The Gazette 1981

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GAZETTE SEPTEMBER 1981
means that existing employees cannot be dismissed for
refusing to join a trade union pursuant to closed shop
agreements. A similar decision had already been reached
by the Irish Supreme Court in Meskell v. C.l.F.2 It is
arguable, from a reading of the decision in the British
Rail case, that action short of dismissal taken to compel
workers to join a trade union might not violate the
Convention.17 A similar view may be found in the
judgment of Kingsmill Moore J. in Education Co. of
Ireland v. Fitzpatrick18 in the context of the guarantee of
freedom of association under the Irish Constitution.
(c) The prospective employee also benefits from the
protection of Article 11. The Irish Supreme Court, in
Becton-Dickinson & Co. Ltd. v. Lee19 was prepared to
assume, though without deciding the point, that a term in a
contract of employment requiring a new employee to join a
specified trade union or unions was not unconstitutional on
the basis that this would amount to a waiver of his
constitutional rights.20 The European Court, however,
stated, in the British Rail case, that restricting an
individual's choice of unions so that it becomes either non
existent or is so reduced as to be of no practical value
amounts to an infringement of his right to freedom of
association. This would seem to sound the death-knell for a
term such as that in question in the Becton-Dickinson &
Co. Ltd. case, though it is arguable that it merely
anticipates a similar decision by the Irish courts, given the
exacting standards required for a valid waiver of
constitutional rights, outlined by the Supreme Court in G.
r. An Bord Uchtala.21 The statement of the European
Court also calls into question the validity of the pre entry
closed shop, where workers are required to be members of
a certain union or unions before they can apply for a
particular job.
(d) In the light of the British Rail case, it is arguable
that a major part of the legislative policy underlying the
Trade Union Acts 1941-1975 infringes Article 1 1. As was
pointed out at the outset in the aftermath of the N.U.R. v.
Sullivan case, the legislature resorted to a policy of
hindering the creation of new unions and facilitating the
amalgamation of existing ones, in an attempt to resolve
the problem of multiplicity of unions. The first aspect of
that policy, as exemplified by the Trade Union Act, 1971,
makes it extremely difficult for workers to form a new
trade union — a deposit of at least £5,000 must be
lodged with the High Court for a period of eighteen
months and the proposed trade union must have a
membership of at least five hundred during the same
period before it can apply for a negotiation licence. This
obviously restricts the individual's freedom to form a new
union and may therefore be in violation of Article 11.
(c) It is now clear that before any interference with
freedom of association can be protected by Article 11,
paragraph 2, it must:
(i) be prescribed by law;
(ii) have an aim or aims that is or are legitimate
under that paragraph, and
(iii) be "necessary in a democratic society" for the
aforesaid aims.
Given the rigorous interpretation of these conditions by
the Court in the British Rail case, it is arguable that these
parts of the Trade Union Acts 1941-1975 which relate to
llic granting of negotiation licences may not be entitled to
the protection of Article 11, paragraph 2.
(0 One ray of hope remaining for the Government and
industrial relations personnel is that the Court had
nothing to say about sole negotiation agreements. 11
would appear therefore that it is still open for an employer
to agree with one or more specified unions that they, and
they alone, will be entitled to represent his workforce in
any collective bargaining which may take place, a
decision which is in line with the pronouncements of
McWilliam J. in the recent High Court decision of Abbott
1». Whelan22 and which is treated of in more detail by the
present author elsewhere.23
Conclusion
The European Convention on Human Rights is, of its very
nature, concerned with the rights of the individual.
Legislative policy in Ireland with regard to trade unions,
however, attempts to promote the collective interests of
the Irish trade union movement. Of the two European
cases under consideration in the present article, the
British Rail case in particular emphasises the rights of
the individual worker vis a vis his employer and the trade
unions. More specifically, it confirms that Article 11 of
the Convention confers some protection on the
individual's "negative freedom of association." In so
doing, however, it brings one step closer the inevitable
conflict between our domestic legislative policy on trade
unions and our international obligations under the
Convention of Human Rights. •
Footnotes
1. 119471 I.R. 77.
2. 119731 I.R. 121.
3. Judgment delivered on 23 June 1981.
4. Judgment delivered on 13 August 1981.
5. Paragraph 64 of the judgment of 23 June 1981.
6. The legal position in the U.K. is now governed by the
Employment Act 1980, which protects, inter alia, employees who
object on grounds of conscience or other deeply-held personal
conviction to being a member of a trade union.
7. Paragraph 49 of the judgment of 13 August 1981.
8. Report of 19June 1950 of the Conference of Senior Officials,
Collected Edition of the "Travaux Preparatoires", vol. IV, p. 262.
9. Paragraph 52 of the judgment of 13 August 1981.
10. Cf. the strong dissenting opinion of Judge Sorenson (13 August
1981), joined by Judges VQhjalmsson and Lagergren, where he attacks
the view that the positive and negative freedom of association arc
logically connected.
11. Paragraph 55 of the judgment of 13 August 1981.
12. Paragraph 56 of the judgment of 13 August 1981.
13. Judgment delivered on 7 December 1976.
14. Paragraph 63 of the judgment of 13 August 1981.
15. (1955) 351 U.S. 225. See also Lathrop v. Donohue(\961) 367
U.S. 820.
16. Ibid, at p. 238.
17. See paragraph 55 of the judgment of 13 August 1981.
18. 119611 I.R. 323, at p. 396.
19. 119731 I.R. 1.
20. See the judgment of Walsh J. at p. 40; the judgment of Hcnchy
J. at p. 48.
21. 119801 I.R. 32.
22. High Court, 2 December 1980, unreported.
23. Sec "The right of workers to choose their collective bargaining
agents". Gazette of the Incorporated Law Society of Ireland, April
1981, p. 53.
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