Limits on Right to Associate
Murtagh Property v. Cleary, a policy or general rule which seeks to prevent an employer from employing men or women on the ground of sex only was held to be prohibited by the Constitution. Picketing aimed at achieving unconstitutional discrimination was restrained. It constituted a breach of the right to work and earn a livelihood in breach of the Constitution.
Picketing may contravene a person’s constitutional right. See the Educational Company of Ireland v. Fitzpatrick, Murtagh and Cleary and Crowley v. Ireland. In the latter case, industrial action by INTO was held to contravene pupils, it involved blocking away primary school, was held to contravene children’s constitutional rights to primary education.
In Aughey v. Ireland, the constitutional guarantee of association was held to be legitimately restricted in the case of An Garda Síochána. This was justified on the basis of state security considerations.
A number of Garda representative bodies have been established, and members may join one of these organisations. Industrial action is prohibited. There is no constitutional right to have a union recognised. The EU Charter of Fundamental provides that workers and representatives must at the appropriate levels be guaranteed information and consultation in good time in cases and under conditions provided by community law and national practice.
Closed Shop & Union Membership
In Educational Company of Ireland v. Fitzpatrick, the Supreme Court held that picketing seeking to compel prohibit employment of nonunion members was an unlawful breach of constitutional rights of dissociation and elect not to join in association.
In Meskell v. CIE, damages were awarded to an employee who was dismissed for failure to be a union member. In Becton Dickinson and Lee, the Supreme Court majority, the employer had entered an agreement with two trade unions to require that employees would become members of the unions concerned.
When employees refused to move to the Union, a strike was called. Walsh J indicated that term in the contract of employment regarding trade union membership was not void under the Constitution, but do not express a view on how far and in what circumstances a person can contract doubt of a constitutional right.
Regulation of Union
In NUR v. Sullivan provisions of the Trade Union Act, 1941 were held to be unconstitutional. They sought to provide for an exclusive negotiating licence for unions within a particular group. The licence was to be granted by a tribunal and was to last for five years. It was held that the prohibition on employees joining other unions was contrary to their Rights of Association.
The Act does not prohibit all association, but it purports to limit the rights of citizens to join one or more prescribed associations. Any such limitation undoubtedly deprives the citizens of a free choice of residence with whom he shall associate with… the Constitution states the rights of citizens to form associations or unions in an empathic and it seems impossible to harmonise this language with a law which prohibits the forming of associations and unions and allows the citizen only to join prescribed associations and union.
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