The Gazette 1981

GAZETTE

APRIL 1981

the Trade Union Act, 1941, which had been declared to be

unconstitutional by the Supreme Court in

NUR v

Sullivan.

They further contended that the constitutional

right of a citizen under Article 40 (6) (1) (iii) extended to

protect the benefits of joining a union and that the principal

benefit of so joining was to be able to negotiate with an

employer through the expertise and strength of the union.

McWilliam J., expressing a view rejected the view that

workers had a constitutional right to select their

negotiating unit. In a remark which, on the facts of the

case, may be

obiter,

he said, ". . . the suggestion in the

pleadings that there is a constitutional right to be

represented by a union in the conduct of negotiations with

employers has not been pursued and, in my opinion, could

not be sustained. There is no duty placed on any employer

to negotiate with any particular citizen or body of

citizens."

Nor would the citizen's right to dissociate encompass

such a right, the learned Judge stating that to hold that the

Southern Health Board must agree to negotiate with the

ATGWU in order to afford the plaintiffs the full benefits of

the exercise of their constitutional right to "join" a union,

would be a "great extension of the principle that a citizen

must not be coerced into joining an association or union

against his will."

The learned judge pointed out that, in the earlier

decision of

Murphy v Stewart,

neither the High Court

nor the Supreme Court felt it necessary to consider the

constitutionality of Clause 47 (d), and under the similar

circumstances of the instant case, he did not feel obliged

to do so either. He did state, that, " . . . there may be a

distinction between placing a statutory embargo upon any

person doing or refraining from doing something and a

voluntary agreement between parties that they will or will

not do something which they are entitled to do or not to

do at their discretion."

Freedom of Association under the European Convention

It is respectfully submitted, however, that if a citizen's

constitutional rights are infringed the source of infringe-

ment is irrelevant; and the Courts will restrain inter-

ference with the exercise of such rights in all cases, except

where the exercise of one's constitutional rights results in

the violation of the constitutional rights of another.

McWilliam J. concluded on this point that the refusal of

the Board to negotiate with the ATGWU did not amount

to coercion on the plaintiffs to forego their constitutional

rights.

With regard to the refusal of the ITGWU to consent to

the transfer of their former member to the ATGWU, the

learned judge held that it followed from the decision in

Murphy

Stewart

that such refusal did not infringe the

constitutional rights of the plaintiffs, even where, as in the

present case, the transferee union had received the

workers into membership. This last factor constituted an

essential difference between the instant case and

Murphy

v Stewart,

and consequently the learned judge felt con-

strained to consider the relevance of the absence of the

facility to negotiate on the plaintiffs position. He con-

cluded, however, that ATGWU had as little right as the

ITGWU to negotiate with the Board and that there was

nothing unconstitutional in one union endeavouring to

obtain better terms for its members than those obtained

by any other union, whether by obtaining special negotia-

tion rights or otherwise. Consequently the plaintiffs' claim

failed.

It would appear, therefore, that Article 40 (6) (1) (iii)

does not guarantee workers the right to be represented by

the union of their choice. Before leaving this point,

however, one must bear in mind Ireland's obligations

incurred under the European Convention on Human

Rights. From the decisions of the Court of Human Rights

National Belgian Police Union v Belgium,

Swedish

Engine Drivers Union v Sweden

and

Schimdt

and Dahlstrom v Sweden,

it is clear that freedom of

association under the Convention includes the right to

have one's union make representations on one's behalf,

though not the right to compel employers to negotiate

with that union. Therefore, any provision in Irish law

which would entitle a citizen to join a union but then deny

that union the right to represent him, would appear to be

in violation of the European Convention.

However, the right to represent one's members cannot

be regarded as a blanket right to represent them in all

situations - it may be that a distinction could be drawn

between representing members in relation to individual

grievances, which would be protected by Article 11 of the

European Convention, and representing them in negotia-

tions on terms and conditions of employment which might

not be so protected, but rather be subject to an agree-

ment between employers and unions similar to that found

in the case of

Becton Dickinson & Co. Ltd. v Lee.

Such a

distinction has been recognised by the Labour Court in a

number of recommendations.

In conclusion, it is submitted that there is no authority

supporting the proposition that the constitutional right of

freedom of association includes the right to select one's

negotiating unit. Therefore it would appear to be open to

employers and trade unions to agree that the employer

would only negotiate with certain designated unions on

terms and conditions of employment. Individual workers

do have the right to join the union of their choice and may

even insist that such union represent them in relation to

their own individual grievances but a case can certainly be

made for denying workers the right to insist on their chosen

union participating in collective agreements with

management, if to do so would violate a previous

agreement between unions and management designating

specific unions as the sole negotiating units for that

purpose. This would appear to leave the way open for both

sides of industry to compel workers to accept specified

unions as their representatives for collective bargaining

purposes and, to the extent that this goes some of the way

towards dealing with the problem of multiplicity of unions,

then the decision in

A boot and Whelan v ITGWU and the

Southern Health Board

is to be welcomed.

FOOTNOTES

1. The exception being the Trade Union Act, 1935, which amends

S. 7 of the Trade Unions Act, 1871, in order to permit unions to own

property in excess of one acre of land.

2. See "Trade Unions and the Future" by Professor M. P.

Fogarty, in

Trade Unions and Change in Irish Society (

1980), where,

at p. 143 thereof, the author refers to the Supreme Court decision in

NUR v Sullivan

119471 I.R. 77, as a "disaster where after effects are

only too visible now".

3. Unreported, High Court, 2 December 1980.