Legal right to strike?

OTK

In the article 6 of the constitution it states:

dev wrote:

6. 1° 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.

As there are various Irish companies engaged in industrial disputes these days, I was wondering what legal protection exists in Irish law to protect trade unions and their activities such as calling a strike.

Is it illegal to be fired for going on strike? What does it mean when one union is recognised by the employer but the other is not?

Is there any possibility that the organisers of a strike could be sued by the employer for financial loss?

Is there a right in European law to union membership and striking?

Tom Young

There is an unenumerated right in the constitution to associate or dissociate with unions or groups, the key case is Meskell v CIE.

If a person is a member of a union and there is strike conditions, in general terms it is not illegal to strike.

I have further information in respect of the EU but there is nothing really working in prohibition of such items.

Take a look at France, Spain, Italy etc. Far more likely to strike.

OTK

Tom Young wrote: »

There is an unenumerated right in the constitution to associate or dissociate with unions or groups, the key case is Meskell v CIE.

I thought this was an explicit right as quoted from the constitution above rather than a discovered right.

If a person is a member of a union and there is strike conditions, in general terms it is not illegal to strike.

Is the union not guilty of an economic tort by damaging the employers' business through organising a strike? I guess that everyone has the right to choose not to show up for workduring a strike or at any other time, but do we have the right not to be fired for doing so afterwards?

Tom Young

I apologise, its numerated, under 40.6.1.iii, as you cited. However what I confused was the impied right which is not specifically mentioned.

Educational Co. Ltd. v. Fitzpatrick (No.2) [1961] IR 345 and Meskell v. C.I.É. [1973] IR 121.

The decisions in Educational Co. V Fitzpatrick and Meskell v. C.I.E. would pose barriers to any legislative attempt to create or assist the closed shop. The European Court of Human Rights would also inhibit such action. Young, James and Webster v. U.K. (1981) 4 E.H.R.R. 38.

In Becton Dickinson v. Lee [1973] I.R. 1 Henchy J indicated that there was no constitutional barrier to providing by contract that membership of a particular union could be a prerequisite for a particular employment. Thus it would seem to follow that an employer could make union membership a condition of a job offer.

Can you explain your economic tort specifically please? These are quite limited in nature and have specific tests in order to ground an action, versus constitional jurisprudence.

Wishbone Ash

OTK wrote: »

What does it mean when one union is recognised by the employer but the other is not?

In my main place of employment there are four trade unions, but only two are recognised by management. A recognised union has negotiating rights while an unregognised union doesn't. In everyday terms, it means that management will meet representatives of those unions which it recognises for discussions on industrial relations, disciplinary matters etc.

Unrecognised unions operating in conjunction with recognised unions usually 'go with the flow' or take a neutral stance during disputes.

Overheal

what conditions are necessary for a union to become recognised? Ive heard things like over 50% of the workforce, etc. but sure if theres 4 (or even 2) that would not seem to apply?

OTK

Tom Young wrote: »

Can you explain your economic tort specifically please? These are quite limited in nature and have specific tests in order to ground an action, versus constitional jurisprudence.

My layman's idea of an economic tort is some wrong perpetrated so as to damage a business that could be grounds for an action to recover costs. I would have thought that economic torts would include being locked out of a cartel, malicious release of trade secrets, and, maybe, stopping people going to work with a picket.

Wishbone Ash wrote: »

In my main place of employment there are four trade unions, but only two are recognised by management. A recognised union has negotiating rights while an unregognised union doesn't. In everyday terms, it means that management will meet representatives of those unions which it recognises for discussions on industrial relations, disciplinary matters etc.

Unrecognised unions operating in conjunction with recognised unions usually 'go with the flow' or take a neutral stance during disputes.

I was wondering whether 'recognition' of a union is a legal concept or even a legal obligation. (And the same questions that Overheal is asking). Anyhow I found something interesting here where the recent Ryanair union recognition case is discussed:
http://aboutlkshields.net/htmdocs/publications/newsletters/update19/update19_02.htm

Wishbone Ash

OTK wrote: »

I was wondering whether 'recognition' of a union is a legal concept or even a legal obligation

There is no legal obligation on an employer to 'recognise' a trade union even if all the employees are members.

Victor

Wishbone Ash wrote: »

There is no legal obligation on an employer to 'recognise' a trade union even if all the employees are members.

So held in the case of Nolan Transport. A right to associate has a corresponding right to disassociate.

Wishbone Ash

Victor wrote: »

So held in the case of Nolan Transport. A right to associate has a corresponding right to disassociate.

....and they are now the largest road haulage company in the country!


Maybe that's where they got the "Moving On" motto!

Tom Young

OTK wrote: »

My layman's idea of an economic tort is some wrong perpetrated so as to damage a business that could be grounds for an action to recover costs. I would have thought that economic torts would include being locked out of a cartel, malicious release of trade secrets, and, maybe, stopping people going to work with a picket.

Well in general terms you are correct.

Cartels are dealt with under Competition law - While in laymans terms a union has the characteristics of a cartel its quite different to a commercial or cozy cartel which would be based around an undertaking or legal entity.

Trade Secrets is also covered off by statute and Company law.

The issue of stopping people going to work is a choice that those involved or not involced in action can make, thus the unprescribed right to associate or dissociate.

OTK wrote: »

I was wondering whether 'recognition' of a union is a legal concept or even a legal obligation. (And the same questions that Overheal is asking). Anyhow I found something interesting here where the recent Ryanair union recognition case is discussed:
http://aboutlkshields.net/htmdocs/publications/newsletters/update19/update19_02.htm

Per the last poster. Companies can choose not to recognise unions but unions in Ireland e.g., SIPTU, CWU etc. However these groups have massive traction and very able permanent and contract staff to bring claims to the Employment Appeals Tribunal and Labour Court/s on behalf of members and summons effectively a non-recognising company to attend to answer a case or issue placed before it. Many multinationals have learned to their cost that ignorance of Irish unions leads to trouble and indeed engagement in talks and informal processes or negotiation and even partial recognition can soften the blow that a strike or other action can potentially cause.

Tom

OTK

Tom Young wrote: »

Cartels are dealt with under Competition law - While in laymans terms a union has the characteristics of a cartel its quite different to a commercial or cozy cartel which would be based around an undertaking or legal entity

Are you referring to the Competion Act 2002? Section 4 of this Act outlaws

Competition Act 2002 wrote:

all agreements between undertakings, decisions by associations of undertakings and concerted practices which have as their object or effect the prevention, restriction or distortion of competition in trade in any goods or services

'Undertaking' is defined in the Act as :

Act wrote:

“undertaking” means a person being an individual, a body corporate or an unincorporated body of persons engaged for gain in the production, supply or distribution of goods or the provision of a service.

Now to me it looks like a worker is an individual engaged for gain in the provision of a service. One purpose of a trade union is to limit competition for the supply of labour to an employer and thus sell that labour for a higher price than would be achieved in an open market. Indeed three of the characteristics of an illegal agreement in the Act seeme like the day to day activities of any trade union:

Act wrote:

(a) directly or indirectly fix purchase or selling prices or any other trading conditions

Are negotiated wage agreements not a form of price fixing for the supply of labour?

(b) limit or control production, markets, technical development or investment,

maximum hours per working week, refusal to operate new machinery

(c) share markets or sources of supply

Union demaraction rules that prevent person of job title X doing job Y (nurses not allowed to change lightbulbs)

Tom Young wrote:

The issue of stopping people going to work is a choice that those involved or not involved in action can make, thus the unprescribed right to associate or dissociate.

What is an 'unprescribed right'? Is a strike a choice for union members? Some unions oblige members to strike when asked and expel those who don't. http://news.independent.co.uk/media/article267576.ece I presume this happens in Ireland too.

Tom Young

I think you possibly should possibly go and read Meskill v CIE.

The Competition Act, while I cited it and seems to fit is not the same of applicable in the case of union's so we should not make that mistake.

A prescribed right is one that is prescriptive in nature stemming from the law or the constitution and unprescribed right is the converse, but in the case of unions and membership has emerged over time. A strike is not a choice for union members per se, but the right to be a member of a union is.

Tom