The Gazette 1981

GAZETTE

APRIL 1981

do not have a right to enter into negotiations. It must be

pointed out, however, that the Constitution was not cited

before the learned trial judge and consequently the

decision may not be of much weight.

A more recent Supreme Court decision which might

appear,

prima facie,

to be relevant in this context is

Becton Dickinson & Co. Ltd.

Lee?

In that case, the first

five defendants had agreed with the plaintiff company

that, upon taking up employment with the plaintiff

company, they would join either the ITGWU (in the case

of the first defendant) or NEETU (in the case of the other

four defendants). The sixth defendant was an official of

AEF, to which union the first five defendants belonged,

and the defendants sought to have AEF represent them in

negotiations with the plaintiff company. When the latter

refused to negotiate with the AEF the defendants went on

strike and picketed the plaintiffs factory. The plaintiff

sought an injunction restraining picketing. The injunction

was granted by the High Court but the Supreme Court,

by a three to two majority,

allowed an appeal taken

against that decision.

Walsh J., delivering the judgment of the majority,

stated that a recognition dispute was a trade dispute

within the meaning of S. 5 of the 1906 Act.

Here the

defendants had agreed to be represented by ITGWU and

NEETU. Nevertheless, they were entitled to go on strike,

in breach of this clause, because the contract did not

contain a "no-strike" clause. For present purposes,

however, the most important passage in the judgment

deals with the constitutional rights of the defendants.

Walsh J. pointed out that the constitutional issues did not

fall to be decided, so that his remarks in this area are

necessarily

obiter.

Nevertheless they do afford us a valu-

able guideline as to the nature of freedom of association.

The learned judge assumed that the term in the contract

with regard to trade union membership was valid and

went on to say that it was not necessary to express

any opinion upon the question of how far or in what

circumstances a person could contract out of a constitu-

tional right. It would appear, however, that the constitu-

tional right in question is not a right to be represented by

one's union but rather the right to join the union of one's

choice. Walsh J.'s judgment is not clear on this — in

fact he does not specify the constitutional right to which

he is referring — but Henchy J. does refer to a "worker's

constitutionally-guaranteed right to choose whom he shall

join in union with,"

a right also referred to by counsel

for the defendants.

It is submitted, therefore, that the

Supreme Court recognised in this case that the right of

association included the right to join the union of one's

.choice.

That is not authority, however, for the slightly

different proposition that the right of association includes

a right to be represented by one's chosen association.

Constitutional right to select negotiating unit

This conclusion is supported by the recent High Court

decision in

Abbot and Whelan

ITGWU and the

Southern Health Board.

The facts of this case were as

follows: in October 1979 the plaintiffs, who were

employees of the defendant Board, resigned from the

ITGWU and joined the ATGWU, being dissatisfied with

their former union. The ensuing inter-union dispute was

referred to the Disputes Committee of the Irish Congress of

Trade Unions, and, on 30 April 1980 this body decided

that the ATGWU should not organise or seek to represent

members concerned in the dispute and should actively

encourage them to resume membership of the ITGWU.

Meanwhile a trade dispute had arisen between a member of

the ATGWU and the Southern Health Board. The

defendant Board refused to negotiate with the ATGWU

over this dispute because it feared that the ITGWU would

retaliate by taking industrial action. As a result of the

Board's refusal to negotiate with the ATGWU, the

plaintiffs commenced industrial action and also brought

proceedings in the High Court claiming various forms of

relief. Chief of these was an order restraining the

defendants from interfering with the exercise of the plain

tiffs' right to join the trade union of their choice and to be

represented by such union in the conduct of negotiations

concerning wages and conditions of employment. They

also sought declaratory orders to the effect that the de

fcndant union was not entitled 'to represent the plaintifTs in

negotiations with the Southern Health Board concerning

wages and conditions of employment and that the Board

was not entitled either to negotiate with the defendant

union concerning the plaintiffs' terms of employment or to

withhold recognition from the ATGWU. They sought a

further order restraining the defendant union from

negotiating on behalf of the plaintiffs with the Southern

Health Board and from interfering with the conduct of

negotiations by the ATGWU on behalf of its members.

Lastly, they sought damages for conspiracy and

infringement of constitutional rights.

The plaintiffs argued that Clause 47 (d) ot the Consti-

tution of Congress, which prevents unions from organ-

ising workers in a negotiating unit if the majority or a sub-

stantial proportion of those workers are already members

of another union, was similar to provisions in Part 3 of

FORMING

A COMPANY?

Why Worry?

The Law Society provides a quick service

based on a standard form of Memorandum

and Articles of Association. Where necessary

the standard form can be amended, at an

extra charge, to suit the special requirements

of any individual case.

In addition to private companies limited by

shares, the service will also form:

• Unlimited companies.

• Companies limited by guarantee.

• Shelf companies, company seals and record

books are available at competitive rates.

Full information is available from:

COMPANY FORMATION SERVICE

INCORPORATED LAW SOCIETY

OF IRELAND

BLACKHALL PLACE, DUBLIN.

Tel. 710711. Telex 31219 ILAW EI.