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GAZETTE
APRIL 1981
4. See S. 9 (a) of the National Labour Relations Act, 1935, as
amended by the Labour Management Relations Act, 1947.
5. The distinction between the right to associate and the right to
negotiate can be seen quite clearly in S. 34 (5) of the 1941 Act, which
provided that workmen were always free to join a trade union which
did not carry on negotiations for fixing wages or other conditions of
employment. The section is no longer in force because of the Supreme
Court decision in
NUR v Sullivan
11947) I.R. 77, which provided that
Part 3 of the 1941 Act was unconstitutional, because it denied
workmen their freedom of association. (It was not argued, however,
that S. 34 (5) was,
per se,
unconstitutional.)
6. Conclusions II, at p. 22. For a similar view, see the speech of
Lord Scarman in
UKAPE v A CAS
I 1980] 1 All E.R. 612. at p. 622.
7. (1942] Ir. Jur. Rep. 33, cited recently in
CIE v Darby,
High
Court, unreported, 16 January 1980.
8. J. P. Casey, in an article in the 1972
Irish Jurist
(n.s.) at p. 1,
"Reform of Collective Bargaining Law", concludes, at pp. 7-8 thereof,
that Article 40 (6) (1) (ii) would not give rise to a right to bargain
collectively, because of the practical difficulties involved, though he did
consider that the Oireachtas could create a statutory duty to negotiate.
It must be pointed out, however, that this article was written prior to
the Supreme Court decision in
Becton Dickinson & Co. Ltd. v Lee
[ 1973] I.R. 1. though cf. Labour Court Recommendations Nos. 381
and 2556, which appear to establish that if a union represents a size-
able proportion of the workforce, then the employer has a moral, if not
indeed a legal duty, to negotiate with that union,on terms and condi-
tions of employment. Cf. also Labour Court Recommendations Nos.
5070 and 5338, where the Court recommended that the relevant
unions be recognised by the employers for negotiating purposes, even
though in the latter case the union represented only 7% of the work-
force.
9. [1973] I.R. 1. See also de Blaghd, "Trade Union Law - 1973
Style." [1974] 108 ILTSJ 71.
10. ó Dálaigh C.J. and Butler J. concurred with the judgement of
Walsh J.; Henchy and Fitzgerald JJ. dissented.
11. Ibid., at pp. 24-25.
12. Ibid., at pp. 40-41.
13. Ibid., at p. 48. Henchy J. was of opinion that the picketing in
this case was intended to hinder the company in carrying out its part of
the agreement with NEETU and ITGWU and therefore, because it
was not merely for the purpose of peacefully obtaining or communi-
cating information or of peacefully persuading any person to work or
abstain from working, it lost the protection of the 1906 Act. For some
of the legal difficulties with this view, see de Blaghd, op. cit., at pp.
109-109.
14. [1973] I.R. 1 at p. 14.
15. A right also protected under the European Convention on
Human Rights. See the Commission Report on
James and Others
v
U.K.,
adopted on 14 December 1979.
16. [1947] I.R. 77.
17. Unreported judgement, p. 7.
18. Ibid., pp. 10-11.
19. [1973] I.R. 97.
20. Unreported judgement, p. 14.
21. See
Crowley v Ireland,
unreported, High Court, 21 July 1978.
22. Quaere whether the Irish Transport can now represent the
plaintiffs in collective bargaining with the Southern Health Board, even
though the plaintiffs have terminated any agency relationship between
themselves and the ITGWU. Cf.
Singh
v
BSC [
1974] I.R.L.R. 131.
23. Judgement of the Court delivered on 27 October 1975.
24. Judgement of the Court delibered on 6 February 1976.
25. Judgement of the Court delivered on 6 February 1976.
26. See Recommendations Nos. 381, 5070, 5338, 5962.
Supplement to
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Comment • • •
O
Continued from page 51
firms whom a majority of the bereaved and injured might
choose to appoint. It is the pre-emption of this right to
choose which has given rise to some justified criticism.
What is not justified is the criticism offered by at least
one public representative that a firm chosen by the
Government to represent the bereaved would be
influenced in the conduct of the case by the fact that they
were being paid by the State. Such an allegation contrasts
with the usual criticism that lawyers defending persons on
criminal legal aid, strive too hard to defeat the
prosecution. We have no doubt that following in the long
tradition of independence of the legal profession, any
lawyers appearing on behalf of the bereaved and injured,
will work to the limits of their ability to assist the Tribunal
in its work, regardless of their source of payment.
CONVEYANCING NOTE
Family Home Protection Act
No piece of legislation in recent years has caused as
much difficulty for the profession as the Family Home
Protection Act, 1976. The difficulties presented by the
drafting of the Act for the Conveyancers have been
considerable and many practitioners have found
themselves in considerable difficulties in adducing the
necessary evidence to satisfy their colleagues that a
particular transaction may not be void.
The Conveyancing team running the Conveyancing
Module in the Professional Course in the Society's Law
School commissioned one of their number to prepare a
"hand out" for the students which would, in addition to
providing an explanation of the various aspects of the Act
which impinge on conveyancing transactions, include
some precedent declaration which might be considered
appropriate.
The "hand out" as prepared by Peter Polden and Rory
O'Donnell seems to the Conveyancing Committee to be
of such value that it should be circulated to the Profession
and a copy of it is enclosed herewith. Practitioners will note
that the "hand out" has been prepared so that it may
readily be bound in the Law Society's Handbook.
The Conveyancing Committee felt that while the style
of the "hand out" was not perhaps as formal as might be
expected in a document emanating from the Society and
distributed to its members, the content was of such a high
quality that any amendments designed to formalise the
document would probably only result in a diminution of its
value.
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