The Gazette 1971

Convention of Human Rights, on the ground that picketing is a combined exercise of the right of freedom of expression and the right of freedom of association. Some countries, like New Zealand, where strike action is illegal have bad strike records. In Sweden, there were many strikes to 1938, when Swedish employers and trade unions entered into an agreement for the mutual settlement of disputes. In the European Community countries, where there is a good strike record, the wor- kers have a greater say in the making of decisions, and the rights of employers are restricted. Many strikes over dismissals or discipline are unfortunately caused by the lack of properly and jointly negotiated rules. Objective of Donovan Report Paragraph 192 of the Donovan Report sets forth the following objectives : (1) To develop comprehensive and authoritative col- lective bargaining machinery at company or factory level. (2) To develop joint procedures for the rapid and equitable settlement of grievances. (3) To conclude with union representatives agree- ments regulating in detail the position of shop stewards. (4) To conclude agreements about the handling of redundancy. (5) To adopt effective rules and procedures governing disciplinary matters, including appeals. Thus the primary responsibility for good industrial relations rests upon management, and in Britain the law was regarded merely as an auxiliary vehicle until the recent Industrial Relations Bill was introduced. We must decide whether we should necessarily base our legislation as heretofore on British collective bargaining policy principles, or whether we should call on the law in the future to enforce those principles more drastically. The courts have an unenviable task, inasmuch as the common law is often at cross purposes with the legis- lative policy of collective bargaining; as Mr. Justice Gavan Duffy stressed in Cooper v Millea (1938), impor- tant questions as to how far organised labour may go have had to be decided by the conceptions of individual judges. It will be necessary to consider whether the circumstances in which it would be unlawful to strike should replace collective bargaining. It must be recog- nised that the law and society are powerless to limit the activities of workers, if they deliberately endeavour to act unlawfully. In answer to questions, Dr. Paul O'Higgins stressed that a cooling off period would work if it were to enforce compulsory negotiation, but not otherwise. Adequate machinery should be provided to settle grievances. The fact that pickets have to be sanctioned by the Irish Congress of Trade Unions is most useful. On the Con- tinent, many questions of labour relations have to be determined by joint agreement, and a conciliation mach- inery, as well as labour law judges are provided. As the law cannot solve all disputes, the lawyer has to make up his mind how far legislation would be useful. The Swedish joint agreement of 1938 only extended to the private sector, and the public sector was excluded: hence the recent strike of civil servants. The Swedish Government stated they would take strong measures unless an agreement can be reached to establish a system of voluntary arbitration. In order to be legally binding, collective agreements need not necessarily be contracts, but should then be regulated by statute. In Britain, it will henceforth be possible to reduce the number of unions, because the registrar can declare a particular union to be the union which must deal with a particular group of workers.

Trade Disputes and the Law Dr. Paul O'Higgins, Fellow of Christ's College, Cam- bridge, spoke on Sunday morning on "Trade Disputes and the Law". It was stressed that few lawyers had practical experience of industrial relations, and there are few legal experts on labour law. There is an unfor- tunate traditional working class antipathy to the inter- vention of lawyers in labour disputes. The current labour legislation is based upon the following policy considerations. (1) The best method of regulating labour relations is by voluntary collective bargaining. (2) It is therefore necessary for trade unions to exist and to give them the full legal protection afforded by the Trade Disputes Act, 1906. (3) There must be freedom of industrial action on both sides—freedom of employers to lock-out, and free- dom of employees to withdraw their labour. Here there is a judicial tendency to grant compen- sation to any person who suffers financial loss. Unfortu- nately it is not possible to have effective strike action without loss to others, such as employers or even the community at large. As Lord Wright said in the Harris Tweed case (1942), "the right of workmen to strike is an essential element in the principle of collective bargaining". The present worldwide upsurge of unrest and strikes has caused a change of judicial attitude which some consider confused. Workers are alleged to wish to play a greater part in making vital decisions, and not leaving their grievances to employers and professors. When governments attempt to impose an incomes policy of wage restraint, they have made the public sector the pace setters and these public servants fall behind others in wage levels. Large international industrial action has been met by increasingly hostile public oipnion ventilated by the press and other media of communications hostile to trade unions. Undoubt- edly the public does not want to tolerate strikes in certain essential industries. It is essential to the public to ultimately prevent the occurrence of true emergencies. Contravention of Social Charter But, in democratic states, the undeniable inconveniences of strikes are part of the price one must pay, Ireland signed the European Social Charter, but a committee of experts found that it had contravened the right to strike guaranteed in Article 6 in three respects : (1) Under the Trade Union Act, 1941, the protection given to strike action is confined to trade unions who have negotiating licences. (2) Cases like Smith v Beirne (1955) and B and I Steampacket v Branigan (1958) placed many employees such as nurses and schoolteachers outside the protection of the Trade Disputes Act, as they were not deemed "workmen". (3) It is unlawful for public servants to strike. The principle of collective bargaining, however, involves that strike action, preferably controlled, should take place. Some hold that actual loss of production should be permitted in certain circumstances. In Educational Company v Fitzpatrick (1961), the majority of the Supreme Court in its wisdom decided that it would be a contravention of the fundamental Constitution not to allow to persons the freedom to join —or not to join—trade unions, and that it was a contra- vention of freedom of choice to compel anyone to do so. It followed that a picket set up to enforce this alleged constitutional right of compulsion to join a union could not but be deemed a nuisance. Some writers and trade unionists had criticised this decision as an alleged infringement of the European

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