Emasculation of rights – a presentation in time-lapse
Posted on February 17, 2014
The following lecture was given by Tom Wall on the 6th of February 2014 in Congress House
Courtrooms, traditionally, are cold chambers for unions. More frequently than not, legislation intended to provide rights and protection for unions have been interpreted in ways that tend to curtail or restrict union activities and collective rights for workers. This has occurred, not just recently, but over a long period of time. Like with time-lapse photography, movement is best revelled when speeded up. I intend therefor to focus on three periods, firstly, the first decade of the twentieth century when, what can be regarded as a legal emancipation for unions was achieved; secondly the mid twentieth century when a few landmark decisions were handed down in the High and Supreme Courts that remain highly significant; and, finally, look at recent development in industrial relations law which seems to indicate an acceleration of judicial activism that has emasculated long standing protections.
While making no allegations against judges, collectively or individually, I hope to demonstrate that the combined effect of a number of judgements has negated the fundamental right of association contained in the constitution and in legislation.
Legal emancipation - the 1906 Act
The basis of out trade union and trade disputes law goes back more than a century. Its nature and genesis may be a contributory factor to more recent developments. From 1871 a succession of laws enacted in the Westminster parliament gave legal status to unions and protected them against being sued. It may surprise you to learn that a number of these acts remain, to this day, the legal basis for unions in this country. The culmination of this series of enactments was the Trade Disputes Act, 1906. Previous attempts at protecting unions against actions for damages had proved vulnerable to the ingenuity of lawyers and judges. The 1906 Act was designed to make unions bullet-proof in this regard. Unions were given absolute immunity and trade unionists were exempted from liability for specified torts committed "in contemplation or furtherance of a trade dispute"; the famous golden formula. Although the 1906 Act has been repealed, the wording used has, with only a small number of changes, been reproduced in sections 12 and 13 of the Industrial Relations Act, 1990 - our primary legislation governing industrial relations.
This level of protection was extraordinary. Unions were given total protection from civil law actions. However, this was achieved, not by making their actions legal, but by granting immunity from prosecution. It is not widely known that much of what unions do when involved in a trade dispute remains inherently illegal, tortious to use the legal term, a breach of civil and contract law. Immunity from the law was never likely to appeal to those steeped in the legal tradition. In the eyes of the law their actions can be deemed a criminal or civil conspiracy. In light of this, it might not be surprising that judges often appear to view with distain the activities of unions. They may take the view that since the immunities run counter to the common law they are to be given no wider scope than allowed for in the precise wording of the statutes. This restraint may have feed into judicial interpretations of the constitution that I shall deal with presently. It should not be forgotten, however, that immunities are indispensible to unions and the normal conduct of industrial relations. Without them unions would disappear leaving workers at the mercy of their employer. While, as is often pointed out, more than half of employees are not in unions, many non-union employers pay at, and sometimes even above, union rates to ensure continued non-unionisation: meaning non-union members also benefit from the existence of unions.
The 1937 constitution contains a right of association in its section detailing fundamental rights. Article 40.6.1. states:
The state guarantees liberty for the exercise of the following rights, subject to public order and morality:
(iii) The right of the citizens to form associations and unions.
Laws, however, may be enacted for the regulation and control in the public interest of the exercise of the foregoing right.
The choice of the word “form” instead of “join” associations and unions might seem odd. The reason appears to be that “join” would imply agreement on the part of the joiner and the chosen union whereas a right to join would compel a union to accept someone into membership. As a result, a litigant who was refused membership of the Amalgamated Society of Woodworkers, because the union viewed him as not having the requisite trade credentials, lost his challenge when the court ruled that the constitution provides no constitutional right to join a union. (Tierney -v-. Amalgamated Society of Woodworkers)
Right to Disassociate
In 1961 the Supreme Court were presented with their first significant case requiring them to interpret Article 40.6.1(iii) of the Constitution in the circumstances of an industrial dispute (Fitzpatrick -v- Educational Company of Ireland). This arose when the Irish Union of Distributive Workers and Clerks (now incorporated in Mandate) picketed in pursuance of a demand that the employer compel an employee to join the union in line with an agreement. The Court, in a majority verdict, found against the union. Justice Budd, who delivered the majority judgement, considered that the freedom to associate, i.e. to join a union, contains by implication, a corresponding right not to join a union. Kingsmill-Moore who joined with him, went further, warning that “citizens must not be forced to join a union or association professing, forwarding and requiring its members to subscribe to opinions to which they oppose” notwithstanding the fact there is no evidence that unions have ever required members to subscribe to any opinions good bad or indifferent. On the substantive issue dealt with by Budd, there is logic to the reasoning that the right to associate implies a consequent right to disassociate. However, as mentioned, the constitution does not contain any explicit right to join a union, merely to form one, so to conclude that the constitution protects those who refuse to associate requires two levels of interpretation; an inference based on an inference. Of course, it is entirely reasonable to assume that the right to ‘form’ a union implies the right to join one already formed but to go further and assume an equal constitutional right not to associate is departing further from the natural meaning of the words in the constitution. Be that as it may, this reasoning has become a landmark judgement. But even if justified in the circumstances of that dispute, should it have universal application? The right to form unions enshrined in the constitution) is not absolute: apart from being subject to public order and morality, the legislature has the power, and has regularly used it, to regulate and control its exercise in the public interest. But the Court interpreted right to not associate was and remains unqualified and an apparently absolute right. Could there be no circumstances where compulsion might be warranted? As judges know well, barristers and solicitors are required to join and maintain membership of their respective societies, presumably in the public interest. What about employment contracts that require membership of a specified union? Many employers have, in the past insisted on this in order to avoid having competing unions organising within their workplaces. Although founded on what could be regarded as overstretched reasoning, an unqualified right not to join a union has become an unchallenged, and apparently unchallengeable, interpretation of a constitutional provision intended to enshrine the right of workers to organise themselves in unions.
No negotiation rights
Another interpretation of the constitution that gained wide currency dealt with what, if any, obligation is placed on an employer as a consequence of their employees being organised in a union. The landmark case is Abbott and Whelan -v- ITGWU and South Eastern Health Board which was decided in 1982. A group of employees of the South Eastern Health Board, who had resigned from the ITGWU and joined the ATGWU sought to have their new union represent them. The employer refused to deal with the ATGWU and the workers took legal action on the basis that the constitutional right to join a trade union carried with it the consequent right to have their union recognized by the employer. The High Court dismissed their challenge holding that while there was a constitutional right to join a union, this did not place any obligation on the employer to deal with that union. It has to be admitted that the result was not an unwelcome one within the echelons of the Irish trade union movement at the time. It was the outcome of an inter-union dispute and disputes between unions over membership and negotiation rights are expected to be resolved under ICTU internal procedures rather than the courts. It was only later that the implications of the judgement became clear. Despite occasional conflict, union recognition was not a major issue at the time. Invariable, multinational companies concluded single union recognition agreements. But within a few years this situation had changed and the ruling offered significant support to a growing body of employers determined to resist unionisation.
The ruling that the constitutional right to form associations and unions places no obligation on employers to engage with them, since reiterated in judgements of the Supreme Court, can be justified on the narrow grounds that the Constitution makes no such demands on employers. If the Fitzpatrick v Educational Company of Ireland judgement involved a level of judicial activism, here judicial restraint was exercised. There seems to have been little consideration by the Court of what the purpose of this section of the Constitution was and what in reality does the constitutional right confer. Workers form and join unions so that they can represent them in dealings with their employer concerning pay and conditions of employment. If they are prevented from so doing they are of no real benefit to their members and the right conferred in the Constitution is worthless. Surely this was not the intention. Much later, Justice Susan Denham in delivering a judgement of the Supreme Court on an unrelated matter, commenting on the Court’s approach to interpreting legislation, said: “the literal rule should not be applied if it obtains an absurd result which is pointless and which negates the intention of the legislature” (emphasis added). An approach one might have been expected to apply in this case.
It is not unusual for rights provided to some to impose a duty on others, at least to the extent of not frustrating the exercise of that right. There have been instances of employers making it a requirement for acceptance into employment that the employee will not join a union or in other ways discouraging employees from joining a union. Would that not be seen as an attempt to curtail rights bestowed? The courts have not been tested on this point but to date legal commentary suggests that there are no circumstances in which employers can be held to have regard to workers constitutional right to associate.
The right of an individual to be represented within a process that might result in adverse findings against him or her is an accepted aspect of fair procedures. Why should this not apply in respect of collective issues? Recently, Judges themselves have called for the establishment of a judicial council where they would be represented on matters relating to their pay and conditions. This presumably would require legislation: i.e. a law that would make it mandatory on their employer, the State. However, representation of ordinary employees by their union, seems to be another matter entirely. As we shall see, the remarks of at least one eminent justice, implies that any law that attempted to oblige an employer to deal with unions would be unconstitutional.
Ryanair Judgement and the demise of the 2001 and 2004 Acts
Let us now look at what was said in the Ryanair Judgement in 2007. The details are well known and it is not my intention to reprise the case in any detail. In line with my theme I will only to touch on the Supreme Court’s rationale for their judgement and look at its consequences for representation rights. The key issue concerned the existence or otherwise of collective bargaining within Ryanair. If such existed then the case could not be heard under the 2001 / 2004 Industrial Relations Acts designed to resolve disputes where an employer refused to deal directly with a union. The Court, by unanimous verdict, found that by not accepting the evidence of Ryanair managers, and by not hearing evidence from any of the pilots, there was an inadequate basis for the Labour Court determining that collective bargaining existed. The appeal was upheld. The judgement delivered by Mr Justice Geogheghan was highly critical of the Labour Court, describing its procedures as not fair.
Although the case could have been referred back to the Labour Court this never happened and in the six years since the judgement referrals under the legislation has virtually ceased. The two acts intended to allow workers a modicum of representation, legislation based on a set of carefully constructed compromises, ones negotiated and agreed by the social partners within the structures of two social partnership agreements, are effectually redundant. Presumably, this was not the intention of the Supreme Court but anyone experienced in in these matters would have realised instantly that this was the inevitable outcome. The judgement requires the Labour Court to hear evidence from employees in support of their case. It takes courage for a group of employees in a company known to be hostile to unions to take the steps necessary to secure representation. Invariable, they do so covertly, knowing that their actions place them in some jeopardy. Only the more courageous and determined persevere. To ask them to identify themselves and then face hostile cross examination by the best lawyers money can buy, in a Labour Court transformed by order of the Supreme Court into a replica of our adversarial system of justice, is bound to deter. It was for this reason that the UK and the US legislation dealing with disputes about bargaining rights allows anonymity to be preserved by mandatory use of secret ballots, independently supervised.
One cannot question the wisdom and great learning of our judiciary. Justice Geogheghan is the son of a former Supreme Court judge; his wife is a High Court judge whose own father was also on the Supreme Court. The family is steeped in the law and have clearly served it with great distinction. But, just perhaps, the life experience of such distinguished jurors does not permit them to fully understand these difficulties. They would be right to point out that it’s the legislator’s role to make law not the judges. It just seems though that whenever legislators are persuaded to provide some legal support for workers representation some legal impediment is found which weakens it or makes it inoperable. The right to join a union has become an untrammelled right not to join. The fundamental right to form unions to represent workers is now no more than empty words.
Registered agreements struck down
In 2011 the High Court ruled that operations of Joint Labour Committees were found to be unconstitutional (John Grace Fried Chicken v. The Labour Court) and last year the Supreme Court declared registered employment agreements to also be unconstitutional (McGowen and ors v. the Labour Court Ireland and ors). These were two of the most significant provisions of the Industrial Relations Act of 1946 that for over sixty wears had protected those workers most at risk of exploitation. The Courts determined that the relevant section of the 1946 Act permitted a degree of delegation of powers that, under the constitution, can only be exercised by the Oireachtas. Strangely, no court ever found unconstitutional laws and practices under which religious bodies were granted carte blanche powers to detain children and women, often with appalling results. Be that as it may, the judgement on registered agreements struck down a mechanism by which agreements, made by employers and unions broadly representative of a sector, could have legal effect throughout that sector of industry. In his judgement Justice Fennelly stated his belief that legally enforceable collective agreements ‘appear somewhat anomalous today.’ In fact they are the norm in many states in the EU. It is hard to avoid the impression that, under our seemingly unique system of law, all the protections for organised workers, constitutional and legislative, are fare game.
ILO Conventions and Human Rights Charter
All this has occurred notwithstanding an apparent departure from international conventions and treaties. As David Begg pointed out in his address to Seanad Éireann in September last, the right of workers to be represented by unions is contained in two ILO conventions, ratified by Ireland and in the EU Charter of Fundamental Rights. Despite this, it would appear that judicial opposition to the state imposing any obligations on employers that would allow unions to represent their members is absolute. Justice Geoghegan, in his written judgement in the Ryanair case stated: “As a matter of law Ryanair is perfectly entitled not to deal with trade unions nor can a law be passed compelling them to do so. (Emphasis added). This was said ‘obiter dicta’ meaning it was said ‘in passing’ and does have the status of a binding judgement. However, in so far as it seems to reflect a view widely held on the bench, it seems that any law that the Oireachtas may pass to oblige employers to deal with unions, in whatever, limited or regulated form, will be deemed unconstitutional. This is an extraordinary state of affairs. To the best of my knowledge, this is not the case in any other democracy in the world. I welcome, therefore the decision of Congress to lodge a case with the European Court of Human Rights. It seems justice in this, as in so many other fields, can only be obtained in Strasbourg or Brussels.