Crucial case on trade union recognition and balloting

In May 1998, in a key trade union recognition case, the Supreme Court upheld an appeal by Ireland's largest union against Nolan Transport, which had been awarded an estimated IEP 1.3 million in damages and costs against the union in 1994. The case is likely to to have an impact on the wider issue of union recognition and individual rights to independent representation, as well as requiring trade unions to ensure that balloting is independently monitored.

The main Supreme Court judgment in a major trade union recognition case involving a small Wexford-based company, Nolan Transport. and the Services Industrial Professional and Technical Union (SIPTU) was delivered by Mr Justice Murphy on 15 May 1998 with Mr Justice O' Flaherty delivering a shorter summing-up of the key issues raised in the case. All five members of the Court were in agreement with the two judgments. The issue of costs was set aside to be dealt with at a later date.

The case and the new ruling

A 22-month old strike at Nolan Transport ended in December 1994 when Justice Barron of the High Court ordered SIPTU (Ireland's largest trade union) to pay more than IEP 1.3 million in damages and costs to Nolan Transport after the company instituted proceedings against the union, one of its officials and two truck drivers. The High Court found that the element of the dispute related to the alleged dismissal of the two drivers "was not pursued bona fide to get them back to work but as part of a policy to take all the drivers into membership". As a lawful dispute did not exist, the legal protections of the 1990 Industrial Relations Act did not apply. The High Court also found that the result of the secret strike ballot"did not reflect the votes actually cast and was deliberately false".

Reviewing the High Court's 1994 finding, Mr Justice Murphy of the Supreme Court said in May 1998 that the main issues were:

  1. whether or not a trade dispute existed; and
  2. whether or not the union was entitled to authorise strike action having regard to the manner in which the secret ballot was conducted and the manner in which those voting actually voted.

The Supreme Court found that the employees at the centre of the dispute themselves believed they had been dismissed, although the company had ample opportunity to inform them otherwise. Even if a union conducts an irregular strike ballot, it can still claim immunity under the 1990 Act from claims for damages by employers. Mr Justice O' Flaherty also noted, however, that the ballot was a "shambles", a major problem being that no impartial person was present to ensure it had been properly carried out: "If there is one lesson that can be learned from this litigation it is surely that the requirements for having a proper secret ballot should always be observed." Ideally, an independent person should be brought in to ensure that this happens, he added.

Agreeing with the main judgment delivered by Mr Justice Murphy, Mr Justice O' Flaherty placed the Court's ruling in a broader social and economic context. He observed that "at this stage in our development, this country should be an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily."

With regard to whether a trade dispute had existed, Mr Justice O 'Flaherty noted: "the men, at the very least, had good grounds for thinking themselves dismissed." However, he observed that both the employer and the striking employees conducted themselves in a manner best calculated to bring about the maximum degree of misunderstanding as to their respective positions. Any form of conciliation, arbitration, or dispute resolution was "zealously avoided", he said.

The 1994 High Court finding that the union was conducting its affairs with the sole purpose or motive to obtain a foothold in the company and unionise the whole workforce could not stand, said Mr Justice O' Flaherty. If that had been the union's motive, it went about it in the worst way possible. He could not help thinking he was living in another era on reading through the papers on the case, and he continued that: "Unions are now very powerful bodies, with highly trained professional staff. The days of the 'class struggle' should be regarded as long gone. On the other hand, employers have an obligation to accord trade unions a measure of respect; representing as they do the rights of the workers."

An unfortunate aspect of the Nolan case, observed Mr Justice O 'Flaherty, was that the employer approached it on the basis that either all of the workers joined the trade union or none of them joined and that the decision was to be made by the majority of the workers. In a key passage, he continued: "But the constitutional right of each worker to join or not to join a trade union is well established in Irish law. No worker can be forced to join a trade union against his will and likewise no worker can be denied his right to join a trade union which is prepared to accept him. These are matters of constitutional right and are not capable of being resolved by a majority vote unless all the workers have freely agreed to have the said matter so resolved."

The judge added that the state, representing the "rest of us ordinary citizens and taxpayers" has a very keen interest in seeing to the harmonisation of industrial relations. "We all stand to lose too much and we should be an example to other countries at this stage in our development regarding the avoidance of and the speedy resolution of conflict." The whole point of the 1990 Act was to streamline this area of the law: "To copper-fasten the special privileges of trade unions in many respects; to give them additional rights and, indeed, it is the whole point of s. 14 of the Act, which provides for the necessity of having in the rules of a trade union the requirement to hold a secret ballot before a strike is called. This is primarily designed to strengthen the role of union management against the actions of maverick members."

Commentary

The outcome of the Supreme Court judgment sends out a clear message to trade unions to ensure that they conduct secret ballots in an open, transparent and accountable fashion. The case also raises the issue of an individual's right to be represented by a trade union of his or her choice.

As things stand, the constitutional right of an individual to be represented by a trade union is effectively cancelled out by the right of an employer to refuse to recognise a union. Whether the Nolan case implies that employers must now accommodate the right of the individual to representation is only likely to be decided when the Court has the opportunity to consider the issue again. (Brian Sheehan, IRN and John Geary, UCD)

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