It’s not only the unions that talk about the waves made by the Supreme Court’s decision in Unite’s case against HA O’Neill a couple of years back. Legal experts are talking about them too.
Last week, at an Irish Congress of Trade Unions event, former chair of the Labour Court Kevin Duffy argued that Chief Justice Donal O’Donnell’s observation in his judgment on the case that “the right to form unions would be of little benefit if the activities of the union and its members were to be regarded as presumptively unlawful” might have the effect of undermining the Government’s claim that it cannot legislate to require employers to engage in collective bargaining in certain circumstances due to constitutional issues.
It is, Duffy suggested, simply a question of political will.
On Friday, Cathy Maguire SC pointed to another of the judgments in the case, that of Judge Brian Murray, as having hinted at the possibility of a right to strike being recognised at some point in the future.
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“It is arguably implicit in Article 40.6.1 iii of the Constitution that the right to form trade unions implies in turn at least some – perhaps as yet undefined – zone of freedom for those unions to organise and campaign,” he wrote.
The observation, Maguire made clear, did not do anything to actually recognise such a right but, she said, Murray “raised the question” that it (the constitutional right of freedom of association) “may in the future be held to encompass a right to strike”.
The more immediate benefit to unions already appears to be evidenced in the absence, since the court delivered its decision two years ago, of cases taken by employers seeking injunctions intended to thwart strike action.
The court’s “definitive interpretation” had the effect of “correcting the almost universal approach”, she said, to considering such applications under the existing legislation, sections of which “should be read to give effect to the protection of unions and their members which the Acts were clearly intended to provide,” wrote O’Donnell
With employers having apparently concluded they are less likely to get injunctions, they appear to have more or less abandoned the tactic and, said Maguire, “it appears the court’s intention that these matters be played out on the picket line and not in the Four Courts has been fulfilled”.
