the purposes of the present article, we

are more concerned with the unanimous decision of the

Court on the submissions based on Article 11.

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