108 / 270
GAZETTE
JUNE 1980
whatever its precise meaning — is not an absolute one (in
any event we would not expect it to be). A legitimate
interference with its exercise may be permitted by 'law';
presumably this is not the only form such interference
may take.
In the later case of
Educational Co. of Ireland v.
Fitzpatrick
[19611 I.R. 345, 397, Kingsmill Moore J.
said in the Supreme Court that
'The right to dispose of one's labour and to
withdraw it seems to me a fundamental personal
right, which, though not specifically mentioned in
the Constitution as being guaranteed, is a right of
a nature which I cannot see to have been adversely
affected by anything within the intendment of the
Constitution'.
These
dicta
suggest that a fundamental personal right to
strike exists outside the Constitution and that it is simply
'not adversely affected' by those rights within. The judge
may have had in mind the (incorrectly styled) common
law 'right' which derives from the various statutory
immunities conferred on those taking part in industrial
action. The
Educational Co.
case was decided before the
celebrated High Court judgment of Kenny J. in
Ryan v.
A.G.
[1965] I.R. 294. If one is dealing with a
fundamental personal right, as Kingsmill Moore J.
certainly suggests, it could be argued today that it falls
within the category of personal rights in Article 40.3.1°.
The case for a personal right to strike can be put in terms
of social ethics: O. Kahn-Freund and B. Hepple:
Laws
Against Strikes
(Fabian Research Series, no. 305, 7). If
people may not withdraw their labour, this may mean the
law compels them to work. A legal compulsion to work
would be abhorrent to the Irish system of law with its
constitutional tradition of guaranteed human rights and
fundamental freedoms.
So far, in the extracts given, Irish judges have referred
to the freedom to strike in an individual sense. More
recently the freedom was discussed in a collective context
but the insight into its nature is most unsatisfactory. In
Crowley and Others v. Ireland and Others
(Supreme
Court, unreported, 1 October 1979) a number of national
teachers withdrew their labour in pursuance of a trade
dispute affecting a particular school. Part of the defendant
teachers' defence was that their action was no more than
an exercise of the constitutional right to withdraw their
labour. Chief Justice O'Higgins did
'. . . not accept that such teachers had any
constitutional right to do what they did. However,
if they had any such right so to refrain from
teaching,
[emphasis added] it was not a right
which could be exercised for the purpose of
frustrating,
infringing
or
destroying
the
constitutional rights of others. Rights guaranteed
by the Constitution must be exercised having
regard to the rights of others. It is on this basis
that such rights are given by the Constitution.
Once it is sought to exercise such rights without
regard to the rights of others, and without regard
to the harm done to others then what is taking
place is an abuse and not the exercise of a right
given by the Constitution'.
If these words convey that a right to strike is qualified,
they are unexceptional. But they appear to go much
further than that. They apparently do not perceive as
102
worthy of consideration the central point that strike
action is used as an economic or political weapon. If it
could not be used as a weapon, it would be a pointless
phenomenon of industrial relations:—
'Every strike is in the nature of an act of war.
Gain on one side implies loss on the other . . .'
(Sir. Fitzjames Stephen:
The History of the
Criminal Law of England,
Vol. Ill, 219).
Given the broad and unlimited spectrum of constitutional
rights involved or likely to be involved in any industrial
conflict, it is impossible to forsee a situation where strike
action would not result in some degree of frustration,
infringement or destruction of the rights of others. In all
cases, therefore, is strike action to be unlawful? We
cannot deduce from the Chief Justice's words, either the
extent of the right to strike or the way in which the courts
might view a conflict of rights where, for example, strikes
involved essential services, or were political or
unconstitutional or where outsiders were unprotected.
The Chief Justice (with Parke J.) delivered a minority
judgment in
Crowley's
case: the majority of the Court
(Kenny, Henchy, Griffin JJ.) did not consider the
constitutional point in relation to strike action.
International Law
The right to strike is also found in international law.
The United Nations International Convention on
Economic, Social and Cultural Rights adopted in 1966
expressly mentions the right to strike, to be exercised in
accordance with the national law. This was the first time
that, on an international basis, the right to strike was
recognised.
The European Social Charter to which Ireland is a
party, provides in Article 6 that
'With a view to ensuring the effective exercise of
the right to bargain collectively, the Contracting
Parties . . . recognise: . . . The right or workers
and employers to collective action in cases of
conflicts of interest, including the right to strike,
subject to obligations that might arise out of
collective agreements previously entered into.'
This right is confined to conflicts of interest and does
not extend to conflicts of right. It can be subject to
restrictions which 'are prescribed by law and are
necessary in a democratic society for the protection of the
rights and freedoms of others or for the protection of the
public interest, national security, public health, or morals'
(Art. 31). Note that in the Charter the 'right' to strike is
an institution complementary to collective bargaining, not
a fundamental human right. (As such right, it would not
have been germane to the Social Charter).
Ireland is a member of the International Labour
Organisation.
3
In
1955,
following
repeated
and
persistent
representations by the Irish TUC, the Government
ratified ILO Convention no. 87 (1948) concerning
Freedom of Association and Protection of the Right to
Organise and Convention no. 98 (1949) concerning the
Application of the Principles of the Right to Organise and
to Bargain Collectively. (See
Trade Union Information
May-Ju. 1955, 14, 15.) Article 8(2) of ILO Convention
no. 87 enjoins that
'The law of the land shall not be such as to impair,
nor shall it be so applied as to impair, the
guarantees provided for in this Convention.'