The Gazette 1981

GAZETTE

SEPTEMBER 1981

The European Convention on Human Rights and the 'Closed Shop'

by Gerry Whyte, LL.M., Lecturer at Law, Trinity College, Dublin

T RADE union legislation in Ireland can be divided neatly into two parts, (a) the Trade Union Acts, 1871 1935, which are largely concerned with the consequences flowing from the legal recognition of trade unions, and (b) the Trade Union Acts, 1941-1975, which attempt to tackle the problems created by the multiplicity of unions in Ireland. A radical attempt to resolve these latter problems was thwarted by the Supreme Court when it held that Part III of the Trade Union Act, 1941, was unconstitutional, in N.U.R. v. Sullivan. 1 In the aftermath of this decision, the Oircachtas resorted to a more "softly, softly" approach to the problem of multiplicity of unions. The Trade Union Act, 1971, sought to make it more difficult to create new unions, while the Trade Union Act, 1975, facilitated the amalgamation of existing ones. A legal concept which is very relevant to the resolution of the problem of multiplicity of unions is what is known as the "negative freedom of association" — the right to dissociate. The existence of this concept precludes the legal enforcement of post-entry closed shops, i.e. where the worker is offered employment on condition that he become and remain a member of a specified trade union — Meskell v. C.I.E. 2 Industrial relations personnel are therefore obliged to rely on practices such as pre-entry closed shops, where applicants for new jobs are confined to members of specified unions, or sole negotiation agreements, which confer sole negotiation rights on a specified union or unions, in order to minimise the difficulties created by the multiplicity of unions. The recent decisions (in June and August 1981, respectively) of the European Court of Human Rights in the case of Le Compte, Van Leuven and De Meyere , 3 and in the case of Young, James and Webster 4 have great significance for this aspect of Irish industrial relations insofar as they outline the circumstances under which Article 11 (eleven) of the Convention on Human Rights protects the "negative freedom of association." Article 1 1 provides that: 1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests. 2. No restrictions shall be placed on the exercise

of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, or the police or the administration of the State. The applicants in both of the cases under consideration argued, inter alia, that Article 11 implied protected freedom not to associate and that legal provisions which either directly obliged the applicants to join a specific association or which permitted others to compel the applicants to join a specific association, infringed this negative freedom. But despite the similarity of the arguments used, the results arrived at by the Court in both cases were diametrically opposed to each other. The Case of Le Compte, Van Leuven and De Meyerc (June 1981) This case arose out of various disciplinary proceedings taken by the Belgian Medical Association against the applicants who were all medical practitioners. As a result of these proceedings, the applicants were prevented from practising medicine for periods ranging from one to three months. Having failed in their respective appeals against these decisions in the Belgian civil courts, the applicants referred their cases to the European Commission of Human Rights, alleging, inter alia, that their rights under Article 11 of the Convention were infringed by the requirement of Belgian law that they be members of the Medical Association ("Ordre")- Their respective applications, which had been joined in March 1977, eventually came on for hearing before the Court of Human Rights in November 1980 and it delivered its judgment on 23 June 1981. The Court held, by a majority of 16-4 that the applicants' rights under Article 6 of the Convention, which guarantees fairness of procedures, had been infringed. But for the purposes of the present article, we are more concerned with the unanimous decision of the Court on the submissions based on Article 11.

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