The Gazette 1981

GAZETTE

APRIL 1981

The Right of Workers to Choose

their Collective Bargaining

Agents

Gerry Whyte, B.C.L.,

Lecturer in Law, Trinity College, Dublin

One of the most serious problems affecting the Irish

trade union movement at present is that of multiplicity of

unions. The existence of competition for members among

unions can result in inter-union disputes which are both

costly in themselves and damaging to the public image of

the trade union movement, as, for example, the Ferenka

dispute in 1978. Furthermore, many small unions cannot

afford to provide those services to their members which

one larger union, representing the same workers, would

be in a position to provide. And, from the employers'

point of view, it is infinitely preferable to be able to agree

the terms and conditions of employment of a group of

workers with one bargaining agent, than to have to

approach a number of different unions in order to attain

the same result.

It is not surprising, therefore, that practically all post-

Independence legislation dealing with trade union law in

Ireland is concerned with the problem of multiplicity of

unions.

The Courts have on a number of occasions, been

confronted with attempts to tackle this problem and it

must be noted that judicial decisions are not a little blame-

worthy for the present situation.

A recent High Court

decision, however, gives cause for some hope that a

solution to this problem may be available which is accept-

able to the Irish judiciary. This is the decision of

McWilliam J. in

Abbott and Whelan v ITGWU and the

Southern Health Board?

The central issue in this case was whether Article 40 (6)

(1) (iii) of the Constitution, which guarantees freedom for

the exercise of the right to form associations, also

guarantees workers the right to choose their agents for the

purpose of collective bargaining. The significance of this

question for the present discussion is clear — if such a right

is not protected by the Constitution, then, arguably, the

problem of multiplicity of unions could be tackled along the

lines adopted in the U.S.A., where a worker is free to

associate with a union for political, social or even

sentimental reasons, but cannot rely on that union to

defend his economic interests if there is another certified or

designated union, elected by the majority of the employees

in the appropriate collective bargaining unit and

respresenting the class of workers to which he belongs, at

his workplace.

Even if this proposal proves to be unsuited

to contemporary Irish industrial relations, it is submitted

that a decision refusing to confer on workers a con-

stitutional right to select their own bargaining agent for the

purposes of collective bargaining would still alleviate some

of the difficulties caused by multiplicity of unions. In the

first place, an employer would not be obliged to consult

with every union which has members among his

workforce, in order to determine the conditions of

employment of that workforce. This would greatly simplify

the collective bargaining process for that employer.

Secondly, conferring sole negotiation rights on specified

unions would tend to make such unions more attractive to

workers, thereby reducing the number of workers

represented by the smaller, less-effective unions.

Prior to the recent decision of McWilliam J. in

Abbot

and Whelan

ITGWU and the Southern Health Board

the legal position in Ireland on this point was not absolutely

clear. Part II of the Trade Union Act, 1941, proceeds on

the assumption that freedom of association does not

include the right to negotiate. Before one can enter into

negotiations with employers, a negotiating licence must be

obtained - it is the licence, and not Article 40 (6) (1) (iii)

therefore, which entitles a union to negotiate on behalf of

its members.

This approach is also adopted by the

Committee of Experts under the European Social Charter.

In the second volume of their Conclusions they state that a

distinction exists between the right to establish or to join a

union, and the right of negotiation and collective action.

FIRRWv Great Southern Railway Co. and Others

the plaintiff union sought an order by way of injunction,

mandamus, or otherwise, to compel the defendant unions,

who represented other workers of the defendant

company, to enter into negotiations for a new agreement

governing conditions of service of employees, or alter-

natively, to compel the defendant company to enter into

negotiations with the plaintiff union, without the concur-

rence of the defendant unions. Gavan-Duffy J. granted

the plaintiff union a declaration that it was a trade union

representative of railway employees within the meaning of

S. 55 of the Railways Act, 1924, but held that he was

unable to grant it any relief entitling it to enter into

negotiations with either the defendant unions or the

defendant company.

It would appear from this case, therefore, that unions