The Gazette 1981

SEPTEMBER 1981

GAZETTE

means that existing employees cannot be dismissed for refusing to join a trade union pursuant to closed shop agreements. A similar decision had already been reached by the Irish Supreme Court in Meskell v. C.l.F. 2 It is arguable, from a reading of the decision in the British Rail case, that action short of dismissal taken to compel workers to join a trade union might not violate the Convention. 17 A similar view may be found in the judgment of Kingsmill Moore J. in Education Co. of Ireland v. Fitzpatrick 18 in the context of the guarantee of freedom of association under the Irish Constitution. (c) The prospective employee also benefits from the protection of Article 11. The Irish Supreme Court, in Becton-Dickinson & Co. Ltd. v. Lee 19 was prepared to assume, though without deciding the point, that a term in a contract of employment requiring a new employee to join a specified trade union or unions was not unconstitutional on the basis that this would amount to a waiver of his constitutional rights. 20 The European Court, however, stated, in the British Rail case, that restricting an individual's choice of unions so that it becomes either non existent or is so reduced as to be of no practical value amounts to an infringement of his right to freedom of association. This would seem to sound the death-knell for a term such as that in question in the Becton-Dickinson & Co. Ltd. case, though it is arguable that it merely anticipates a similar decision by the Irish courts, given the exacting standards required for a valid waiver of constitutional rights, outlined by the Supreme Court in G. r. An Bord Uchtala. 21 The statement of the European Court also calls into question the validity of the pre entry closed shop, where workers are required to be members of a certain union or unions before they can apply for a particular job. (d) In the light of the British Rail case, it is arguable that a major part of the legislative policy underlying the Trade Union Acts 1941-1975 infringes Article 1 1. As was pointed out at the outset in the aftermath of the N.U.R. v. Sullivan case, the legislature resorted to a policy of hindering the creation of new unions and facilitating the amalgamation of existing ones, in an attempt to resolve the problem of multiplicity of unions. The first aspect of that policy, as exemplified by the Trade Union Act, 1971, makes it extremely difficult for workers to form a new trade union — a deposit of at least £5,000 must be lodged with the High Court for a period of eighteen months and the proposed trade union must have a membership of at least five hundred during the same period before it can apply for a negotiation licence. This obviously restricts the individual's freedom to form a new union and may therefore be in violation of Article 11. (c) It is now clear that before any interference with freedom of association can be protected by Article 11, paragraph 2, it must: (i) be prescribed by law; (ii) have an aim or aims that is or are legitimate under that paragraph, and (iii) be "necessary in a democratic society" for the aforesaid aims. Given the rigorous interpretation of these conditions by the Court in the British Rail case, it is arguable that these parts of the Trade Union Acts 1941-1975 which relate to llic granting of negotiation licences may not be entitled to the protection of Article 11, paragraph 2. (0 One ray of hope remaining for the Government and

industrial relations personnel is that the Court had nothing to say about sole negotiation agreements. 11 would appear therefore that it is still open for an employer to agree with one or more specified unions that they, and they alone, will be entitled to represent his workforce in any collective bargaining which may take place, a decision which is in line with the pronouncements of McWilliam J. in the recent High Court decision of Abbott 1». Whelan 22 and which is treated of in more detail by the present author elsewhere. 23 Conclusion The European Convention on Human Rights is, of its very nature, concerned with the rights of the individual. Legislative policy in Ireland with regard to trade unions, however, attempts to promote the collective interests of the Irish trade union movement. Of the two European cases under consideration in the present article, the British Rail case in particular emphasises the rights of the individual worker vis a vis his employer and the trade unions. More specifically, it confirms that Article 11 of the Convention confers some protection on the individual's "negative freedom of association." In so doing, however, it brings one step closer the inevitable conflict between our domestic legislative policy on trade unions and our international obligations under the Convention of Human Rights. • 3. Judgment delivered on 23 June 1981. 4. Judgment delivered on 13 August 1981. 5. Paragraph 64 of the judgment of 23 June 1981. 6. The legal position in the U.K. is now governed by the Employment Act 1980, which protects, inter alia, employees who object on grounds of conscience or other deeply-held personal conviction to being a member of a trade union. 7. Paragraph 49 of the judgment of 13 August 1981. 8. Report of 19June 1950 of the Conference of Senior Officials, Collected Edition of the "Travaux Preparatoires", vol. IV, p. 262. 9. Paragraph 52 of the judgment of 13 August 1981. 10. Cf. the strong dissenting opinion of Judge Sorenson (13 August 1981), joined by Judges VQhjalmsson and Lagergren, where he attacks the view that the positive and negative freedom of association arc logically connected. 11. Paragraph 55 of the judgment of 13 August 1981. 12. Paragraph 56 of the judgment of 13 August 1981. 13. Judgment delivered on 7 December 1976. 14. Paragraph 63 of the judgment of 13 August 1981. 15. (1955) 351 U.S. 225. See also Lathrop v. Donohue(\96 1) 367 U.S. 820. 16. Ibid, at p. 238. 17. See paragraph 55 of the judgment of 13 August 1981. 18. 119611 I.R. 323, at p. 396. 19. 119731 I.R. 1. 20. See the judgment of Walsh J. at p. 40; the judgment of Hcnchy J. at p. 48. 21. 119801 I.R. 32. 22. High Court, 2 December 1980, unreported. 23. Sec "The right of workers to choose their collective bargaining agents". Gazette of the Incorporated Law Society of Ireland, April 1981, p. 53. Footnotes 1. 119471 I.R. 77. 2. 119731 I.R. 121.

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