The Gazette 1980

JUNE 1980

GAZETTE

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.'