Trade Unions
Trade Union Act 1975
Number 4 of 1975
TRADE UNION ACT, 1975
AN ACT TO AMEND THE LAW RELATING TO THE AMALGAMATION OF TRADE UNIONS AND THE ALTERATION OF THE NAME OF A TRADE UNION, TO PROVIDE FOR TRANSFER OF ENGAGEMENTS FROM ONE TRADE UNION TO ANOTHER, TO AMEND AND EXTEND THE TRADE UNION ACTS, 1871 TO 1971, AND TO PROVIDE FOR OTHER MATTERS CONNECTED WITH THE AFORESAID MATTERS. [22nd April, 1975]
BE IT ENACTED BY THE OIREACHTAS AS FOLLOWS:
Interpretation.
1.—(1) In this Act—
“the amalgamating unions” and “the amalgamated union”, in relation to a proposed amalgamation, mean respectively the trade unions proposing to amalgamate and the trade union which is to result from the proposed amalgamation;
“Minister” means the Minister for Labour;
“Registrar” means the Registrar of Friendly Societies;
“trade union”, save where the context otherwise requires, has the same meaning as in the Trade Union Acts, 1871 to 1971;
“the transferor trade union” and “the transferee trade union”, in relation to a proposed transfer of engagements, mean respectively the trade union proposing to transfer its engagements and the trade union proposing to accept them.
(2) For the purposes of sections 3 and 4 “member”, in relation to a trade union, means a member for the time being entitled to any benefits provided out of the funds of the trade union but, where the rules of a trade union specify the persons (or class of persons) entitled to vote on a particular matter (or class of matter), “member” means those persons.
(3) In this Act—
(a) a reference to a section is to a section of this Act unless it is indicated that reference to some other enactment is intended,
(b) a reference to a subsection is to the subsection of the section in which the reference occurs, unless it is indicated that reference to some other section is intended.
Amalgamations of, and transfers of engagements by, trade unions.
2.—(1) Subject to this Act, two or more trade unions may amalgamate, whether with or without a division or dissolution of the funds of one or more amalgamating union.
(2) Two or more trade unions shall not amalgamate unless in the case of each amalgamating union a resolution, approving an instrument of amalgamation which has been approved by the Registrar, is passed on a vote taken in a manner satisfying the conditions specified in section 3 (1).
(3) Subject to this Act, a trade union may transfer its engagements to another trade union.
(4) A trade union shall not transfer its engagements to another trade union unless—
(a) the other union has undertaken to fulfil the engagements, and
(b) in the case of the transferor union, a resolution, approving an instrument of transfer which has been approved by the Registrar, is passed on a vote taken in a manner satisfying the conditions specified in section 3 (1).
Conditions for amalgamations or transfers.
3.—(1) The conditions referred to in section 2 are the following:
(a) every member of the union shall be entitled to vote on the resolution and the voting shall be by secret ballot;
(b) every member of the union shall be allowed to vote without interference or constraint and, so far as is reasonably possible, shall be given a fair opportunity of voting;
(c) the method of voting shall consist of the marking of a voting paper by the person voting;
(d) the union shall take all reasonable steps to ensure that, not less than seven days before voting on the resolution begins, every member of the union has received a notice in writing complying with subsection (3);
(e) not less than seven days before voting on the resolution begins, the union shall cause to be published in at least one daily newspaper published in the State notice (in such form as may be prescribed by regulations made by the Minister for Industry and Commerce under section 13) of the holding of the vote.
(2) Before a resolution to approve an instrument of amalgamation or transfer is voted on by the members of a trade union, the trade union shall satisfy the Registrar that the steps it proposes to take comply with subsection (1) (d).
(3) The notice referred to in subsection (1) (d) shall—
(a) either set out in full the relevant instrument or give sufficient account of it to enable a recipient of the notice to form a reasonable judgment of the main effects of the proposed amalgamation or transfer,
(b) state, if it does not set out the instrument in full, where copies of the instrument may be inspected,
(c) comply with any regulations under this Act, and
(d) be approved by the Registrar on being satisfied that it complies with the foregoing requirements of this subsection.
(4) The relevant instrument shall comply with the requirements of any regulations under this Act for the time being in force and relating thereto.
Instrument of Amalagation
Approval of documents by Registrar.
4.—Before a resolution to approve an instrument of amalgamation or transfer is voted on by the members of a trade union, the instrument and the notice referred to in section 3 (1) (d) shall be submitted to the Registrar, who shall approve them on being satisfied that they comply with the requirements of section 3.
Voting on resolution to approve amalgamation or transfer.
5.—Where a vote is taken by a trade union on a resolution to approve an instrument of amalgamation or transfer, a simple majority of the votes recorded shall be sufficient to pass the resolution notwithstanding anything in the rules of the union.
Registration of instrument of amalgamation or transfer.
6.—An instrument of amalgamation or transfer shall not take effect before it has been registered by the Registrar under this Act, and shall not be so registered before the expiration of a period of six weeks beginning with the date on which an application for its registration is lodged with the Registrar.
Application of sections 2 to 6.
7.—Sections 2 to 6 shall apply to every amalgamation or transfer of engagements notwithstanding anything in the rules of a trade union concerned.
Power to alter rules for purpose of transfer of engagements.
8.—(1) Where a trade union proposes to transfer its engagements to another trade union and an alteration of the rules of the transferee union is necessary to give effect to the instrument of transfer, the committee of management or other governing body of the transferee union shall, notwithstanding anything in the rules, have power by memorandum in writing to alter the rules so far as may be necessary to give effect to the instrument of transfer.
(2) An alteration of the rules of a trade union under this section shall not take effect unless or until the instrument of transfer takes effect.
(3) This section shall not apply in the case of a trade union the rules of which expressly exclude the application to that union of this section.
Amalgamations and transfers by members of certain trade unions.
9.—Where, in the case of a body of persons which is a trade union under the law of another country and has its headquarters control situated in that country, a majority of the members of that body who are resident in the area comprising the State and Northern Ireland so decide, the members of that body who are so resident may, in accordance with this Act, amalgamate with or transfer their engagements to another trade union and shall, from the making of such a decision, be a trade union for the purpose of section 2.
Complaints to Registrar regarding resolutions.
10.—(1) A member of a trade union which passes or purports to pass a resolution approving an instrument of amalgamation or transfer may complain to the Registrar on one or more than one of the following grounds—
(a) that the manner in which the vote on the resolution was taken did not satisfy the conditions specified in section 3 (1),
(b) that the votes recorded in relation to the resolution did not have the effect of passing it.
(2) A complaint under this section lodged with the Registrar after the expiry of the period of six weeks beginning on the date on which an application for registration under section 6 is lodged with him shall not be entertained.
(3) Where a complaint under this section is made, the Registrar shall not register the relevant instrument under this Act until the complaint is finally determined under this Act.
(4) Where a complaint is made under this section, the Registrar may, after giving the complainant and the trade union concerned an opportunity of being heard, either dismiss the complaint or find it to be justified.
(5) Where the Registrar finds a complaint under this section to be justified, he shall make an order specifying what steps he requires to be taken before he will consider an application for registration under section 6, of the instrument concerned.
(6) The Registrar shall furnish to the complainant and the trade union concerned a statement of the reasons for a decision by him on a complaint under this section.
(7) The Registrar may from time to time by order vary an order under subsection (5), and after making an order under that subsection in relation to an instrument of amalgamation or transfer shall not entertain any application to register the instrument unless he is satisfied that the steps specified in the order (or, where it has been varied, in the order as varied) have been taken.
(8) The Schedule to this Act shall apply in relation to complaints under this section.
(9) Subject to subsection (10), the validity of a resolution approving an instrument of amalgamation or transfer shall not be questioned in any legal proceedings (except proceedings before the Registrar under this section or proceedings arising out of such proceedings) on any ground on which a complaint could be, or could have been, made to the Registrar under this section.
(10) In the course of proceedings on a complaint under this section the Registrar may, at the request of the complainant or of the trade union, state a case for the opinion of the High Court on a question of law arising in the proceedings, and the decision of the High Court on a case stated under this subsection shall be final.
(11) For the purposes of this section a complaint which is withdrawn shall be deemed to be finally determined at the time when it is withdrawn.
(12) An appeal shall lie to the High Court on a point of law against a decision of the Registrar under this section.
Disposal of property on amalgamation or transfer.
11.—(1) Subject to this section, where an instrument of amalgamation or transfer takes effect, the property held for the benefit of an amalgamating union or of a branch of such a union by the trustees of the union or branch, or for the benefit of a transferor trade union or of a branch of such a trade union by the trustees of the union or branch, shall without any conveyance, assignment or assignation vest on the instrument taking effect or on the appointment of the appropriate trustees, whichever is the later, in the appropriate trustees.
(2) Where any land of which the ownership is registered under the Registration of Title Act, 1964 , becomes vested by virtue of this section, the registering authority under that Act shall, upon payment of the appropriate fee, register the appropriate trustees in the appropriate register maintained under that Act as owner (within the meaning of that Act) of the land.
(3) Subsection (1) shall not apply to property excepted from the operation of this section by the instrument of amalgamation or transfer.
(4) In this section “the appropriate trustees” means—
(a) in the case of property to be held for the benefit of a branch of an amalgamated union or for the benefit of a branch of the transferee union, the trustees of that branch, unless the rules of the amalgamated union or transferee union provide that the property to be so held shall be held by the trustees of the union, and
(b) in any other case, the trustees of the amalgamated or transferee union.
Change of name of trade union.
12.—(1) Subject to this section, a trade union may change its name by any method of doing so expressly provided for by its rules or, if its rules do not expressly provide for a method of doing so, by adopting in accordance with its rules an alteration of the provision in them which gives the union its name.
(2) A change of name by a trade union shall not take effect until it is registered by the Registrar under this Act, and the Registrar shall not register a change of name if it appears to him that registration of the union under the proposed new name would be contrary to section 13 (3) of the Trade Union Act, 1871 .
(3) Where a trade union changes its name the change of name shall not affect any right or obligation of the union or of any of its members, and, notwithstanding the change of name, any pending legal proceedings may be continued by or against the trustees of the union or any other officer of the union who can sue or be sued on its behalf.
Regulations.
13.—(1) The Minister for Industry and Commerce may, with the consent of the Minister, make regulations for carrying this Act into effect.
(2) Without prejudice to the generality of subsection (1), regulations under this section may provide for all or any of the following:—
(a) applications to the Registrar under this Act;
(b) the registration under this Act of any document;
(c) the inspection of documents kept by the Registrar under this Act;
(d) the charging of fees in respect of such matters and of such amounts as may with the approval of the Minister for Finance be prescribed by the regulations;
(e) requiring any application for the registration of an instrument of amalgamation or transfer or a change of name to be accompanied by such statutory declarations or other documents as may be specified in the regulations;
(f) making provision as to the form or content of any document required by this Act or by the regulations to be sent or submitted to the Registrar and the manner in which any such document shall be signed or authenticated;
(g) authorising the Registrar to require notice to be given or published in such manner as he may direct of the fact that an application for registration of an instrument of amalgamation or transfer has been or is to be made to him.
Grants towards exceptional expenses of amalgamation or transfer.
15.—Whenever two or more trade unions amalgamate or whenever a trade union transfers its engagements to another trade union, the Minister may, with the consent of the Minister for Finance, make to one or more of those trade unions out of moneys to be provided by the Oireachtas a grant of such amount as the Minister thinks fit, towards such expenses as he is satisfied were exceptional and were incurred by that trade union or those trade unions as a result of, in the course of, or in contemplation of such amalgamation or transfer.
Restriction on holding and grant of negotiation licence
17.—(1) Notwithstanding Part II of the Act of 1941 and section 2 of the Act of 1971, a body of persons which is a trade union under the law of another country and has its headquarters control situated in that country shall not hold or be granted a negotiation licence under that Part unless, in addition to fulfilling the relevant conditions specified in section 7 of the Act of 1941 and section 2 of the Act of 1971, it fulfils the condition specified in subsection (2).
(2) The condition referred to in subsection (1) is that the trade union concerned has a committee of management or other controlling authority every member of which is resident in the State or Northern Ireland and which is empowered by the rules of that trade union to make decisions in matters of an industrial or political nature which arise out of and are in connection with the economic or political condition of the State or Northern Ireland, are of direct concern to members of the trade union resident in the State or Northern Ireland and do not affect members not so resident.
(3) This section, so far as it applies to an existing holder of a negotiation licence, shall come into operation on such date as the Minister fixes for that purpose by order.
(4) In this section—
“the Act of 1941” means the Trade Union Act, 1941;
“the Act of 1971” means the Trade Union Act, 1971.
Expenses.
18.—The expenses incurred in the administration of this Act shall, to such extent as may be sanctioned by the Minister for Finance, be paid out of moneys provided by the Oireachtas.
Short title and collective citation.
19.—(1) This Act may be cited as the Trade Union Act, 1975.
(2) The Trade Union Acts, 1871 to 1971, and this Act may be cited together as the Trade Union Acts, 1871 to 1975.
SCHEDULE
Provisions Supplemental to section 10
Section 10 (8).
1. On a complaint made under section 10 the Registrar may—
(a) require the attendance of the complainant or of any officer of the trade union and may, on the application of the complainant or any such officer, require the attendance of any person as a witness;
(b) require the production of any documents relating to the matters complained of;
(c) administer oaths and take affirmations and require the complainant, any officer of the trade union or any person attending as a witness to be examined on oath or affirmation;
(d) grant to the complainant or to any officer of the trade union such discovery as to documents and otherwise, or such inspection of documents, as might be granted by the High Court;
(e) order the whole or any part of the expenses of hearing the complaint, as certified by him, to be paid either out of the funds of the trade union or by the complainant; and
(f) order the trade union to pay to the complainant out of the funds of the union, or the complainant to pay to the union, either a specified sum in respect of the costs incurred by the complainant or the union (as the case may be) or the taxed amount of those costs.
2. A person who, on the application of any person, is required to attend before the Registrar as a witness in proceedings on a complaint under section 10 shall be entitled to be paid by the person on whose application he is so required—
(a) such sum in respect of loss of time and travelling expenses as he would be entitled to on being served with a summons to attend as a witness in the High Court, and
(b) if he duly attends, a sum equal to any further allowances to which he would be entitled if attending as a witness in proceedings in the High Court.
3. (1) Subject to subparagraph (2) of this paragraph, if any person without reasonable excuse fails or refuses to comply with a requisition of the Registrar under paragraph 1 (a) to 1 (c) of this Schedule or any order of the Registrar made in pursuance of paragraph 1 (d) of this Schedule, he shall be liable on summary conviction to a fine not exceeding fifty pounds or to imprisonment for a term not exceeding three months, or to both such fine and such imprisonment.
(2) A person shall not be convicted of an offence under this paragraph by reason of failure or refusal on his part to comply with a requisition to attend as a witness before the Registrar unless any sum to which he is entitled under paragraph 2 (a) of this Schedule has been paid or tendered.
(3) Any costs required by an order under paragraph 1 (f) of this Schedule to be taxed may be taxed in the High Court according to the scale prescribed by rules of that court for proceedings in that court as may be directed by the order or, if the order gives no direction, by that court.
(4) Any sum payable by virtue of an order under paragraph 1 (e) or 1 (f) of this Schedule shall, if the High Court so orders, be recoverable by execution issued from that court or otherwise as if payable under an order of that court.
Amendment of Trade Union Acts, 1941, 1971 and 1975
Change of deposit consequent on change in number of members.
20.—(1) Within one month after the 31st December each year a trade union which is the holder of a negotiation licence shall send to the Minister a statement of the number of its members on the 31stDecember and, if it is necessary to increase or reduce a deposit under Part II of the Trade Union Act, 1941, as amended by section 2 of the Trade Union Act, 1971, by any amount in order to make it equal to the appropriate sum, such trade union shall, not later than four months after the 31st December, increase such deposit by such amount or apply for the return out of such deposit of such amount (as the case may require).
(2) Subsection (1) shall take effect on 1st January, 1991.
(3) The “appropriate sum” in subsection (1) shall be the appropriate sum under—
(a) section 7 (2) of the Trade Union Act, 1941, or
(b) section 2 (4) of the Trade Union Act, 1971, or
(c) section 21 (3) or section 21 (4) of this Act,
for the time being, as the case may be.
(4) If, in relation to any trade union required to send a statement under this section, there is a failure to send a statement or there is sent a wilfully false statement, such of the members and officers of the trade union as consent to or facilitate the failure to send a statement or the sending of the false statement and, in the case of a trade union registered under the Trade Union Acts, 1871 to 1975, the trade union itself shall each be guilty of an offence under this section and shall be liable on summary conviction thereof to a fine not exceeding £500.
(5) Save in pursuance of this section, a trade union shall not, on account of a change in the number of its members, change the amount of a deposit under Part II of the Trade Union Act, 1941, as amended by section 2 of the Trade Union Act, 1971.
(6) Sections 14 and 16 of the Trade Union Act, 1941, shall apply in relation to a deposit made with the High Court under this Act or under the Trade Union Act, 1971, as it applies to a deposit under the Trade Union Act, 1941.
Amendment of section 2 of Trade Union Act, 1971.
21.—(1) In this section “the Act of 1971” means the Trade Union Act, 1971.
(2) Section 2 (1) (b) of the Act of 1971 (which refers to the minimum membership for the grant of a negotiation licence) is hereby amended, in relation to applications for a negotiation licence made after the passing of this Act, by the substitution for “500” of “1,000”.
(3) In respect of a body of persons applying under section 9 (1) of the Trade Union Act, 1941, for a negotiation licence after the passing of this Act, “the appropriate sum” referred to in section 2 (1) (a) of the Act of 1971 shall be the sum appropriate to the number of members of the body in accordance with the Third Schedule to this Act or the sum deposited and kept deposited in the High Court before such passing in accordance with the said section 2 (1) (a) and the Schedule to the Act of 1971, as the case may be.
(4) Whenever after the passing of this Act a trade union is formed consisting wholly or mainly of two or more trade unions which have been amalgamated and each of which, immediately before the amalgamation, had been the holder of a negotiation licence, “the appropriate sum” referred to in the said section 2 (1) (a) shall be such sum as the Minister may determine in respect of the union so formed.
Amalgamations and transfers.
22.—(1) Section 15 of the Trade Union Act, 1975 (which refers to a grant towards expenses of amalgamations or transfers) is hereby amended by the deletion of “were exceptional and”.
(2) Whenever two or more trade unions engage in an unsuccessful attempt to amalgamate or to effect a transfer of engagements from one union to another the Minister may, with the consent of the Minister for Finance, make to one or more of those trade unions out of moneys to be provided by the Oireachtas a grant of such amount as the Minister thinks fit towards such expenses as he is satisfied were incurred, within the period of two years immediately prior to the failure, by that trade union in the course of, or in contemplation of, such attempted amalgamation or transfer.
(3) Where an instrument of amalgamation takes effect the registration of any amalgamating union shall cease to have effect and on the granting of a negotiation licence to the new union any negotiation licence held by an amalgamating union shall cease to have effect.
(4) Where an instrument of transfer of engagements takes effect the registration of any transferor union and any negotiation licence held by such union shall cease to have effect.
S.I. No. 53/1976 –
Trade Union Amalgamations Regulations, 1976.
I, JUSTIN KEATING, Minister for Industry and Commerce in exercise of the powers conferred on me by section 13 of the Trade Union Act, 1975 (No. 4 of 1975), with the consent of the Minister for Labour, hereby make the following Regulations:
GENERAL
1 ..
1. These Regulations may be cited as the Trade Union Amalgamations Regulations, 1976, and shall come into operation on the 21st day of February, 1976.
2 ..
2. In these Regulations—
“the Act” means the Trade Union Act, 1975 (No. 4 of 1975);
“duly authenticated” means bearing the Registrar’s signature and the date of signing;
“Schedule 1” means Schedule 1 to these Regulations;
“Schedule 2” means Schedule 2 to these Regulations;
“Schedule 3” means Schedule 3 to these Regulations.
3 Approval of Proposed Instruments and Notices
3. (1) An application pursuant to section 4 of the Act for approval of a proposed instrument of amalgamation or transfer shall be submitted to the Registrar—
( a ) in the case of a proposed amalgamation, by one of the amalgamating trade unions, or
( b ) in the case of a proposed transfer of engagements, by the transferor trade union,
and shall in each case be accompanied by two copies of the proposed instrument each signed as required by paragraph 6 of Schedule 1 or paragraph 4 of Schedule 2 (as may be appropriate) and by a copy of the rules of each trade union which would be a party to the proposed instrument.
(2) Two copies of the notice referred to in section 3 (1) (d) of the Act and required by section 4 of the Act to be submitted to the Registrar shall be so submitted.
(3) The Registrar shall indicate his approval under section 4 of the Act of such instrument or notice by returning one copy to the trade union which submitted it, marked with the word “Approved” or the word “Ceadaithe” and duly authenticated.
4 Contents of Instrument of Amalgamation or Transfer
4. (1) The instrument of amalgamation shall contain the particulars and information specified in Schedule 1.
(2) An instrument of transfer shall contain the particulars and information specified in Schedule 2.
5 Contents of Notice of Vote
5. The notice required by section 3 (1) (e) of the Act shall be in the form specified in Schedule 3 to these Regulations.
6 Application for Registration of Instruments
6. (1) A trade union proposing to have an instrument of amalgamation registered under section 6 of the Act shall apply to the Registrar on a form provided by him for that purpose, and the application shall be signed by three members of the committee of management or other governing body, and the secretary, of each of the amalgamating trade unions.
(2) An application under paragraph (1) shall be accompanied by two copies of the instrument, two copies of the proposed rules of the amalgamated trade union and a statutory declaration on a form provided by the Registrar for that purpose from each of the amalgamating unions.
(3) Each copy of proposed rules furnished under paragraph (2) shall be signed by the secretary of each of the amalgamating unions.
(4) An application for registration of an instrument of transfer under section 6 of the Act shall be signed by three members of the committee of management or other governing body, and the secretary, of each of the trade unions concerned and shall be submitted to the Registrar by the transferee trade union on a form provided by him for that purpose.
(5) An application under paragraph (4) shall be accompanied by two copies of the instrument, by statutory declarations, on forms provided by the Registrar for that purpose, by the secretaries of the transferor trade union and transferee trade union respectively and by two copies of any amendments to the rules of the transferee trade union since the date of the relevant submission under Regulation 3(1).
(6) Where in his opinion it is necessary to do so in order to ensure adequate publicity for the purpose of section 10 (2) of the Act, the Registrar may, not later than seven days after he receives the application for registration of the instrument, require notice to be given or published, in such manner and form and before such date as he may direct, of the fact that the application for registration has been or is to be made to him.
(7) Before registering under section 6 of the Act an instrument furnished under this Regulation, the Registrar shall satisfy himself that the proposed rules of the amalgamated trade union or transfee trade union (as may be appropriate) are in no way inconsistent with the terms of the instrument.
(8) Where he registers under section 6 of the Act an instrument furnished to him under this Regulation, the Registrar shall return one copy to the address specified for that purpose on the form referred to in paragraph (1) or to the transferee trade union (as may be appropriate), marked with the word “Registered” or the word “Cláraithe” and duly authenticated.
7 Registration of Change of Name
7. (1) A trade union proposing to have a change of name registered under Section 12 of the Act shall apply to the Registrar in duplicate on a form provided by him for that purpose, and the application shall be signed by three members of the committee of management or other governing body, and the secretary of the trade union.
(2) An application under paragraph (1) shall be accompanied by a statutory declaration on a form provided by the Registrar for that purpose by the secretary of the union as to the method in which the change of name was effected.
(3) Upon approving the change of name the Registrar shall return to the trade union one copy of the application under this Regulation, marked with the word “Registered” or the word “Cláraithe” and duly authenticated.
SCHEDULE 1.
Regulation 4 (1)
CONTENTS OF INSTRUMENT OF AMALGAMATION.
1. The instrument shall state that it is an instrument of amalgamation between the trade unions named therein as the amalgamating trade unions, and that on the coming into operation of the instrument the members of the amalgamating trade unions will become members of the amalgamated trade union and be subject to that union’s rules.
2. The instrument shall either set out the proposed rules of the amalgamated trade union or state who are the persons authorised to draw up those rules.
3. If the instrument does not set out the proposed rules it shall contain a summary of what those rules will provide with regard to the following matters:—
(i) the name and principal purposes of the amalgamated trade union;
(ii) the conditions of admission to membership;
(iii) the structure of the amalgamated trade union;
(iv) the method of appointing and removing its governing body and principal officials and of altering its rules;
(v) the contributions and benefits applicable to members of the amalgamating trade unions.
4. The instrument shall specify any property held for the benefit of any of the amalgamating trade unions or for the benefit of a branch of any of those unions which is not to be vested in the appropriate trustees and shall state the proposed disposition of any such property.
5. Without prejudice to section 6 of the Act, the instrument shall state the date on which it is to take effect.
6. The instrument shall be signed by three members of the committee of management or other governing body and the secretary of each of the amalgamating trade unions.
SCHEDULE 2.
Regulation 4 (2)
CONTENTS OF INSTRUMENT OF TRANSFER.
1. The instrument shall state that it is an instrument of transfer of the engagements of the trade union named therein as the transferor trade union to the trade union named therein as the transferee trade union and that on the coming into operation of the instrument the members of the transferor trade union will become members of the transferee trade union and be subject to that trade union’s rules.
2. The instrument shall:—
(i) state what contributions and benefits will be applicable to members of the transferor trade union under the transferee trade union’s rules;
(ii) if members of the transferor trade union are to be allocated to a branch or section or to branches or sections of the transferee trade union, give particulars of such allocation or the method by which it is to be decided;
(iii) state whether before registration of the instrument the transferee trade union’s rules are to be altered in their application to members of the transferor trade union and, if so, the effect of any alterations;
(vi) without prejudice to section 6 of the Act, state the date on which the instrument is to take effect.
3. The instrument shall specify any property held for the benefit of the transferor trade union or for the benefit of a branch of the transferor trade union which is not to be vested in the appropriate trustees and shall state the proposed disposition of any such property.
4. The instrument shall be signed by three members of the committee of management or other governing body and the secretary of each of the trade unions.
SCHEDULE 3.
TRADE UNION ACTS, 1871 to 1975.
Notice of Vote on Amalgamation/Transfer of Engagements*
The ……………………………………………… (here insert name of trade union) hereby gives notice of the holding of a vote on the proposed amalgamation with/transfer of engagements to *…………………………………………………… ……………………………………. (here insert name of other trade union(s) concerned).
*Strike out whichever is inapplicable.
GIVEN under my Official Seal this 18th day of February, 1976.
JUSTIN KEATING,
Minister for Industry and
Commerce.
The Minister for Labour consents to the making of the foregoing Regulations.
GIVEN under my Official Seal this 20th day of February, 1976.
MICHAEL O’LEARY,
Minister for Labour.
EXPLANATORY NOTE.
The effect of these Regulations, which come into force on 21st February, 1976, is to make provision as to the manner in which trade unions are required to obtain the Registrar’s approval to proposed instruments of amalgamation or transfer and proposed notices for the information of members in connection therewith; as to the content and registration of such instruments; and as to the approval of changes of name.
Cases
Iarnrod Eireann v. Holbrooke
[2001] IESC 7
FENNELLY J.
“Both the legislative history and the common sense of the matter support the view of the learned trial judge, which I would paraphrase and adapt as being that the legislative intent was to relieve against the obvious hardship which would have resulted from depriving employees in small firms of the right to negotiate directly their pay and conditions of work with their employer. As he pointed out the deposit required for a negotiation licence was the then not inconsiderable sum of £1,000. As noted above, the minimum figure is now £20,000. Employees within such firms may wish to or may be persuaded by their employer to exercise their constitutional right not to join a registered trade union.
12
I think that the amendment made by section 2 of the 1942 Act was designed to cover a casus omissus arising from section 6 of the 1941 Act. The 1942 amendment mirrors, for employees, what was already contained for employers in the act of 1941. The 1941 exceptions include at section 6(3)(a):
“A body which carries on negotiations for the fixing of wages or other conditions of employment of its own (but no other) employees,”
The act of 1942 adds:
“A body all the members of which are employed by the same employer and which carries on negotiations for the fixing of wages or other conditions of employment of its own members but of no other employees,”
The underlined words are common to the two definitions.
The 1941 version had omitted to provide for the employee counterpart of the employer conducting negotiations in-house. It was obviously desirable that employee bodies be not left exposed while employers were covered by an exception.
In each case the activity is implicitly consensual, which explains the use of the present tense. This does not, of course, mean that the exception was intended to cover only bodies existing at the passing of the act. It can apply to any bodies which “carry on negotiations” whenever in the future by the consent of both sides negotiations actually take place.
On this basis, I consider ILDA cannot be an “excepted body”. I would uphold the view of the learned trial judge even if for rather different reasons.
It is not necessary, therefore, to consider in any detail the other points made by the plaintiff. I do not think that ILDA was seeking to negotiate on behalf of other employees. Nor do I think that any term of employment that its members belong to a trade union could affect the question of whether they were, in fact, members of a body defined by section 2 of the act of 1942.
……From the passing of the act of 1941, a trade union could seek to negotiate agreements envisaged by section 55(1), like any other agreement, only if it was the holder of a negotiation licence. ILDA was not.
National Union of Journalists v. Sisk
Transfer
Finlay C.J.
[1992] 2 IR 171
S.C.
Finlay C.J.
20th June 1991
This is an appeal by the applicants against the dismiss by order of the High Court made on the 31st July, 1990, by Keane J. of their application for relief by way of judicial review. The first applicant is a trade union registered in the United Kingdom, with members in Ireland, and is the holder of a negotiation licence issued pursuant to Part II of the Trade Union Act, 1941, as amended. The second applicant is a trade union registered in Ireland pursuant to the Trade Union Acts, 1871 to 1975. In essence, the relief being sought by the applicants is to compel the respondent, the Registrar of Friendly Societies, to carry out the statutory duty imposed upon him by s. 4 of the Trade Union Act, 1975, with regard to a proposal by the second applicant to transfer its engagements to the first applicant.
The respondent has declined on request to carry out this duty on the grounds that the first applicant is not a “trade union within the meaning of those words as contained in the relevant provisions of the 1975 Act”. This refusal and the reason for it was upheld by the decision of Keane J.
Section 1, sub-s. 1 of the Act of 1975 provides inter alia:
“‘Trade union’, save where the context otherwise requires, has the same meaning as in the Trade Union Acts, 1871 to 1971.”
The definition of “trade union” contained in the Trade Union Acts, 1871 to 1971, is to be found in s. 2 of the Trade Union Act, 1913, which reads as follows:
“(1) The expression “trade union” for the purpose of the Trade Union Acts, 1871 to 1906, and this Act, means any combination, whether temporary or permanent, the principal objects of which are under its constitution statutory objects: Provided that any combination which is for the time being registered as a trade union shall be deemed to be a trade union as defined by this Act so long as it continues to be so registered.
(2) The Registrar of Friendly Societies shall not register any combination as a trade union unless in his opinion, having regard to the constitution of the combination, the principal objects of the combination are statutory objects, and may withdraw the certificate of registration of any such registered trade union if the constitution of the union has been altered in such a manner that, in his opinion, the principal objects of the union are no longer statutory objects, or if in his opinion the principal objects for which the union is actually carried on are not statutory objects.
(3) Any unregistered trade union may, if they think fit, at any time without registering the union apply to the Registrar of Friendly Societies for a certificate that the union is a trade union within the meaning of this Act, and the Registrar, if satisfied, having regard to the constitution of the union and the mode in which the union is being carried on, that the principal objects of the union are statutory objects, and that the union is actually carried on for those objects, shall grant such a certificate, but the Registrar may, on an application made by any person to him for the purpose, withdraw any such certificate if satisfied, after giving the union an opportunity of being heard, that the certificate is no longer justified.
(4) Any person aggrieved by any refusal of the Registrar to register a combination as a trade union, or to give a certificate that an unregistered trade union is a trade union within the meaning of this Act, or by the withdrawal under this section of a certificate of registration, or of a certificate that an unregistered union is a trade union within the meaning of this Act, may appeal to the High Court, or in Scotland to the Court of Session, within the time and in the manner and on the conditions directed by rules of court.
(5) A certificate of the Registrar that a trade union is a trade union within the meaning of this Act shall, so long as it is in force, be conclusive for all purposes.”
The statutory objects mentioned in sub-s. 1 of s. 2 of the Act of 1913 are defined in sub-s. 2 of s. 1 of that Act in the following terms:
“(2) For the purposes of this Act, the expression ‘statutory objects’ means the objects mentioned in section sixteen of the Trade Union Act Amendment Act, 1876, namely, the regulation of the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business, and also the provision of benefits to members.”
I am satisfied that the true construction of s. 2 of the Act of 1913, read in conjunction with s. 1, is that the definition of the trade union is contained only in the first portion of sub-s. 1 of s. 2, and in sub-s. 2 of s. 1, and can be stated as being as follows:
Any combination, whether temporary or permanent, the principal objects of which are under its constitution the regulation of the relations between workmen and masters, or between workmen and workmen, or between masters and masters, or the imposing of restrictive conditions on the conduct of any trade or business, and also the provision of benefits to members.
The other provisions contained in s. 2 of the Act of 1913 provide two different methods of establishing that any particular combination comes within the definition of a trade union provided in the manner which I have indicated. The first is that if a trade union is registered with the Registrar of Friendly Societies, then so long as that registration remains in force that combination is deemed to come within the defintion of a trade union. The second is that a combination may obtain a certificate from the Registrar of Friendly Societies for the purposes of the Act, though not registering itself with him, and so long as that certificate remains unrevoked it is taken as conclusive proof that the combination comes within the definition contained in the section. It is, however, of significant importance, having regard to the issues which have developed on this appeal, that, in my view, ss. 1 and 2 of the Act of 1913 which are clearly incorporated into the Act of 1975 by s. 1, sub-s. 1 thereof, do not purport to define a trade union, for the purposes of
the Acts, as being either a registered or certified trade union, but define it in relation to what it is and what its principal objects are.
Applying this interpretation of ss. 1 and 2 of the Act of 1913 to the facts established in this case to the satisfaction of the learned trial judge, it seems quite clear that prima facie the first applicant is a combination, the principal objects of which clearly come within the definition which I have outlined.
It therefore becomes necessary to ascertain whether the context in which the words “trade union” are used in the material provisions of the Act of 1975, or any other circumstance or general principle of the interpretation of statutes, would exclude the first applicants from the meaning of trade union as contained in the relevant sections of the Act of 1975.
The relevant sections of the Act of 1975
“2. – (3) Subject to this Act, a trade union may transfer its engagements to another trade union.
(4) A trade union shall not transfer its engagements to another trade union unless-
(a) the other union has undertaken to fulfil the engagements, and
(b) in the case of the transferor union, a resolution, approving an instrument of transfer which has been approved by the Registrar, is passed on a vote taken in a manner satisfying the conditions specified in section 3 (1).
3. – (1) The conditions referred to in section 2 are the following:
(a) every member of the union shall be entitled to vote on the resolution and the voting shall be by secret ballot;
(b) every member of the union shall be allowed to vote without interference or constraint and, so far as is reasonably possible, shall be given a fair opportunity of voting;
(c) the method of voting shall consist of the marking of a voting paper by the person voting;
(d) the union shall take all reasonable steps to ensure that, not less than seven days before voting on the resolution begins, every member of the union has received a notice in writing complying with subsection (3);
(e) not less than seven days before voting on the resolution begins, the union shall cause to be published in at least one daily newspaper published in the State notice (in such form as may be prescribed by regulations made by the Minister for Industry and Commerce under section 13) of the holding of the vote.
(2) Before a resolution to approve an instrument of amalgamation or transfer is voted on by the members of a trade union, the trade union shall satisfy the Registrar that the steps it proposes to take comply with sub-section (1) (d).
(3) The notice referred to in sub-section (1) (d) shall-
(a) either set out in full the relevant instrument or give sufficient account of it to enable a recipient of the notice to form a reasonable judgment of the main effects of the proposed amalgamation or transfer,
(b) state, if it does not set out the instrument in full, where copies of the instrument may be inspected,
(c) comply with any regulations under this Act, and
(d) be approved by the Registrar on being satisfied that it complies with the foregoing requirements of this sub-section.
(4) The relevant instrument shall comply with the requirements of any regulations under this Act for the time being in force and relating thereto.
4. – Before a resolution to approve an instrument of amalgamation or transfer is voted on by the members of a trade union, the instrument and the notice referred to in section 3 (1) (d) shall be submitted to the Registrar, who shall approve them on being satisfied that they comply with the requirements of section 3.”
The judgment of the High Court
The learned trial judge dismissed the application, holding for a number of different reasons that the first applicant did not come within the provisions of the Act of 1975 because it was neither registered under the Trade Union Acts in the State nor the holder of a certificate pursuant to s. 2 of the Act of 1913. Those reasons which were the basis upon which the respondents resisted this appeal, were stated in his judgment as follows:
1. “The definition of ‘trade union’ in the Act of 1913 is not confined in its terms to combinations formed in the United Kingdom and carrying on their activities in that jurisdiction. I think, however, that it is clear that, unless the specific context otherwise indicates, it should be so confined. There is nothing, in my view, in the Acts which would justify the court in imputing to the legislature at any stage an intention to bring within its scope bodies properly described as trade unions under the laws of another country but having no connection of any sort with this country.”
The learned trial judge in the course of his judgment notes that counsel on behalf of the applicants, in the course of the argument in the High Court apparently conceded that if the argument was correct it followed inexorably that the expression “trade union” must be given what the learned trial judge described as “this extraordinarily unrestricted meaning”.
2. “While no authorities were opened to me either for or against the proposition, it seems to me a sensible approach in construing legislation to assume that, in the absence of any express indication to the contrary, the legislation is not intended to have extra-territorial effect.”
3. The provisions of the Trade Union Act, 1941, were seen by the learned trial judge as indicating a recognition by the Oireachtas that there was a distinction between Irish trade unions and foreign trade unions which may lawfully operate in this jurisdiction by becoming authorised trade unions.
4. Finally, the learned trial judge concluded that the question of the interpretation of the words “trade union” within the relevant sections of the Act of 1975 was put beyond doubt by s. 9 of the Trade Union Act, 1975, which reads as follows:
“9. Where, in the case of a body of persons which is a trade union under the law of another country and has its headquarters control situated in that country, a majority of the members of that body who are resident in the area comprising the State and Northern Ireland so decide, the members of that body who are so resident may, in accordance with this Act, amalgamate with or transfer their engagements to another trade union and shall, from the making of such a decision, be a trade union for the purpose of section 2.”
With regard to these reasons for the decision of the learned trial judge, which essentially form the issues which were debated in the appeal before this Court, I have come to the following conclusions. I do not consider, notwithstanding the concession apparently made by counsel on behalf of the applicant in the High Court, which was not repeated by counsel on behalf of the applicant in this Court, that an inevitable consequence of the submission that “trade union” within the meaning of ss. 2, 3 and 4 of the Act of 1975, may include the applicants in this case, is that the provisions of those sections would become applicable to any trade union in any part of the world, even though it did not have any connection with Ireland. Dealing with the question in the instant case, namely, a question of a proposed transfer of engagements, it is quite clear that the terms of s. 2 of the Act of 1975 refers to engagements in this country. That arises from the fact that the entire scheme of the relevant portions of the Act of 1975 is to protect the rights of members against an unfair imposition of a transfer of engagements or an unfair presentation of a proposal for a transfer of engagements, and the members involved are clearly members within the State. To take a single example: the provisions of s. 3, sub-s. 1 (e) requiring publication in at least one daily newspaper published in the State could only be applicable if the provisions being dealt with by the section are provisions affecting the rights of members of trade unions who are within the State.
Furthermore, I am satisfied that in the particular instance, as occurs in this case, of a transfer of engagements to a union which is not registered in the State, that the provision contained in s. 2, sub-s. 4 (a) of a precondition that the union has undertaken to fulfil the engagements, must, in the case at least of a trade union consisting of a combination of workmen, ordinarily involve a capacity to negotiate with employers within the State. Having regard to these considerations, which is to say the nature of the engagements involved in the section, that they are to be performed within the State, and the rights of members of trade unions specifically protected by the sections who are members within the State, I am satisfied that as a broad proposition the submission that a trade union not registered under the Trade Union Acts, but having a presence in and members belonging to it within the State, and as occurs in this particular instance having a negotiation licence, comes within the provisions of the Act of 1975, does not lead to any inevitable conclusion that trade unions outside the State and having no concerns in the State must also be brought within the sections. Not only does that conclusion, it seems to me, meet the objection based on the concept of an inappropriate consequence of the finding for which the applicants contend, but it also removes from the case any question of interpreting the sections as having an extra-territorial effect.
The remaining main issue on which the learned trial judge concluded that the section could not apply to the first applicant was the provisions of s. 9 of the Act of 1975. It seems to me that there is an error in equating that section with what was described as the converse of what is contended for by the applicants in this case. That section deals not with the transfer of engagements from one trade union to another, but rather with the rights of members of a trade union which is a trade union under the law of another country, to amalgamate with or transfer their engagements to another trade union, something which is distinct from the provisions contained in ss. 2 and 3 of the Act which provide for the transfer of engagements and, in certain instances, for amalgamation between two trade unions.
The right of the citizen to form associations and unions, guaranteed by Article 40, s. 6, sub-s. 1 (iii) of the Constitution, is, of course, subject to the enactment of laws for the regulation and control of the exercise of that right in the public interest. The right of members of a trade union to vote in favour of a transfer of engagements by that trade union to another, whether one registered within the State or not, would appear to me to be a necessary and valuable expansion of the general right to form trade unions and belong to them. If ss. 2, 3 and 4 of the Act of 1975 were to be construed as prohibiting members of a trade union within the State from voting by an appropriate majority to transfer the engagements of that trade union to another trade union operating within the State but not registered under the Acts, this would necessarily be a regulation or control of the exercise of that right and would fall to be justified in the public interest. It does not seem to me, therefore, appropriate that the legislature should be interpreted as having by some form of implication, as distinct from a very express provision, regulated, controlled or restricted this particular right. I am, therefore, driven to the conclusion that the terms of the provisions of s. 9 of the Act of 1975 could not properly be said to be a clear or unambiguous indication by the legislature of an intention to exclude from the terms of ss. 2, 3 and 4 of the Act a trade union operating with a negotiation licence and with members within the State though not registered in it.
I am satisfied, therefore, that this appeal should be allowed and that the applicants are entitled to the appropriate declaration that they come within the provisions of the relevant sections of the Act of 1975. If the Registrar of Friendly Societies is prepared, as I assume he will be, to give an undertaking to carry out his duties under the Act of 1975 in regard to the proposed transfer of engagements no order of mandamus will be necessary.
Hederman J.
I agree with the judgment of the Chief Justice.
McCarthy J.
Before expressing his conclusion Keane J. in the High Court formulated the question as constituting the issue between the parties as follows:
“Can a body which is a trade union under the law of a foreign country, carries on its principal activities in that country, is not registered as a trade union pursuant to the Trade Union Acts, 1871 to 1982, and has not been granted a certificate pursuant to s. 2, sub-s. 3 of the Trade Union Act, 1913, be regarded as a ‘trade union’ within the meaning of the Trade Union Acts, 1871 to 1982, and, specifically, within the meaning of s. 2, sub-s. 3 of the Act of 1975?”
He answered the question in the negative. The key conclusion was that the National Union of Journalists is not “another trade union”within the meaning of s. 2 and, in particular, sub-ss. 3 and 4 of s. 2 of the Act of 1975.
The Act of 1975 along with the Trade Union Acts, 1871 to 1971, must be read in the light of the constitutional guarantee expressed in Article 40, s. 6, sub-s. 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.”
In the course of argument, it was accepted by counsel for the unions that s. 2 is such a law for the regulation and control in the public interest
of the exercise of the right to form associations and unions. Therefore, I express no view on that question.
“Trade Union”
This expression was defined under the Acts of 1871 (s. 23), 1876 (s. 16) and 1913 (s. 2). The resultant definition, incorporating the statutory objects, is as follows:
The expression “trade union”, for the purpose of the Trade Union Acts, 1871 to 1982, means any combination, whether temporary or permanent, the principal objects of which are under its constitution the regulation of the relations between workmen and masters, or between workmen and workmen, or between master and masters, or the imposing of restrictive conditions on the conduct of any trade or business, and also the provision of benefits to members, whether such combination would or would not, if the Trade Union Act, 1871, had not been passed, have been deemed to have been an unlawful combination by reason of some one or more of its purposes being in restraint of trade,
provided that the Acts shall not affect:
1. any agreement between partners as to their own business;
2. any agreement between an employer and those employed by him as to such employment;
3. any agreement in consideration of the sale of the goodwill of a business or of instruction in any profession, trade, or handcraft;
provided that any combination which is for the time being registered as a trade union shall be deemed to be a trade union as defined by this Act as long as it continues to be so registered.
Sub-section 5 provides that a certificate of the Registrar that a trade union is a trade union within the meaning of the Act shall, so long as it is in force, be conclusive for all purposes.
Thus, there appear to be two categories of trade unions contemplated by the cumulative effect of the definition section: registered trade unions and certificated trade unions; the proviso is confined to a combination that is registered as a trade union; s. 2, sub-ss. 1 and 5 contemplates unregistered unions. The Trade Union Act, 1941, provides for the grant of a negotiation licence and restrictions on such grant. With certain exceptions, it restricts negotiations on conditions of employment to a body which is the holder of a negotiation licence: (s. 6).
The holder of a negotiation licence (“an authorised trade union”) must be either registered under the Trade Union Acts or, if not so registered, be a trade union under the law of another country with its headquarters control situated in that country: (s. 7). The National Union of Journalists is such a trade union and, therefore, qualified to hold a negotiation licence, as it does. It follows that the National Union of Journalists is a union falling within the second category of union contemplated by s. 2 of the Act of 1913.
The judgment in the High Court
Under the heading “Conclusion” Keane J. said at p. 179 of the report:
“There is nothing, in my view, in the Acts which would justify the court in imputing to the legislature at any stage an intention to bring within its scope bodies properly described as trade unions under the laws of another country but having no connection of any sort with this country. Yet, as Mrs. Robinson conceded, if her argument is correct, it follows inexorably that the expression ‘trade union’ must be given this extraordinarily unrestricted meaning: there is no warrant in any of the Acts, as she accepted, for confining their operation to trade unions operating in the Republic of Ireland [recte Ireland] and the United Kingdom alone. Either they are intended to apply to unions formed in this jurisdiction or their provisions are of universal applicability. It cannot, in my opinion, have been the intention of the legislature that they should have such universal applicability.”
If such concession were made in the High Court, it was not made on the hearing of this appeal where Mr. Rogers argued that if a foreign registered union maintains a presence – has a significant membership – within the jurisdiction, then it falls within the second category under s. 2 of the Act of 1913.
Keane J., having quoted s. 9 of the Act of 1975, said that it did not apply to this case:
“[I]f anything, it applies to the converse. It enables a foreign trade union with members in this country and Northern Ireland to effect a transfer of the engagements of those members to another trade union where a majority of them wish this to happen. If, however, the argument advanced by Mrs. Robinson is correct, this section was wholly superfluous: a foreign trade union, being already a ‘trade union’ within the meaning of s. 1, sub-s. 1 of the Act would in any event have been entitled to transfer its engagements to another union.”
This, in my view, is not correct. Section 9 does not provide for a converse instance. The converse of the present case would be if a foreign union (a trade union under the law of another country) wished to amalgamate with or transfer its engagements to another trade union within the meaning of s. 2 of the Act of 1913; s. 9 provides for a break away group who wish to amalgamate with or transfer their engagements to another trade union and, on the making of such a decision, shall be a trade union for the purposes of s. 2 of the Act of 1975.
In my view, s. 9 is an instance in which the context otherwise requires that “trade union” have the same meaning as in the Trade Union Acts, 1871 to 1971: (see the definition in the Act of 1975). But that is not in respect of a trade union under the law of another country, since that is not a requirement of context but expressly stated, but rather the constitution of a trade union contemplated by the latter part of the section. Keane J. went on to point to what he described as the absurdities and inconveniences which would flow from the view other than that which he held. Having regard to the need for a presence by the union within the jurisdiction, I do not regard these fears as having any realistic foundation. In my view, the right of free association guaranteed by Article 40 of the Constitution should not be lightly hampered; if the enforcement of that right requires a more liberal construction of restrictive legislation, then so be it.
I would allow this appeal, set aside the order of the High Court and make a declaration in the form set out in the judgment of the Chief Justice. In examining the application, the Registrar took counsel’s opinion as to his powers under the Act; his conclusion, as guided by counsel, that he was not entitled to examine the instrument of transfer under s. 4 was in good faith, but incorrect. In the circumstances, he had no option but to refuse to entertain the application. Throughout, he acted with great propriety.
O’Flaherty J.
I agree with the judgments which have been delivered.
Egan J.
I agree.
Post Office Workers Union v The Minister for Labour
Negotiation Licence
1981 No. 645Sp
High Court
30 July 1981
[1981] I.L.R.M. 355
CARROLL J
The Association fulfils one of the conditions laid down in s. 7(1)(a) of the 1941 Act in that it was registered under the Trade Union Acts on 30 May 1980. It also has deposited with the High Court the appropriate sum (under s. 2(4) of Trade Union Act, 1971) which in this case is now £5,000. Prior to 1971 an applicant who fulfilled one of the conditions of s. 7(1)(a) and who kept the deposit required by s. 7(1)(b) on deposit in the High Court would have been entitled as of right under s. 10 of the 1941 Act to a negotiation licence on application made under s. 9. The holders of such licences (and their officials and members) are under s. 11 of the 1941 Act the only persons entitled to the protection of ss. 2, 3 and 4 of the Trade Disputes Act, 1906.
But the statutory provisions relating to the granting of negotiation licences were amended by the Trade Union Act, 1971. In addition to fulfilling a condition in s. 7(1)(a), of the 1941 Act it also had to fulfil the following conditions set out in s. 2(1) of the 1971 Act.
(a) That, not less than eighteen months before the date of the application for the negotiation licence it: (i) notifies the Minister, the Congress and any trade union, of which any members of the body are members, of its intention to make the application, (ii) causes to be published in at least one daily newspaper published in the State a notice in the prescribed form (within the meaning of the Act of 1941) of its intention to make the application, and (iii) deposited and kept deposited with the High Court the appropriate sum and
(b) that it shows to the satisfaction of the Minister that, both at a date not less than eighteen months before the date of the application for the negotiation licence and at the date of that application, it had not less than 500 members resident in the State.
If these conditions are fulfilled an applicant is entitled to a negotiation licence under s. 10 of the 1941 Act. If an applicant does not fulfil those conditions the only remedy is to apply to the High Court for a declaration under s. 3 of the 1971 Act which provides as follows:
(1) A body of persons (in this section referred to as the applicant) which fulfils a a condition specified in s. 7(1)(a) of the Act of 1941, and which has deposited and keeps deposited with the High Court the appropriate sum (within the meaning of s.2 of this Act) but otherwise does not fulfil a condition specified in s.2 of this Act, may apply to the High Court for a declaration under this section.
(2) The High Court, after hearing any evidence adduced by the applicant, the Minister, the Congress and any other trade union, may at its discretion declare that the granting of a negotiation licence to the applicant would not be against the public interest.
(3) On the making of a declaration under this section the applicant shall be deemed for the purposes of s.10 of the Act of 1941, to have been shown to the satisfaction of the Minister to be an authorised trade union.
The Association have not fulfilled any of the conditions in either (a) or (b) of s. 2(1). It did not notify the Minister eighteen months before an application, of its intention to make the application. It did not publish any notices in a newspaper. It has made the appropriate deposit of £5,000 but this has not been lodged for 18 months. The lodgment was made on 25 July 1980. It does not have 500 members resident in the State.
*352
Total membership is close to 490 but about 80 are resident in either North American or Europe. So the membership for the purposes of sub-paragraph (b) would be 410 or possible 420. These figures are in excess of those furnished by the Minister for Labour, the explanation being that the Minister’s list only comprised Aer Lingus employees and, further, did not take account of members who paid independently and therefore were not shown in the check-off list supplied.
The reasons for not complying appear to be as follows. The Association was expelled or disaffiliated by the WUI in 1978 and did not break that affiliation voluntarily. It tried to get affiliation to the ITGWU and got no reply despite repeated requests. It tried to get affiliation to Congress and tried to get Congress to mediate, all without success. It is now over three years since it lost its affiliation. To have given 18 months notice as required by s. 2(a) would have delayed matters further and it was urgent to regularise its position.
As a consequence of not having a negotiation licence itself and lacking affiliation to a union that had one, the Association is under the following disabilities:
(i) It is committing an offence by negotiating wages and working conditions for its members. This could be got over if they had ‘excepted body’ status.
(ii) It does not have the protection of ss 2, 3 and 4 of the Trades Disputes Act, 1906. However, Mr Sheehy, the Executive Secretary, said the right to strike is of no consideration to the Association. This is borne out by its record which is admirable from the point of view of the employers and the consuming public.
(iii) It has been excluded from the new Central Representation Council set up in Aer Lingus to co-ordinate trade union views. The council will deal (inter alia) with forward planning of staff structures. The Association feel that it is most important that it be allowed to have membership. The council will be a major forum to meet and act for the Association’s members.
Mr Sheehy said that if the Association had a negotiation licence the other trade unions would be forced to let it join the council. He felt there was goodwill among the ordinary members of the other unions evidenced recently by a vote of 17% of all first preference votes for the Association’s candidates for election to the board of the company under the new scheme of worker participation, even though the Association only has about 4.5% of the total staff. He maintained that any animosity towards the Association came from the officials and committees of the trade unions involved, not from the members.
The Minister opposes the granting of a negotiation licence to the Association. Mr Fitzgerald, Principal Officer in the Department of Labour, swore the affidavit on the Minister’s behalf and expanded on that affidavit in court.
It is and has been for a number of years the policy of successive Governments to try and keep the number of trade unions down and to rationalise the whole trade union movement.
To put the matter in a larger context, Ireland has 85 trade unions for 400,000 workers, Germany has 16 trade unions for 6.5 million workers, Denmark has 56 trade unions for 1 million workers and Holland has 64 trade unions for 1.5 million workers.
The policy has been to discourage the formation of new unions with licences *353 and encourage amalgamations. This policy is supported by the ICTU.
The Minister was aware of all the matters of which evidence was given in court with the qualification that he probably was not aware of the extent of the hostility and ill feeling shown to the Association by the other trade unions involved, particularly in relation to the Central Representation Council.
Mr Fitzgerald explained that the 18 month period in s.2 was important. It was designed as a cooling off or interim period to enable negotiations to proceed during that period in the hope that a new licence would not in the end be necessary.
The Association had not explored every avenue. He said that, with flexibility, problems could be solved. The Minister could make available the services of a Rights Commissioner to enable negotiations to be carried out.
The possibility of the Minister granting ‘excepted body’ status was not ruled out completely but Mr Fitzgerald made it clear that the Minister was not offering it.
In his affidavit Mr Fitzgerald states at paragraph 19 that he was informed by Mr John O’Neill, Industrial Relations Manager in Aer Lingus, that the Association was treated by Aer Lingus as the recognised body for negotiation on pay and conditions of the Superintendent group within the company and so far as the Association continued to hold the majority of workers in that grade it would maintain this position.
I do not see how this statement can be reconciled with the provisions of s. 6(1) of the 1941 Act which prohibits negotiations, failing a negotiation licence or excepted body status.
The 1971 Act was designed to cut down the number of negotiation licences granted. The figures quoted show that in this it has been extremely successful. Between 1941 and 1971, 120 licences were granted. Since 1971 only four were granted and two of these were replacement licences. There are 63 licensed workers trade unions and of these, 16 have less than 500 members and five have less than 100 members.
I accept that it is in the public interest that the number of trade unions should be kept as low as possible and therefore trade unions with small membership should not proliferate. I do not think I should consider exercising the court’s discretion in favour of this application unless I am first satisfied that the applicant has exhausted all the possibilities for negotiating affiliation to another trade union with a negotiation licence.
In cross-examination, affiliation with two possible unions was mentioned, the Pilots Union and ASTAMS. Mr Sheehy said the Pilots Union was only for pilots and they would not be interested, but in fact no approach appears to have been made to them. ASTAMS is a union representing management. Mr Sheehy said that they had an initial reaction favourable to take in the Association but this was not pursued as the Association did not want to be responsible for introducing another union into the airport.
The 18 month period and notice under s. 2 is being ignored completely by the Association. Admittedly they do not have the necessary number of members to fulfil condition (b) in s. 2(1) but this does not seem to be a good reason why *354 no attempt should be made to comply with the requirements of sub-s. (1)(a) (i) and (ii). In my view it is not correct to treat the 18 month notice period as not applying at all if the application is made to the High Court where the number of resident members is below 500. The section mentions non-compliance with ‘a condition’. It does not say that if there is non-compliance with condition (b) it is not necessary to comply with conditions (a) (i), (ii) or (iii) either.
If formal notice under s. 2(b)(i) were given and notices published under s. 2(a)(ii), the Minister, Congress and any trade union concerned would know there is a period of 18 months in which negotiations can proceed and possible solutions be explored. The Minister could offer the services of a Rights Commissioner. There must be an appreciable difference between negotiations taking place in the context of a notice of intention to apply having been served and any negotiations which might take place after litigation had commenced.
I am not prepared to exercise my discretion and declare that the grant of a negotiation licence to the Association would not be against the public interest because I am not satisfied that every reasonable avenue has been explored to achieve affiliation to another trade union with a negotiation licence. By ignoring the 18 months notice required by s. 2(a) the Association have failed to invoke the period envisaged by the Act during which all concerned may strive to overcome their differences by negotiation.
Apparently this is the first application to the courts under s. 3. The requirements of sub-s. (2) which provides that the High Court may, in its discretion, make the appropriate declaration after hearing any evidence adduced by the applicant, the Minister, Congress and any other trade union, must be complied with.
The Association joined the Minister and Congress as respondents but sought no order against Congress. The evidence offered by Congress was minimal. Their attitude was identical with that of the Minister and they supported the basic idea that there should be control of the number of unions. There was no evidence offered by any trade union.
On the evidence adduced, I was satisfied that I should not exercise my discretion in favour of the Association. But, if on the evidence I had felt a case had been made to exercise the discretion, I could not have done so without being satisfied that any trade union who wanted to give evidence had been given an opportunity to do so. There was no evidence that any other trade union had notice of the application.
For the guidance of any future applicants under this section I consider that the appropriate way to comply with the requirements of s. 3(2) is to apply to the court for directions in relation to the evidence to be adduced, prior to the hearing.
I do not believe that it was the intention of the Oireachtas that in every case where Congress or any trade union wished to give evidence, each should be entitled to appear as a notice party and be represented by counsel. An applicant under this section should not be deterred from making it by the prospect of having to pay (if unsuccessful) separate legal costs to all those who had chosen to give evidence. There seems to be no reason why there should be a multiplicity *355 of parties when all the section requires is that evidence be adduced.
In this case I do not consider it was necessary to join Congress as a party. Their evidence could have been adduced under the aegis of the Minister as sole respondent. In any future application for directions, the court can decide in any particular case whether it is necessary or desirable that there should be separate representation for Congress or any other trade union.
I am impressed by the evidence of the high standard of loyalty to their employer and concern for the general public which the Association have shown over the years. Even though I cannot exercise my discretion in their favour I wish them success in their efforts to seek affiliation to another union or alternatively in achieving ‘excepted body’ status through the Minister’s action.
Moran v. Workers Union of Ireland
Gavan Duffy J. 485
[1943] 1 I.R.485
Supreme Court
SULLIVAN C.J. :
Feb. 3.
In the year 1936 the plaintiffs, James Moran and Timothy Moran, who trade under the name of James Moran & Son, became members of the Chimney Cleaners Section, Number 3 Branch, of the Workers’ Union of Ireland, a registered Trade Union. In the month of May, 1939, the plaintiffs, being then members of that Section, tendered for the work of cleaning the chimneys of the Vocational Technical Schools and their tender was accepted. A complaint was subsequently made to the Committee of that Section that the plaintiffs had tendered for that work at a lower price than that authorised by the Section, and as a result of that complaint the plaintiffs were by a letter, dated the 3rd June, 1939, signed by the defendant, John Rooney, Secretary of the Section, summoned to attend before the Committee on the 6th June. On the 5th June the plaintiffs wrote to the General Secretary of the Union, Mr. James Larkin, saying that they did not understand why they had been summoned to attend before the Committee as the matter in question was their concern alone, and had nothing to do with anybody else. On the 22nd June the General Secretary of the Union wrote to the plaintiffs as follows:
“Dear Sirs,
Having been formally summoned to appear before your Committee and having failed to attend, your position in relation to your membership of the Chimney Cleaners Section of the above Union was under consideration by the Committee of the Section at their meeting on Tuesday, 6th instant. It was then reported to the Committee by the Secretary that you were in arrears in your payments of contributions to the amount of 18s. 6d. Under Rule 12 any member who fails to pay his contributions, etc., in respect of a period of 26 weeks lapses from membership. You are now officially notified that you have lapsed from membership of the Chimney Cleaners Section of the Workers’ Union of Ireland, and are no longer considered a Trade Union member.”
On the 5th December, 1939, the plaintiffs instituted this action in which they claim, inter alia, a declaration that each of them was on the 22nd June, 1939, and still is a member of the Union. The action was heard by Gavan Duffy J., and on the 31st October, 1941, he gave judgment in favour of the plaintiffs, and made an order declaring that each of the plaintiffs was on the 6th June, 1939, and was at the date of the order, a member of the Chimney Cleaners Section of the defendant Union, and ordering the defendant Union to pay to the plaintiffs their costs of the action. From that order the defendants, the Workers’ Union of Ireland, have taken this appeal.
The letter of the 23rd June alleges that the plaintiffs had lapsed from membership of the Union by reason of the operation of Rule 12, that is, Rule 12 of the Rules of the Union which were registered on the 3rd June, 1936. Under Rule 94 of those Rules the contributions payable by each of the plaintiffs was 26 shillings a year payable at the rate of 6d. a week.
Rule 12 (a) provides:
“If a member fails to pay his contributions, levies, special levies and fines in respect of a period of 26 weeks, he shall thereupon lapse from membership of the Union. He may be re-admitted to membership by the Committee of the Branch or Section wherein his membership lapsed, on payment of such fine (not exceeding the sum of £5) as such Committee may fix.”
The first matter of fact that was in controversy at the hearing of this action was whether each of the plaintiffs had, prior to the 22nd June, 1939, failed to pay his contributions in respect of a period of 26 weeks within the meaning of that Rule; and in order to determine that matter it was necessary in the first instance to ascertain the meaning of the phrase “in respect of a period of 26 weeks.”
The learned Judge held that to constitute a period of 26 weeks there must be 26 consecutive weeks.
I do not doubt that, strictly speaking, period means a a time that runs continuously unbroken by any interval, but I think that it may not unreasonably bear a different meaning. When the Rule speaks of a failure to pay contributions in respect of a period of 26 weeks, it contemplates, I think, a failure to pay 26 weekly subscriptions irrespective of whether the weeks are consecutive or not, and describes the total number of weeks in respect of which default has been made as constituting a period of 26 weeks. A consideration of some of the other Rules would tend to support that interpretation. The use of the word”consecutive”the meaning of which is plain and unambiguous in Rules 62, 120, 124 and 126 (b) affords some indication that the draughtsman of the Rules appreciated its effect and used it whenever it was appropriate to express the intention of the Rule. Rule 62 provides that the qualification for election as a member of the General Executive Committee shall be membership of the Union”for 3 consecutive years.” Rule 120 provides that, when a member who is in dispute with his employers has obtained other work “for 4 consecutive weeks,” he shall be deemed to be no longer involved in such dispute. Rule 126 (b)makes provision for a member who has become incapacitated after he has completed “8 consecutive years’ membership.”I refer to those Rules merely as examples of the use of the word “consecutive” when it was intended that the years or weeks mentioned in a rule should run consecutively, and, if the matter rested there, it might fairly be said that the word “period” is used in other rules with the same intention. But in Rule 124, sub-sections 1 and 2 provide that on the death of a member funeral benefit at prescribed rates shall be paid “after 52 consecutive weeks’ membership and payment of contributions, special levies and fines in respect of a period of 52 weeks,” and at half those rates “after 26 consecutive weeks membership and payment of contributions, levies, special levies and fines in respect of a period of 26 weeks.”
These provisions seem to me to indicate that a distinction was intended between the “consecutive weeks” during which membership existed and the “period” of weeks in respect of which payments were made, and, as the number of weeks in each case is the same, that distinction can only be that in the latter case the weeks need not be consecutive.
I am therefore of opinion that in that Rule the word”period” does not necessarily mean a time that runs continuously, and, in the absence of any indication to the contrary, that word should bear the same meaning in all the Rules. It follows that in my opinion a member fails to pay his contributions in respect of a period of 26 weeks, within the meaning of Rule 12 (a), if he fails to pay his contributions in respect of 26 weeks irrespective of whether those weeks were or were not consecutive.
The conclusion at which I have arrived as to the meaning of the word “period” in the Rules is supported by a consideration of the consequences that would follow if it were given a different interpretation. If a number of weeks do not constitute a “period” unless the weeks run consecutively, then:
(1) Under Rule 12 (a) a member does not lapse from membership of the Union provided he pays his contributions, etc., in respect of two weeks in each year, one the 26th week and the other the 52nd week.
(2) Under Rule 12 (b) a member continues to be “in benefit” so long as he pays his contributions, etc., in respect of one week in every eight weeks.
(3) Under Rule 97 a member cannot be fined if he pays his contributions, etc., in respect of one week in every eight weeks.
Such an interpretation of the Rules might well paralyse the working of the Union and cannot have been intended or contemplated.
The opinion that I have expressed as to the meaning to be attributed to the word “period” in Rule 12 (a) differs from that of Gavan Duffy J. But on the facts found by him the meaning of that word becomes immaterial in the present case if he was right in the view that he took as to the operation of that Rule in cases to which it applies.
That Rule provides that if a member fails to pay his contributions, etc., in respect of a period of 26 weeks “he shall thereupon lapse from membership of the Union. He may be re-admitted to membership by the Committee of the Branch or Section wherein his membership lapsed on payment of such fine (not exceeding the sum of Five Pounds) as such Committee may fix.”
The learned Judge held that the Rule made lapse automatic upon the failure of the member to pay, that he thereupon ceased to be a member of the Union.
It was contended on behalf of the respondents that the learned Judge erred in so holding, and that the true intent and meaning of the Rule was that the defaulting member would at the option of the Union lapse from membership. In support of that contention we were referred to cases in which a provision in an agreement that on the happening of a certain event the agreement should be void has been construed as meaning that in such event the agreement shall be voidable at the option of one only of the parties. The decisions in these cases, as explained by the House of Lords in New Zealand Shipping Co. Ltd., v. Société des Ateliers et Chantiers de France (1), were based on the principle that a party cannot take advantage of a state of things which he himself has produced in order to avoid his contract. It is contended that it would be inconsistent with that principle to construe the Rule in question in such a way as would enable a member by his own default to terminate his membership against the will of the Union.
I am not satisfied that the principle in question can legitimately be invoked to assist the Court in interpreting the Rule. In the cases that were cited if one of the parties could by his own act avoid the contract he would thereby escape a legal liability which would otherwise have attached to him, but membership of a Trade Union can impose no legal liability to pay any contribution to the funds of the Union, and can, in the present case at least, be terminated at any time by a member.
I see no reason why the words of the Rule should not bear what I consider to be their plain meaning, and I am therefore of opinion that the learned Judge’s interpretation of the Rule was right. The learned Judge found, and on this matter his findings are not challenged, that on the 31st December, 1938, the plaintiff, James Moran, had failed to pay his contributions in respect of 42 consecutive weeks, and the plaintiff, Timothy Moran, had failed to pay his contributions in respect of 33 weeks of which 29 were consecutive weeks. It follows that, whatever be the meaning of the word “period” in Rule 12 (a), each of the plaintiffs had before that date failed to pay his contributions in respect of a period of 26 weeks, and, if my interpretation of that Rule is correct, had by the operation of that Rule lapsed from membership of the Union.
The plaintiffs had ceased to be members of the Union, but, as provided by that Rule, they might be re-admitted to membership by the Committee of the Branch or Section of which they had been members on payment of such fine (not exceeding £5) as such Committee might fix. In view of that provision, and as the claim of the plaintiffs is that they were members of the Union on the 22nd June, 1939, it is necessary to consider the acts and conduct of the parties in the year 1939 prior to that date. As the relevant facts are not in controversy it is sufficient to say that they were accurately summarised by the learned Judge when he said in his judgment that:”Official after official, General Secretary, Branch Secretary, Section Secretary and authorised collector recognised, and in fact recognised in writing, the plaintiffs’ membership in 1939, and the Union’s official records expressly recognised it.”
In these circumstances the appellants cannot, in my opinion, be heard to say that the respondents were not members of the Union in the year 1939, andas the respondents had lapsed from membership prior to the 31st December, 1938this means that the appellants cannot be heard to say that the respondents were not re-admitted to membership in 1939.
It was contended on behalf of the appellants that Rule 12 (a) requires that a fine to be fixed by the Committee shall be paid as a condition of re-admission to membership, that no fine was paid by either of the respondents, and that the Committee cannot waive compliance with that Rule. I do not find it necessary to decide whether or not that contention is well founded as I think that the reasonable meaning of the provision in question is that if the Committee imposes a fine it shall not exceed the sum therein mentioned, and not that the Committee shall impose a fine in every case of re-admission to membership.
If, as I hold, the respondents must be regarded as persons who had been re-admitted to membership of the Union in 1939, it is I think clear that they then stood in the same position as new members. Their indebtedness to the Union in respect of their membership during the year 1938 could not be taken into account in estimating their liabilities to the Union on the 22nd June, 1939, and, as 26 weeks of the year 1939 had not elapsed on that date they could not then have failed to pay their contributions in respect of a period of 26 weeks and have lapsed from membership of the Union under Rule 12 (a).
I am, therefore, of opinion that the order appealed from was right, and that this appeal should be dismissed.
MURNAGHAN J. :
The two plaintiffs in this action, who are master sweeps and whose family have been in the same business for over 100 years, joined in June, 1936, a newly organised Chimney Cleaners Section in the Workers’ Union of Ireland. They appear to have done so for business reasons, many public contracts being limited to members of a Trade Union, but they were not in harmony with the practice of the Union that all tenders for contracts should be submitted to the Section. On the 3rd June, 1939, they were summoned to attend a Committee of the Section “with reference to your contract at the Vocational Technical Schools, Dublin,”and were informed that, if they failed to attend, drastic action would be taken in the case. On the 5th June, 1939, the plaintiffs wrote that they had submitted a tender in answer to a public advertisement, and added: “Why we receive a letter calling upon us to attend before the Committee we are quite at a loss to understand in view of the fact that the above matter is our concern alone and has nothing whatever to do with anybody else.”
There were in existence certain Rules and Regulations requiring tenders to be submitted to the Committee of the Section and to be sealed by the Section before being sent forward, but these Rules and Regulations had never been properly adopted so as to be binding, and what was done had been nothing but the practice of the Union. In this state of affairs the Union directed attention to another matter, and a letter, dated 22nd June, 1939, was written by the General Secretary. Portion of it reads:
“It was then reported to the Committee by the Secretary that you were in arrears in your payments of contributions to the amount of 18s. 6d. Under Rule 12 any member who fails to pay his contributions, etc., in respect of a period of 26 weeks lapses from membership. You are now officially notified that you have lapsed from membership of the Chimney Cleaners Section of the Workers’ Union of Ireland and are no longer considered a Trade Union member.”
At the trial full investigation was made into the actual payments made by each member. In 1938 James Moran made no payment after the 12th March, and was in arrear £1 1s. 0d.: 42 weeks consecutively on 31st December, 1938. He made four payments, amounting to 15s. in 1939, 2s. 6d. being paid on the 3rd June. I think the evidence clearly establishes that 6d. of any payment is credited to the week in which it is paid: the plaintiffs never made any appropriation, but the Union, according to the evidence, appropriates any sum over 6d. to the weeks of the current year. 1939 absorbed 22 payments, viz., 11s. and 4s. would be credited to 1938, leaving 34 consecutive weeks unpaid by James Moran.
Timothy Moran made a payment of 4s. 6d. on the 11th June, 1938. He then owed 2s., i.e., 4 weeksand he owed for an unbroken period of 29 weeks at the end of the year in addition. He also made payments in 1939 of 15s., the last payment being on the 3rd June. The year 1939 absorbed 22 payments, 11s. The balance of 4s. would go to the earlier payments due, 2s. for the period anterior to the 11th June, 1938, and 2s. would reduce the arrears of 1938 to 25 weeks. On the 22nd June, 1939, he owed two additional weeks, making 27 in all, of which 25 were consecutive in 1938.
The arguments in the case and in the appeal turned upon the proper construction of Rule 12. If the mere fact of non-payment of 26 consecutive weekly payments brought about a cessation of membershipas, indeed, Gavan Duffy J. heldthe question was raised whether the Union, having regard to its subsequent conduct, could take advantage of the ipso facto termination.
On the other hand, if termination of membership required some act of the Union, the question arises whether the facts justified the action notified in the letter of the 22nd June, 1939.
Sect. 14 of the Trades Union Act, 1871 (34 & 35 Vict., c. 31) requires the rules of every registered trade union to contain provisions in respect of the several matters mentioned in the First Schedule to the Actand one of the matters mentioned in this Schedule is “the fines andforfeitures to be imposed on any member of such trade union,” Rule 12 is, therefore a rule dealing with the forfeiture of membership, and I think in the ordinary sense of language the imposition of forfeiture, like the imposition of a fine, requires some act to be done by the person entitled to fine or to make the forfeiture. In Comyn’s Digest, Title,”Forfeiture,” after describing what should be a forfeiture, he deals in A. 6 under “Entry for the Forfeiture:By whom it shall be.” At the common law if the person entitled to make entry for a foreiture did not do so, no forfeiture was incurred.
Rule 12 (a) reads:”If a member fails to pay his contributions, levies, special levies and fines in respect of a period of 26 weeks, he shall thereupon lapse from membership of the Union. He may be re-admitted to membership by the Committee of the Branch or Section wherein his membership lapsed, on payment of such fine (not exceeding the sum of Five Pounds) as such Committee may fix.”
The present case is an illustration of the confusion that must arise if the mere fact of non-payment produces a cessation of membership. Neither the Morans nor the Union appear to have been conscious of the fact that at the end of 1938 on this construction of the rule the plaintiffs had ceased to be members.
Again, it is an established rule of Trades Unions not to permit work with non-union labourand, if a member, who had not paid his subscriptions, were objected to by any individual, he would have to be dismissed on the spot, if, on this construction of the rule, he had ceased to be a member of the Union.
Having regard to the statutory origin of the rule it is not. I think, exactly in the same position as a mere contract between the members, but, even if it is to be interpreted as a contract, the case of New Zealend Shipping Co., Ltd. v. Société des Ateliers et Chantiers de France (1)establishes that the contract is merely voidable where the event relied upon to terminate the contract is the wrongful act of a party to the contract. Lord Atkinson in his speech at p. 9 says:
“But if the stipulation be that the contract shall be void on the happening of an event which one or either of them can by his own act or omission bring about, then the party, who by his own act or omission brings that event about, cannot be permitted either to insist upon the stipulation himself or to compel the other party, who is blameless, to insist upon it, because to permit the blameable party to do either would be to permit him to take advantage of his own wrong, in the one case directly, and in the other case indirectly in a roundabout way, but in either way putting an end to the contract.”
The failure of the member to pay is the act which brings the contract to an end, and on the principle stated in this case it is only the Union which can take advantage of this non-payment.
Although more than 21 consecutive weeks’ payments were due by each of the plaintiffs at the end of December, 1938, it never occurred to the Union that they should refuse to issue a new card for 1939, nor did the Morans regard themselves as no longer members.
Taking this view of the construction of Rule 12 (a), it is necessary to consider whether on the 22nd June, 1939, the Union was on the true facts entitled to insist upon the forfeiture. In the case of James Moran he was in arrears for 34 consecutive weeks in 1938 together with two further weeks in 1939, viz., June the 10th and the 17th. He was on either construction of the Rule liable to forfeit his membership, and, in my opinion, the appeal should be allowed so far as concerns this plaintiff.
Timothy Moran was in credit 2s. at the beginning of 1938. He then made payments which cleared him to the 12th March. On June the 11th he paid 4s. 6d., of which 6d. goes to that week and 8 payments cover the weeks including May the 7th. Four weeks before the 11th June and 29 consecutive weeks after it were due at the end of of the year. The over-payment in 1939 was 4s. and, crediting this amount to 1938, a consecutive period of only 25 weeks remained, but two additional weeks were due, viz., the 10th June and the 17th June.
If the word “period” can be understood in the sense of an aggregate the Union were justified in terminating the membership, but if the word has the sense of a continuous number of weeks the Union could not terminate his membership when they did soalthough if they had acted much earlier there was a period of more than 26 consecutive weeks due. It is a misuse of the word “period”to cover 25 consecutive weeks in 1938 and two weeks in June, 1939, and although the rules use “period” and”consecutive weeks” in the same rule it is not clear that period is used in the sense of aggregate. Thus, Rule 123 runs:”After 52 consecutive weeks membership and payments of contributions . . . due in respect of a period of 52 weeks.” A man who was a member for 60 weeks could under this Rule have to pay 52 consecutive payments, and it may have been the object of the rule to require 52 continuous payments before becoming entitled to benefit. Otherwise a man who was a member for years could get benefit after a total of 52 payments spread at considerable intervals.
The Union had objects in view besides mere industrial assurance, and it may have desired to expel only those members who neglected any payment for 26 weeks. I do not feel justified in giving to the word “period,” which has a definite meaning, another, and I think, a very strained meaning, and in ascribing to it the meaning of total or aggregate of payments. The Union overlooked that Timothy Moran was in credit 2s. at the beginning of 1938, on the card for 1939 his arrears are stated to be 18s. 6d., which it was admitted should have been 16s. 6d. When the Union took action, by the overpayments of 1939 only 25 consecutive weeks were due by him, and, in my opinion, the Union were not entitled to forfeit his membership.
In my opinion the appeal should be dismissed so far as concerns Timothy Moran.
MEREDITH J. :[Read by Sullivan C.J., Meredith J. having died on the 14th August 1942.]
In this action the plaintiffs seek a declaration that they are members of the Workers’ Union of Ireland. The defendants deny this on the ground that they ceased to be members owing to non-payment of contributions for the period specified in Rule 12 of the Union Rules. This Rule presents difficulties of construction which it is necessary to clear up to see what facts are relevant.
Rule 12 reads:[Reads the Rule.] The first question that was argued was whether “period”means an unbroken period. There is no doubt that “period”does, as a matter of English, mean an unbroken period, and there is no authority for any other use of the word, but, if the Rules make it quite clear that the word is being used in a wrong sense then they have made a dictionary of their own which must be recognised. But the context must be very clear; more especially because, if an unbroken period were not meant, it would be so easy simply to say”26 weeks in arrear,” and Rule 102 shows that this is the phraseology adopted where an aggregate of weeks is intended. Mr. Cherry relied strongly on Rule 97 [Reads Rule 97] as showing that the word “period” is equivalent to “the extent of a period.” But this argument depends upon construing Rule 12 (b) as meaning that the arrears need only be “to the extent of a period of eight weeks.”But the construction of Rule 12 (b) is by no means clear, and I incline to the view that the opening words, in which the expression “to the extent” occurs, are only introductory, and that the arrears must be in respect of a period, i.e., an unbroken period, of eight weeks. The word “period” occurs in many other rules, which, however, afford no assistance. I am, therefore, of opinion that”period” means an unbroken period.
The next contention on behalf of the respondents was that “lapse” is to be construed as “lapsable,” and counsel produced abundant authority to show that “void” may be read as “voidable.” But the principle of these authorities is that “void” should be so read where not so doing might enable the person liable to a forfeiture to determine his liability by his own default against the will of the person entitled to insist on the forfeiture. The application of these authorities does not extend farther than the principle upon which they depend, and, consequently, they have no application where the person liable to the forfeiture is in a position at any moment to determine his liability. In the present case there is nothing to prevent a member from resigning whenever he pleases. I am, therefore, of opinion that “lapse” does not mean “lapsable.”
The next question is whether the operation of the rule is automatic. The word “thereupon” implies that it is, and there is no reason why it should not be, for the rule itself provides a method of re-admission. There was no point in citing cases as to reading “thereupon” as meaning”forthwith” or “in a reasonable time,” for those cases only have application where some time must elapse, but here the lapsing is naturally instantaneous.
Coming now to the facts, the plaintiffs on numerous occasions paid sums in excess of the sum due in respect of the week in which they were paid. If sixpence is to be regarded as appropriated to that week, then, prior to the 6th June 1940, there was no continuous period of 26 weeks during which either of the plaintiffs failed to pay a weekly contribution, and if they are entitled to rely on this there is an end of the case. On the 29th January and 12th March, 1939, each of the plaintiffs only paid sixpence, and it seems to me impossible to suppose that the sum was not paid in respect of those weeks, and that in those particular weeks nothing was paid in respect of arrears. That helps me, if help were needed, to conclude that in each week in which a payment was made the intention of the plaintiffs was to appropriate sixpence to the week of payment and the balance, if any, to arrears; and that appropriation was what was most favourable to the debtor. The evidence of John Nugent, the Branch Secretary, in answer to question 1357, was relied upon as showing that, if the plaintiffs did not appropriate to the week of payment, there was such an appropriation by the Union. John Nugent was asked:”If he pays more than sixpence, to what weeks do you credit the rest?” He replied:”If he paid five shillings, sixpence would go to that week and four shillings and sixpence off arrears.”
But I regard that rather as recognition and confirmation of the appropriation by the member than as an appropriation by John Nugent of his own accord in default of appropriation by the member. But what use can the plaintiffs make of that fact? None, in my opinion. They have pleaded an estoppel and that alone, and they have pinned themselves thereby to a case which is independent of factual truth. If estoppel had been pleaded as an alternative then, perhaps, the plaintiffs could stand first on one foot and then on the other. But, as matters stand, they are precluded from going into the actual facts. This, I take it, was the point made by Mr. Kingsmill Moore after question 1320. He said:”In order to keep myself guarded I must object to the production of any evidence contrary to the official cards given to me. I raised the point of estoppel and they should not be allowed to be produced in evidence. I am technically guarding my right.”
Mr. Justice Gavan Duffy said:”I technically overrule it.” In my opinion the objection was perfectly valid. This may seem a very technical ground, but, if pleadings are to be entirely ignored, I really do not know where I am.
Now, what is the estoppel relied upon? It is (see paragraph 3 of the amended reply) that the defendants are estopped “from alleging that the plaintiffs, or either of them, were in arrear on the 22nd day of June, 1939, or that they, or either of them, had ceased to be members of the said Union by reason of the provisions of Rule 12 (a)of the Rules of the Workers’ Union of Ireland, or of Rule 2 of the Rules and Regulations of the Chimney Cleaners Section, No. 3 Branch of the said Union.”
Mr. Kingsmill Moore based the estoppel on four grounds, but he is restricted to the one specified in the pleadings, viz.: “Each of the plaintiffs during the year 1939 paid sums in excess of the contributions due by him for that year up to the 22nd June, 1939, which were accepted by the defendants without any suggestion that there was any further sum due by way of arrears.” The issue of contribution cards at the beginning of 1939 only makes the plaintiffs, by estoppel, members at the beginning of 1939, withif the plaintiffs’ contention be rightno arrears then due. The way Mr. Kingsmill Moore used the alleged estoppel precluding the defendants from denying that no arrears were due in respect of 1938 was that a number of payments, amounting in all to 15s., were paid in the first six months of 1939, and, if no arrears were due, the plaintiffs must have paid contributions in advance discharging them for thirty weeks and this would bring them well past the 22nd June.
I reject the whole of this argument on the following grounds:
The first is the technical ground that, if the plaintiffs base their proof of membership on 22nd June on an estoppel, relying on the fact that the contribution cards issued at the beginning of 1939 do not show arrears due, and if they then attempt to prove as a fact that their payments for 1939 bring them well past the 22nd June, they should not plead an estoppel in respect of membership on the 22nd June, for that precludes them from going into the facts as regards actual payments.
Secondly, the alleged estoppel as regards membership on 22nd June rests on no grounds. The plaintiffs have only proved an estoppel as regards the beginning of 1939, and from that on they rely simply on evidence as to actual payments.
Thirdly, I do not think, on the evidence, that the blank after arrears on the contribution cards, supports an estoppel in respect of arrears; but I need not develop this owing to my view on the next point.
Fourthly, the plaintiffs have made no attempt to show that they acted on a belief that no arrears were due in respect of 1938. It would, as the trial Judge holds, be ridiculous to suppose that they really believed that no arrears were due, and the mere fact that they paid sums in excess of what was due on the assumption that there was the estoppel does not suggest a belief that nothing was due, but quite the contrary.
For these reasons I must hold that the plaintiffs have not established that they were members on the 22nd June, 1939. They made no payments in 1939 after the 3rd June and, consequently, there was an unbroken period of 26 weeks non-payment before action brought, and the plaintiffs are not entitled, and the learned trial Judge did not hold, that they were members at the date of the originating summons. True, there was an alleged tender of arrears by letter of 27th November, 1939, and enclosed cheque, which was immediately returned. But the tender was not a good tender because it was a lump sum of 22s. for both plaintiffs, instead of a segregated sum for each separate plaintiff.
I hope that in holding that the appeal must be allowed I have made it plain that I only do so because, on the pleadings, the plaintiffs are not entitled to rely on the fact that on each payment in 1939 sixpence should be apportioned to the week of payment, and then 26 weeks of continuous non-payment would not be shown. Of course, if the pleadings are to be totally disregarded, though a plea of estoppel is always dealt with very strictly and technically, and if this action is to be regarded as an”all-in” tussle between the parties, then the plaintiffs would be entitled to succeed.
GEOGHEGAN J. :
This action was dismissed as against the defendant, John Rooney. The appeal is by the defendant Union against so much of the order of the High Court as declares that each plaintiff was on the 6th of June, 1939, and still is a member of the Chimney Cleaners Section of the Union, and directs the Union to pay the costs.
The Union registered its Rules pursuant to the Trade Union Acts, 1871 to 1935. The plaintiffs rely on these Rules to establish their claims to membership in 1939.
The answer of the Union mainly relied upon is that by the mere operation of Rule 12 (a) the plaintiffs in the events which happened had ceased to be members, and that they had not been re-admitted under the provision for readmission contained in the same rule. The plaintiffs’ case is that they never ceased to be members; alternatively, they say that, if they ceased to be members because of the terms of Rule 12 (a), they were re-admitted by the acceptance, by the Collector of the Union, of contributions paid by them and by invitation to attend a meeting. They do not allege that they ever signed application for membership (under Rule 5) or otherwise requested re-admission. It is established that they never obtained re-admission in the form, or by means of, the procedure set forth in the Rules.
As further alternative claims, the plaintiffs plead in their reply that the defendants are estopped from alleging that they ceased to be members under Rule 12 (a), and that the defendants waived the provisions of the Rules.
The observations I shall make on the arguments as to estoppel, waiver and the acts of officers of the Union are related to the fact that the plaintiffs claim as members under the Rules, and that their contract with the Union and the other members consists of the Rules. If this were an action against the Union by plaintiffs who did not claim to be members I feel that these points would have to be approached by a different way.
It is necessary to construe Rule 12 (a). It provides for the case of a member failing to pay his contributions in respect of a period of 26 weeks. Each plaintiff should, under Rule 94, pay to the Union weekly contributions at the rate of 26s. a year, payable at 6d. a week.
It has been contended that it is not necessary for a member to pay his weekly contributions in sequence; that he may skip a week or weeks and pay a contribution attributable to the then last current week. There is no rule authorising payment and appropriation of a contribution in this way. Reference has been made to the rule in Clayton’s Case (1), and it was suggested that under it the member (or failing him the collector) could appropriate a weekly contribution to any week.
I thought this argument was not pressed. Payment by a member of a trade union of his weekly contribution bears little resemblance to a payment by a debtor to his creditor in respect of an item or items recoverable by action on foot of a running or current account. One of the purposes of the weekly contributions is to provide funds for Dispute Pay, Funeral Benefits and Legal Assistance. Rule 100 and succeeding rules contain elaborate statements of the rights of members to these benefits, and a separate
Provident Fund is set up out of which Funeral Benefit is payable; these benefits are confined to members or their representatives. Presumably the funds out of which they come are based on actuarial calculations. It seems to me it would be difficult, if not impossible, to manage and conduct these funds unless a member pays his contributions for immediately successive weeks. Further, an impecunious or obstructive member could otherwise (within the rules) spread his arrears over twenty years or more. Other illustrations of administrative difficulties could be given.
In my opinion the Rules contemplate the payment of weekly contributions to be appropriated one week after another in sequence. Of course the date on which a payment is made must for accounting purposes be recorded. The matter is governed entirely by the Rules; to my mind the fact that a collector or other officer, without the authority of a rule, took on himself otherwise to appropriate to a particular week is of no help or importance. I refrain from dwelling on the extent to which the evidence shows that officers of the Union omitted to advert to the rules and thereby contributed to the difficulties and obscurities of this litigation.
Rule 12 (a) goes on to provide that if a member fails to pay for a period of 26 weeks he shall thereupon lapse from membership, but may be re-admitted by a Committee on payment of a fine not exceeding £5. It seems to me the word “period” is used in its true sense. The argument that it means an aggregation of periods separated by intervals is not easy to follow. There is not in the Rules an interpretation clause deeming it to include that signification and there is nothing in any other of the Rules inconsistent with the word having its true meaning. It is not material that the Union has used phrases seemingly synonymous in certain Rules. It may even be said that some of the apparently synonymous expressions are not truly so, but convey more exactly the sense of what their context requires.
If I am accurate in my view as to the manner in which weekly contributions are to be credited, no question as to the meaning of the word “period” can arise.
Once a member fails to pay for this period the Rule provides that he shall thereupon lapse from membership. It continues to say that he may be re-admitted by a Committee on payment of a fine. It is thus made clear that lapse from membership means cessation of membership. This rule contains the complete mechanism for lapsing a member. There is no stipulation for a declaration or other act by the Union. Once the event happens membership ceases. Re-admission takes place only after a Committee has so decreed and after some amends have been made to rule-abiding, punctual paying members by the imposition of a fine.
On my construction of Rule 12 (a) both the plaintiffs lapsed from membership towards the end of 1938.
Once a member has lapsed from membership can he be readmitted (as claimed in the pleading) by a collector accepting a contribution or by any other act of an officer of the Union? The only power to re-admit conferred by the Rules is that given to the Committee, who have a discretion, who must impose a fine, and who are not authorised to dispense with any provision as to admission. The contributions mentioned in the Rules are expressed to be those of members; if a member lapses a payment by him (unless it fell due before lapse) is not a contribution as a member.
By the Trade Union Act, 1871, s. 14, sub-s. 1, the Rules of a registered trade union must contain provisions for the making, altering, amending, and rescinding of rules.
Rule 92 of the defendant Union complies with this requirement. Its terms are:
“These Rules may be altered, amended, or rescinded and a new rule or rules may be made by the annual Delegate Conference. Proposed amendments may be submitted by any Branch or by the General Executive Committee to the annual Delegate Conference, provided that such proposed amendments shall have been circulated to the Branches of the Union two months at least before the date fixed for the holding of the annual Delegate Conference.”
In my view if a lapsed member can be re-admitted by an officer of the Union taking from him a payment, or inviting him to attend a meeting, there is the equivalent of an alteration or recission of Rule 12 (a) without the observances prescribed by Rule 92a new procedure for admission has been found. Counsel for the plaintiffs did not argue that one who had never been a member could be admitted by a collector taking a payment from him, or by the sending to him by an officer of a notice to attend a meeting as a member; but, if there is a distinction between the admission of a candidate not previously a member and a candidate who was at one time a member but whose membership had ceased, the distinction has not been explained to me so far as it is relevant to this plea.
I am unable to perceive how the pleas of estoppel and waiver are appropriate in this action, or, on the facts, available. The plaintiffs were members, and on their contention continued to be members. They argued that their relations with their fellow-members and with the Union should be regulated by the Rules. They knew of Rule 12 (a), or knowledge of it must be imputed to them. The relationship that might give rise to, and the elements necessary to constitute, estoppel or waiver seem to me to be absent. Further, to yield to the pleas of estoppel or waiver would be repugnant to Rule 92.
In my opinion the appeal should be allowed and the action dismissed.
O’BYRNE J. :
This is an appeal by the defendants from so much of a judgment and decree of Mr. Justice Gavan Duffy, dated the 31st day of October, 1941, as declares that each of the plaintiffs was on the 6th day of June, 1939, and still is a member of the Chimney Cleaner’s Section of the defendant Union.
The material facts are not seriously disputed and the rights of the parties depend, substantially, on the true construction and effect of the Rules of the defendant Union.
Rule 12 (a) of the Rules of the Union provides that: [Reads the Rule].
The first question which arises for determination is the meaning of the expression “a period of 26 weeks.” It was argued, on behalf of the appellants, that this period of 26 weeks may consist of several broken periods. Counsel on behalf of the respondents, on the other hand, contended that the expression means a continuous unbroken period of time. In view of the conclusion at which I have arrived on other aspects of this case, it is not strictly necessary that I should decide this point; but, inasmuch as a great deal of time was occupied in arguing the matter, I think it is desirable that I should express my opinion on it.
I agree with Mr. Kingsmill Moore that the ordinary meaning of the term “period” is restricted to an unbroken stretch of time, and, if there were nothing in the Rules to indicate that a different meaning was intended, I consider that the term should be so construed. I think, however, that there are sufficient indications in the Rules of the Union to show that the parties used the term in a different sense. I intend to refer only to what I consider the most striking indications.
In two places in Rule 124, dealing with “Funerals Benefit,” we find the following provision:
“After 52 consecutive weeks membership and payment of contributions, levies, special levies and fines in respect of a period of 52 weeks.”
In two other places in the same Rule there is a similar provision substituting 26 for 52. Here we have the expression”52 consecutive weeks” used in juxtaposition with the expression “a period of 52 weeks,” and, apparently, used in a different sense. The same thing occurs in connection with the expression “26 consecutive weeks,” which seems to mean something different from “a period of 26 weeks.” The rule-maker seems to have used the term”consecutive weeks” when he desired to indicate an unbroken period of time. At any rate it leaves the matter in such doubt that one is entitled to consider the effect of construing the expression in the manner contended for by the respondents with a view to seeing whether the parties can reasonably be considered as having used the expression in the sense contended for.
If it means a continuous period, then a member can indefinitely remain a member so long as he pays his contributions every twenty-sixth week and in respect of that week; because, in such event, there would never be a default on his part in respect of a greater period than 25 weeks.
Rule 12 (b) provides that any member who is in arrears to the extent of having failed to pay the contributions, etc., due in respect of a period of eight weeks shall forfeit all claims to benefits and shall not be entitled to vote on any matter concerning the Union. If, on this Rule,”period” means a continuous period, then a member remains in benefit, within the meaning of the Rule, so long as he pays his contributions in respect of each eighth week.
Regard should also be had to Rule 92, where the term”a period of eight weeks” is also used. If it means a continuous period a member can never be fined under the Rule so long as he makes a payment every eighth week of an amount representing his contributions, levies, special levies and fines in respect of that week.
The position is the same with reference to “Dispute Pay.” Under Rule 117 a member who is in arrears in respect of a period of more than eight weeks is debarred from receiving Dispute Pay, subject to the discretion of the General Executive Committee to authorise the payment. If, in this Rule, “period” means “continuous period,”the member always remains in benefit, so long as he pays the necessary contributions every ninth week and in respect of that week.
I do not think that the parties to the contract contained in the Rules can reasonably be considered as having contemplated or intended these results. In my opinion the expression “period,” as used in the Rules, does not necessarily mean a continuous period, but, on the contrary, is used as a measure of time, which may be made up by adding together various broken and unconnected periods.
It next becomes necessary to consider the meaning of the expression “lapse from membership” as used in the Rule. On this matter I am in entire agreement with the view of the learned trial Judge. It seems to me that the Rule works automatically as and whenever the conditions mentioned in it are complied with. If some act, such as a declaration, on the part of the Union, were necessary in order to make the lapse binding and effective, the Rule should have so provided. Instead of making any such provision, the Rule says that “he shall thereupon lapse from membership of the Union.” I read this as meaning that he shall lapse from membership on the happening of the event mentioned in the Rule, namely, actual default in payment of contributions in respect of the necessary period.
The meaning and effect of lapsing from membership is explained by the following sentence, which provides for his re-admission to membership. This clearly contemplates that he has ceased to be a member. The cases between landlord and tenant, to which we were referred during the course of the argument, do not seem to me to have any bearing on this case. In these cases the tenant was attempting to rely upon his own default for the purpose of avoiding liabilities under his contract. In this case there is nothing in the form of application for membership or in the Rules of the Union to compel the member to continue his membership, and I am of opinion that he could resign or withdraw from membership at any time by intimating to the Union that he desired to do so.
Having arrived at the foregoing conclusions as to the construction of the Rule, it now becomes necessary to consider the position of the two respondents under the Rule.
On the clearly established facts of this case, both were in default towards the end of the year 1938, however the word “period” may be construed, and I am of opinion that both ceased to be members of the Union about that time. They could only be re-admitted to membership by the Committee of the Section, to which they belonged, on payment of such fine (not exceeding the sum of £5) as the Committee might fix. It will be noted that the fine is not to exceed £5, but there is no minimum limit, and I am inclined to think that the Rule means “on the payment of such fine (if any),” and that, accordingly, the Committee could relieve the member from payment of any fine on re-admission. It is not suggested that the course contemplated by the Rule as to re-admission was in fact taken.
The Union, however, through its responsible officers, issued membership cards to the respondents at the beginning of the year 1939, and, during that year, recognised them as being members by taking from them contributions, summoning them to meetings of the Union and by other unequivocal acts which can only be explained on the basis that the respondents were members of the Union during the early part of that year. By reason of these acts, can it be said that the appellants are now estopped from denying that the plaintiffs were members of the Union, by re-admission or otherwise, during the early part of the year 1939, or must the appellants be treated as having thereby waived the right, which they would otherwise have had, of alleging that the responents were not members?
The matter does not depend solely upon the acts of the parties. Regard must also be had to the pleadings, and, particularly, to the defence filed on behalf of the Union. In their statement of claim the respondents say that:”Each of the plaintiffs was at all material times, and claims still to be, a member of the said Section of the said Union.”
In their defence to that claim the appellants say in par. 2:
“The defendants admit that the plaintiffs were members of the Chimney Cleaners Section, No. 3 Branch, of the Workers’ Union of Ireland, but say that they ceased to be members of the said Union and are not now members of the said Union since on or about the 22nd day of June 1939, by reason of the facts and circumstances hereinafter set forth.”
Par. 3 sets out the provisions of Rule 12 (a), and par. 4 alleges that:
“The plaintiffs and each of them failed to pay their respective contributions to the said section of the said Union for a period of 26 weeks and upwards prior to the said 22nd day of June, 1939, and thereupon the plaintiffs and each of them ceased to be members of the said Section of the said Union, and the plaintiffs and each of them are not now, nor is either of them, members or a member of the said Section of the said Union.”
This seems to me to be a clear admission, by the appellants, that the respondents were members of the Union during the year 1939 up to the 22nd day of June of that year. I think we are bound, as against the appellants, to deal with the case on that basis. If, however, they were members during that year, it can only be by reason of their having been re-admitted to membership, and I am of opinion that, having regard to the facts in this case and to the pleadings, the Court should determine the case upon the basis that the respondents were, in fact, re-admitted to membership.
Assuming that they were re-admitted, I am clearly of opinion that such admission was subject to the Rules as then in force and that, on such admission, the respondents became entitled to all the benefits of membership under the Rules of the Union. Rule 12 (a) again became applicable; but, in order that there should be a further lapse from membership, it would be necessary that a default in payment should take place in respect of a period of 26 weeks after the re-admission.
Can it then be said that such a default took place in this case? In my opinion such an allegation cannot successfully be made for two reasons. In the first place, such a default is not alleged by the appellants in their defence. Secondly, and apart from the pleadings, all the acts relied upon in support of the waiver and as evidence of re-admission such as (a) the entry of the names of the respondents in the Register for the year 1939, (b) the issue of official membership cards for that year, (c) the collection of subscriptions during that year, (d) the attendance of one of the respondents at meetings of the Union, and (e) the letter of the 3rd June, 1939, signed by the Secretary of the Section and the General Secretary of the Union requesting the respondents to attend before the Committee of the Section on the 6th June, 1939took place during the year 1939, and the only reasonable inference from that evidence is that, if re-admission took place (as I think, in the circumstances, we are bound to assume), it took place sometime in the early part of that year. In the circumstances, a default in respect of a period of 26 weeks cannot have occurred prior to the 22nd June, 1939, being the date relied upon by the appellants as the date of cessation of membership.
For these reasons I am of opinion that the decision of the learned trial Judge was right and that this appeal should be dismissed.
Branigan v. Keady and Others.
Haugh J. [1959] IR 286
HAUGH J. :
27. Feb. 1959
I will summarise the evidence which is not in dispute. In May, 1951, the plaintiff became branch secretary of the No. 1 Branch of the Marine Port and General Workers’ Union (hereinafter called the “old Union”). He remained so until he was appointed secretary of the said Union in March, 1954.
The No. 1 Branch dealt with seamen only. On the 17th November, 1956, following a resignation notice given by him to his Union, the plaintiff retired from the office of general secretary, but continued his membership of the said Union.
On the 10th December, 1956, the plaintiff was appointed general secretary of another union, viz., the Irish Pilots’ and Marine Officers’ Association. In fact he never became a member of this Union.
On the 7th January, 1957, a letter was written to the plaintiff from the old Union suggesting that he should resign his membership of the old Union as he had become an official of another Union. Some further letters passed between the plaintiff and his old Union and on the 31st January he was informed by letter from his former Union that he had been expelled for “conduct inimical to the interests of the members of the Union.”
By further letters and otherwise the plaintiff protested against such steps being taken in his absence and without affording him a hearing or without naming the charges against him.
On the 25th March, the plaintiff appealed against the decision of the 31st January aforesaid.
An annual general meeting of the old union was held at the Catholic Club on the 31st March, 1957, at which the plaintiff was present. It appears that instead of his appeal being proceeded with, a resolution was put to the meeting, that the expulsion be revoked from that date, and that the plaintiff should be allowed to appear before the committee to show cause as to why he should not be expelled for the reasons stated in the letter of the 8th March, 1957. The plaintiff objected and reserved his rights.
On the 8th April, 1957, ballot papers were sent to available members of the old Union, and eventually after some adjournments and after protests were made by the plaintiff, the general meeting was held on the 5th May, 1957, following which the plaintiff was informed that he was re-instated as a member of his old Union and that he was to attend a meeting to be held on the 25th June, 1957, to rebut the charges already made against him.
A meeting was apparently held in June, at which nothing of importance to this case was done, and on the 4th September, 1957, the plaintiff was asked by letter to attend a meeting to be held on the 11th September, 1957, to rebut the charges already mentioned. The plaintiff did not attend this meeting but his solicitors wrote to the Union on the same date, setting out their client’s position from the beginning and threatening legal proceedings unless his full membership with its attendant privileges was fully restored to him forthwith.
The meeting was held on the 11th September, 1957, and the plaintiff’s solicitors were informed of its result, to the effect that the plaintiff had been “expelled from membership of this organisation for conduct inimical to the best interests of the members and unbecoming a member of the Union,”this expulsion to take effect from the 11th September, 1957.
This is the first date and occurrence of importance in the matters I have to deal with.
On the 28th September the plaintiff’s solicitors served a notice of appeal against the decision of the executive committoe to the next meeting of the annual general meeting of the Union. Further correspondence followed and the annual general meeting was held on the 30th March, 1958, some six and a half months later.
In that six and a half months some matters occurred to which I will refer briefly.
Towards the end of the year 1957 a dispute had arisen involving the employers (the Irish Shipowners Association), the old Union and the Irish Seamen’s Union (hereinafter called the “new Union”). Various bodies attempted a settlement of the dispute without success, and matters reached a crisis towards the end of November, 1957.
On or about the 29th January, 1958, the defendantsthe Labour Courtof its own volition decided to intervene, as it was entitled to do, in order to obtain, if possible, a settlement satisfactory to all concerned.
It invited the three parties concerned to attend separate meetings which took place some two days later, following which the defendants used their conciliation machinery to endeavour to obtain such settlement and meetings with all concerned were held from the 1st February, 1958, to the 13th February. One result of this was a proposal that a new union be set up to cater for seamen only, details of which are set out in recommendation No. 1034, dated the 18th February, 1958.
To this recommendation there was attached an appendix of the same number (i.e., 1034) headed:”Terms of Settlement of the Shipping Dispute.” This proposed, inter alia,that a ballot should be conducted immediately to elect the first executive of the new Union (para. 1), and that a person eligible for election to the first executive must be a seaman member as on the 14th November, 1957 (para. 3).
Paragraph 5 stated that persons eligible to vote in the intended ballot should have been members of the No. 1 Branch of the old Union on the 14th November, 1957.
This date, the 14th November, 1957, is the second date of great importance in the case before me.
By letter, dated the 20th February, 1958, the old Union accepted the recommendation without reservation. By letter, dated the 21st February, 1958, the Irish Shipowners Association accepted the said recommendation subject to certain comments and reservations contained in the said letter.
By letter, dated the 24th February, 1958, the Irish Seamen’s Union accepted the said recommendation.
On the 5th March, 1958, by letter the Labour Court informed the two unions concerned that it had decided that nominations for the first executive of the new Union should be made on the nomination paper on or before the 15th April following. Later nomination papers, for the election of a general secretary and an assistant general secretary to the new Union, were sent to the same parties and these were to be sent, duly filled in, to the Labour Court on or before the 15th May, 1958.
After the annual general meeting of the old Union, held on the 30th March, 1958, certain events took place which are the immediate cause of the proceedings now before this Court and briefly they may be summarised as follows.
By a series of letters written on behalf of the Irish Seamen’s Union a list of 17 names of members of the No. 1 Branch of the old Union was submitted as not being eligible to vote (for reasons that are not relevant to this action), but the plaintiff was singled out as being a person not entitled to vote, in that (as they alleged) he was not a member of the No. 1 Branch of the old Union on the 14th November, 1957, and was not entered as such on the register of members on that date. As a result of this opposition the plaintiff wrote a number of letters to various persons and bodies and to the Ministry for Industry and Commercein the main contending that his restoration to membership on the 30th March, 1958, had and was intended to have retrospective effect, so as to make him a member on the vital date, viz., the 14th November, 1957. Full submissions were made in writing by the parties interested in the matter. Counsel’s opinion was taken and submitted to the Labour Court.
Eventually, all three parties were notified by letter, dated 9th June, 1958, informing them that this particular dispute had been referred to the Labour Court, and that same would be investigated by them on Friday, the 13th June, and a special letter to the same effect was on the same day sent to the plaintiff.
This meeting was duly held and its result was communicated to all interested parties, including the plaintiff, on the 20th June, 1958. They were informed that the matters concerned were the rights of candidature and the voting rights of the plaintiff in the intended ballot and election of officers of the first executive of the new union for seamen, and that the Court had considered all the evidence submitted to it and had decided 1, that the plaintiff was not eligible for election to the first executive of the new Union; 2, that the plaintiff was not eligible to vote in the ballot for this election. The Labour Court thereafter proceeded to deal with the preparations for the intended election and did not supply any ballot papers to the plaintiff for the purpose of voting at the said election, and as a result these present proceedings were instituted. The summons was issued on the 22nd July, 1958. The statement of claim was delivered on the following day.
A defence was entered on the 20th September, following, and the pleadings were closed by reply, dated the 2nd October, 1958. Prior to the defence the plaintiff had moved this Court, by way of an interim injunction, to restrain the defendants from proceeding with the said election in the manner already indicated by them, and on an undertaking being given by the defendants that they would not proceed with the preparation of the ballot pending the hearing and determination of the action, the motion was adjourned.
That, in brief, was the position when this case was opened in December last.
With that brief review of the facts I now desire to make some remarks about the defendants, the Labour Court. Prior to the hearing of this action I had but an ordinary layman’s and newspaper reader’s knowledge of its activities.
In common with most I have a high admiration and appreciation of the valuable good and help it renders to society. Any remarks I may make arise solely from a legal examination of the Act that set it in being.
This Act, No. 26 of 1946, is entitled “Industrial Relations Act, 1946.” It states in its long title that it is “An Act to make further and better provision for promoting harmonious relations between workers and their employers and for this purpose to establish machinery . . . for the prevention and settlement of trade disputes.”
The setting up of the Labour Court was part of the effort made to achieve the ends set out in the long title. An examination of the various sections clearly shows that the Labour Court is not a Court in the usual accepted legal meaning of the word. The chairman, assistant chairman and members do not have to be lawyers. The registrar alone must be. It can intervene in a dispute of its own volition (as it did in this case). The High Court, the Circuit Court, and the District Court can do nothing unless moved by some person or body acting according to law.
The Labour Court cannot make decisions that bind the parties before it, unlike the powers of an ordinary Court. The Labour Court in this case intervened in the dock dispute under s. 67, sub-s. 1, of the said Act and issued its recommendation under s. 68, sub-ss. 1 and 2, thereof.
This examination fully satisfies me that the Oireachtas, while naming this body “the Labour Court,” intended that it would be a Court as an experienced lawyer interprets the word. Parties to appear before it were not to be professionally represented unless rules were made to allow for such attendances.
I now wish to refer to a section of the Act which I consider of vital importance. I refer to s. 17, which is as follows:”No appeal shall lie from the decision of the Court on any matter within its jurisdiction to a Court of law.”
Under no circumstances can I ignore this section, and I have to inquire into, and decide, what effect, if any, this section has on the proceedings now being considered and the rights of the High Court to interfere with its decision. This inquiry raises two important questions, namely, 1, Is the case before me in effect and in fact an appeal from a decision of the Labour Court? and 2, If so, can this Court interfere in the matter, if the Labour Court, at the time, was acting within its jurisdiction?
As regards the first question, this action has been instituted by originating summons in the Chancery side of the High Court. The plaintiff seeks certain equitable relief in the nature of certain declarations and injunctions.
I am satisfied, beyond all possible doubt, that despite the form and nature of these proceedings, the action is, in effect and in fact, an appeal from the decision of the Labour Court which decided that the plaintiff was barred from seeking office in the new Union or voting thereat.
To me this is so plain that I do not propose to deal further with the matter.
I am also fully satisfied that from the time the Labour Court intervened in the dispute in January, 1958, to the date of the publication of the decision complained of, the Labour Court acted at all times, and in all matters, fully within the jurisdiction conferred on it.
For these reasons I hold that this Court, prima facie, has no jurisdiction to adjudicate in the action before it because of the provisions of s. 17 aforesaid. To hold otherwise would and must mean that any person aggrieved by a decision of the Labour Court, acting within its jurisdiction, can have such decision reviewed (as if on appeal) by this Court a procedure contrary to the whole intent and meaning of the Industrial Relations Act and contrary to the express prohibition contained in s. 17.
I have had in mind, of course, at all times, the inherent jurisdiction which the equity side of the High Court has over all domestic tribunals, clubs, social societies and all types of unincorporated bodies, to inquire into their decisions, and to set them aside, provided the Court is satisfied that the proceedings complained of offended against the ordinary canons of natural justice: see Russell v. Russell (1); Fisher v.Keane (2); Local Government Board v. Arlidge (3); Board of Education v. Rice (4); The State (Horgan) v. Exported Live Stock Insurance Board (5).
I have heard at great length the arguments of Mr. Conolly for the plaintiff and Mr. McGonigal for the defendants; a strong case was made on behalf of both parties and the one point involved was indeed debatable.
I have put to myself the questions raised by Mr. Justice Overend in Horgan’s Case (1). The defendants’ duties were (I quote) “(a) to investigate, (b) to determine, (c) to report.”They (the Labour Court in this action) were “to act in good faith, to listen fairly to both sides, to obtain information in a way which would give a fair opportunity to the parties to correct or contradict any statement prejudicial to their case.”
In my opinion, the Labour Court, in investigating the plaintiff’s complaint, has fully complied with these conditions. The plaintiff’s whole case was fully before it and it gave all parties a full and fair hearing and has acted in all matters with the utmost good faith. It may be that this Court, if it had jurisdiction to do so, might hold that the decision was wrongI express no opinion whatever on this point, for the reasons stated, and must therefore dismiss the action.
I am aware that this case was not opened and argued before me, and I did consider having the action re-entered in the list for argument on this one point. However, I felt so satisfied in my view that I did not feel like adding further costs and expenses.
From the above judgment the plaintiff appealed to the Supreme Court (2).
MAGUIRE C.J. :
29. June
The learned Judge of the High Court has decided this case on a ground which rendered it unnecessary for him to consider the history of the relations between the plaintiff and his Union. He has held that the decision whether the plaintiff was entitled to a vote for the first executive of the new Union which was to replace the two older Unions was within the jurisdiction of the Labour Court and by virtue of s. 17 of the Industrial Relations Act was not reviewable by the ordinary Courts. I am not prepared to agree with this and prefer to base my decision on a different ground.
Turning to the other grounds of appeal, I consider that the plaintiff is right in his contention that the revocation of the expulsion order of the 11th September, 1957, at the general meeting on the 30th March, 1958, if valid, would retroactively restore his membership to the date of his expulsion including the 17th November, 1957.
The difficulty for the plaintiff, however, arises from the procedure adopted at this meeting. Rule 22 had been amended in October, 1954, by the insertion of a new paragraph which provided that a seaman member absent from his home port, provided he was in benefit, had the right to have his vote taken and recorded in respect of all matters. This rule had been rescinded by the executive committee in accordance with the powers conferred upon it by Rule 23. The decision so to alter the rules was, however, subject to the saving provision in the rule which required any alteration to be ratified by a majority of the benefit members present and voting at the next ensuing annual general meeting. The next general meeting was that at which the revocation of the expulsion order in respect of the plaintiff purports to have been passed. It is admitted that the alteration in the rules by the deletion of the paragraph in Rule 22 was not ratified at the meeting. Its ratification was not even proposed. Accordingly this paragraph again became part of the rules. It is admitted that absent seamen were not allowed to vote on the resolution to revoke the expulsion order. It is submitted that this was proper because the amendment effected by the deletion of the paragraph of Rule 22 continued in force until the end of the meeting. The correctness of this view depends on the meaning of the concluding words of Rule 23 which provide that an emergency alteration in the rules made by the executive shall require to be ratified at the next annual general meeting and “will remain operative otherwise only to that next annual general meeting.”This appears to me to be capable only of meaning that alterations to the rules made under the emergency provisions of the rule cease to have effect unless ratified at the annual general meeting. The purpose of the provision requiring ratification in order to continue an interim alteration of the rules in force was to give the members at the annual general meeting an opportunity of deciding whether they wished such an alteration to remain as part of the rules. Accordingly it would be necessary if it was proposed to deprive the absent members of their voting rights to give them an opportunity of voting on the question. In my opinion the effect of the proviso is to prevent the rule in its amended form from operating once the general meeting has begun unless it is ratified by a majority of the members including absent seamen in benefit.
As the vote on the revocation of the expulsion of the plaintiff was not taken in accordance with the 1954 amendment of Rule 22, the Labour Court were right in holding that the plaintiff was not a member on the critical date. Earlier in this judgment I have expressed the view that had the plaintiff been restored to membership in accordance with the rules that he should be regarded thereafter as a member on the 14th November, 1957. As this has not been done he is not entitled to be a candidate or vote in the election now pending.
I wish to make it clear, however, that had my view as to this prevailed I am not to be taken as holding that the Labour Court should hold up the election for the purpose of giving the plaintiff an opportunity of having a resolution for revocation of his expulsion submitted and voted upon in accordance with the rules. My opinion merely is that if he had been regularly restored to membership before the election I would hold him qualified to be a candidate and to vote. As it is obviously necessary to hold the election with as little delay as possible, it would not be justifiable further to hold it up in order to allow the Union to consider the question of restoring the plaintiff to membership.
In my opinion this appeal should be dismissed.
LAVERY J :
I agree with the judgment of the Chief Justice that the resolution of the 11th September, 1957, purporting to expel the plaintiff from membership of the Union was valid and effective, and that the resolution of the general meeting of the 31st March, 1958, purporting to restore the plaintiff to membership was and is invalid by reason of the manner in which the vote was taken and that therefore the decision of the members of the Labour Court that the plaintiff was not entitled to vote or be a candidate for office at the election was correct. I have had an opportunity of reading the judgment which Mr. Justice Kingsmill Moore is about to about to deliver and I agree with it on all points with which he deals in so far as necessary for the decision of this appeal.
KINGSMILL MOORE J. :
In the latter part of November, 1957, and on into 1958, the operation of the port of Dublin was gravely impeded by labour disputes between the Irish Shipowners’ Association, the Marine Port and General Workers’ Union, and the Irish Seamen’s Union. The Marine Port and General Workers’ Union was a long established Union whose No. 1 Branch catered for seamen, and whose other branches catered for dock workers and general workers respectively. I shall refer to it as the “old Union.” The Irish Seamen’s Union had only been formed very recently, and consisted largely of seamen who had broken off from the No. 1 Branch of the old Union. I shall refer to it as the “young Union.”The Irish Shipowners’ Association was, as its name denotes, an association of employers.
From the end of January, 1958, the Labour Court, first by its conciliation officers and afterwards by means of a full hearing before the Court at which all three contestants were represented, endeavoured to reach a solution of the difficulties. On the 16th February the Court issued its “recommendation”in which it “recommended” the parties to accept the heads of agreement set out in the appendix. The general scheme put forward was that a new union for seamen should be formed, and both the old and the young Unions should cease to cater for seamen. The method of election of officers of the new union was dealt with both in the main recommendation and in the appendix. Paragraph 9 of the recommendation provided that “The Court, having carefully considered the arguments adduced in relation to the voting register is of opinion that the consideration of factors relevant to the termination of the dispute must be confined to those persons who were concerned in the dispute in the first instance.” The appendix provided amongst other things that
(1) A new union shall be formed immediately to cater for seamen only; the Irish Seamen’s Union and the Marine, Port and General Workers’ Union to cease catering for seamen.
(2) A ballot, to be conducted by the Labour Court, shall be taken immediately for the purpose of electing the first executive of the new union.
(3) A person eligible for election to the first executive must be a seaman member as on the 14th November, 1957. . . . A person to be eligible for election must be nominated by at least two persons entitled to vote. In the event of more than seven persons being so nominated a ballot shall be conducted.
(5) Persons eligible to vote in the ballot referred to in clause 2 shall be members of the No. 1 Branch of Marine Port and General Workers’ Union as on the 14th November, 1957.
(13) Any difference of opinion or dispute in regard to this agreement shall be referred to the Labour Court.
The recommendation was accepted in writing by all parties and the Labour Court took steps to carry it out, to secure nominations for the executive of the new union, and to draw up the list of persons entitled to take part in the ballot. A further appendix to the recommendation was issued providing, amongst other matters, that a person eligible for election to the first executive must have been a seaman member of No. 1 Branch of the old Union as on the 14th November, 1957, and must be nominated by at least two persons who were also seamen members of the Branch on that date.
The plaintiff was nominated by duly qualified nominators for the posts of general secretary, assistant general secretary, and member of the executive of the new union. The Irish Seamen’s Union (the young Union) objected that he was ineligible for election and also ineligible to vote in the ballot as he was not a seaman member of No. 1 Branch “as on”the 14th November, 1957. The Labour Court decided to investigate the matter and sent notice of their intention to hold such an investigation to the parties to the original dispute and to the plaintiff. After conducting such investigation and hearing evidence the Court decided that the plaintiff was not eligible for election nor was he eligible to vote in the ballot. The Court purported to act not under any statutory power but under the provisions of clause 13 of the recommendation, whereby any dispute or difference in regard to the agreement was to be referred to the Labour Court.
The plaintiff thereupon took steps to challenge this decision and issued a summons, naming as defendants the chairman, deputy chairman and ordinary members of the Labour Court. In the summons and statement of claim he claimed declarations that he was eligible for election to the executive of the new union and entitled to vote in the ballot, and further relief by way of mandatory injunctions, mandamus,and prohibition, to enable him to give effect to his claims.
After a lengthy hearing the trial judge, Mr. Justice Haugh, dismissed the claim on the ground that the determination of the Labour Court as to the eligibility of the plaintiff was final and unappealable because of the provisions of s. 17 of the Industrial Relations Act, 1946, which enacts that”No appeal shall lie from the decision of the Court on any matter within its jurisdiction to a court of law,”
By the Act the Court is empowered to give a decision on various specified matters, but it has no power when investigating a trade dispute under s. 68 to do anything more than make a recommendation, which has no binding force or effect. If the parties to the dispute agree to accept the recommendation it becomes binding on them only by reason of their agreement inter se. The determination of the Court in regard to the eligibility of the plaintiff was made not in pursuance of any power or jurisdiction given it under the Act but in pursuance of the agreement of the parties to the dispute to accept the terms of the recommendation, one of which was that any dispute or difference was to be referred to the Court. The only jurisdiction which the Court was exercising was a jurisdiction to act as an agreed arbitrator. I think s. 17 must be confined in its operation to a decision given in the exercise of a jurisdiction conferred by the Statute, and does not extend to a decision under an agreement to arbitrate, unless perhaps in a case under s. 70 where the Court undertakes to arbitrate on atrade dispute at the request of the parties. The recommendation as to the settlement of the trade dispute was not and did not purport to be an arbitration award and the determination as to the eligibility of the plaintiff was not a determination of a trade dispute as defined in s. 3 of the Act. I do not think that the decision of the trial Judge, that he was precluded by s. 71 from entertaining the case, can be supported. It is necessary to consider whether the decision of the Labour Court, acting as arbitrator, that the plaintiff was not entitled to stand as a candidate for office, or to vote in the ballot, was correct in law: which involves a decision whether the plaintiff was or was not a seaman member of No. 1 Branch of the old Union “as on” the 14th November, 1957, within the meaning and intention of those words in the agreed terms of settlement.
The plaintiff joined the old Union (then known as the Irish Seamen’s and Port Workers’ Union) on the 17th November, 1949, having been for many years an active seaman. In May, 1951, he was elected branch secretary of No. 1 Branch and ceased to be a seafarer. In March, 1954, he became general secretary of the Union and so continued till the 17th November, 1956, when he resigned as secretary, but retained his membership. On the 10th December he was appointed to be general secretary of the Irish Pilots and Marine Officers Association, which may be regarded as at least partly an employers’ association. He was a paid official but not a member of the association.
The general secretary and executive committee of the old Union regarded the position of the plaintiff as anomalous, considering that the duties of a member of a workers’ union and the secretary of an employers’ association were incompatible, and called on him to resign. He refused and the executive committee thereupon expelled him from the Union. He thereupon appealed against his expulsion to the next annual general meeting of the old Union, as he was entitled to do under the rules. At the meeting, held on the 31st March, 1957, the executive committee proposed a resolution in the following terms:
“That the expulsion of Desmond Branigan by the executive committee of the Union be revoked as from the date of the adoption of this resolution and that he be given an opportunity to appear before the executive committee to show just cause as to why he should not be expelled from membership for the reasons already advanced by the executive committee in their letter to him of the 8th March, 1957.” The meeting was adjourned till the 7th May to allow voting papers to be sent to members of the Union then at sea, as was required by the rules in force, and on the return of the voting papers the resolution was carried at the adjourned meeting.
I am of opinion that the action taken was within the powers of the general meeting. In effect it allowed the appeal and restored the plaintiff to membership, but called on him to meet specific charges contained in the letter of the 8th March, and warned him of the action which could be taken if he did not do so.
On the 17th June the general secretary wrote to the plaintiff, setting out in detail the grounds of complaint against him, and summoning him to answer the charges at a meeting on the 25th June at a time and place stated. The plaintiff replied threatening legal action, but did not attend the meeting, and no action was taken against him in his absence. He was notified that a further meeting would be held on the 31st July which he was invited to attend. Again he did not attend and another meeting was fixed for the 11th September to which he was again invited. He replied through his solicitor intimating that he would not attend. At the meeting on the 11th September a resolution was passed that in view of the plaintiff’s refusal to attend he be expelled from membership of the organisation for conduct inimical to the best interests of the members and unbecoming a member of the Union. The expulsion was to take place from the date of the meeting.
By rule 17 of the rules of the Union the executive committee had power to expel for the reasons stated. The plaintiff had received the fullest notice of the various charges against him, and was given every opportunity to make his defence. It appears to me that the expulsion was regular and plaintiff ceased to be a member of the Union just over two months before the critical date of the 14th November. The plaintiff exercised his right of appeal to the next annual general meeting of the Union which was held on the 30th March, 1958. On a vote of the members present in person the appeal of the plaintiff against expulsion was upheld, and subsequently he was given membership cards of the Union for the years 1957 and 1958 and arrears of dues were accepted from him. The register of members which had been furnished to the Labour Court had not contained the plaintiff’s name but, after re-instatement, the secretary to the Union attended and inserted his name.
On these facts it was contended before the Labour Court and the High Court, and on appeal before the Supreme Court, that the effect of the upholding of plaintiff’s appeal by the annual general meeting of the Union was retroactively to wipe out the expulsion and leave the plaintiff in the position of a person who was a seaman member of No. 1 Branch of the Union on the 14th November. To this it was replied, first that he was not a seaman member as required by clause 3 of the terms for settlement, secondly that the purported restoration was invalid as the vote was not properly taken at the annual general meeting, and thirdly that the true meaning of clauses 3 and 5 was that the position must be considered as it stood on the 14th November, 1957, and the effect of anything that had happened subsequently must be ignored.
Admittedly the plaintiff had not been a seafarer since 1951, having confined himself to the duties of a union official, but he had remained as a seaman member of No. 1 Branch which was the qualification laid down for eligibility to vote by clause 5 and although the wording of clause 3 is “seaman member” I think that membership of No. 1 Branch as a seaman would be sufficient qualification.
The second objection seems to me to be fatal. The rules of the Union as altered in 1954 provided by rule 22 that the votes of seamen members absent from their home port on board ship should be taken and recorded for all purposes in respect of annual general meetings in such manner as should be appropriate and sufficient, and by rule 11 (8) that no decision was to be come to until the votes of such members had been taken and recorded. Rule 23 provides that, in the event of it becoming necessary to alter the rules in the interval between one annual general meeting and another, the executive committee with a consent of a majority of two-thirds of the members thereof should have power to make such alteration of rules, but such alteration required to be ratified by a majority of benefit members present and voting at the next ensuing annual general meeting and remained operative otherwise only to that next annual general meeting. Acting in pursuance of this rule the executive committee on the 18th February, 1958, in order to facilitate the ending of the labour dispute and secure an early vote on the recommendation of the Labour Court, had rescinded rule 22 (1) and rule 11 (7) and (8) thus making it unnecessary to take the votes of absent seamen. At the next annual general meeting no move was made to ratify this alteration and the meeting came to an end without any such ratification. The plaintiff contended that the meaning of rule 23 was that any alteration of the rules made by the executive committee should remain valid till the termination of the next annual general meeting and, accordingly, that the vote of the members actually present at such meeting was effective to annul his expulsion without steps being taken to record the votes of absent seamen. I think this is an inadmissible interpretation of rule 23. The earlier portion of that rule gives the power of altering, amending or rescinding a rule or making a new rule to a majority of benefit members present at an annual general meeting subject to the provision already mentioned. That provision is clearly meant only to bridge a temporary gap till the annual general meeting is held and an alteration by the executive committee can only be valid until the time when it can be considered by the annual general meeting, which is until the commencement of the proceedings. Accordingly, the attempt to rescind the expulsion of the plaintiff and allow his appeal was inoperative, as no vote of absent seamen was taken in the manner provided by the rules then in force.
I am also of opinion that the third objection is valid. Clause 9 of the recommendation states that the consideration of factors relevant to the termination of the dispute must be confined to those persons who were concerned in the dispute in the first instance. Clause 2 of the appendix provides that the ballot is to be taken immediately and clauses 3 and 5 make only those persons eligible for office or voting who were members “as on the 14th November, 1957.” It seems to me clear that it was intended to take this date as one which determined once and for all those who could vote or be elected to office. There was to be no attempt to swell the register by the addition of new members, nor by members restored to the register subsequently. An immediate ballot of persons who had been concerned in the dispute and only of such persons was contemplated and the use of the words, “as on,” conveys to my mind that only persons appearing on the register as members on the 14th November were qualified.
In my opinion the appeal fails.
O’DALY J. :
I agree with the judgment of the Chief Justice; but I express no opinion as to whether it might be open to the plaintiff to have the election held up until his appeal against expulsion has been properly voted upon in accordance with the rules of the Union.
MAGUIRE J. :
I agree with the judgment of the Chief Justice. I also agree with the judgment of Mr. Justice Kingsmill Moore.
Tierney v. Amalgamated Society of Woodworkers.
Budd J. [1959] I.R.255
The plaintiff in these proceedings, Mr. Patrick Tierney, resides in Galway. In the statement of claim he is described as a skilled workman, being a carpenter by training and occupation, who has been engaged in his trade as a carpenter for upwards of twenty years. The first-named defendant is a trade union, registered in England, but lawfully functioning in this country. It is possessed of a duly issued negotiation licence. The Union has a branch in County Galway, and the remaining defendants are the officials of the Branch. No separate relief is, however, sought against them, and, on the other hand, no point is made that they are not properly added as parties. Although registered in England the defendant Union very properly say that they accept without question that such decree or order as is finally made is binding on them and the Branch. It is right to say that the defendants have shown every desire to have all issues dealt with and have stated through counsel that they have no wish to rely on any technicality, either in the pleadings or otherwise, an attitude that has been reciprocated on the other side.
The plaintiff says that, being a qualified carpenter, of good character and not belonging to any other society, he is eligible for membership of the society in the Galway Branch under the terms of rule 6 of the society’s rules, which prescribe that candidates must be qualified workmen, of good character and must not belong to any other society.
The plaintiff decided to apply for membership of the society early in 1947. The rules require that he should be proposed and seconded at a regular meeting night of the Branch by two members and answer such questions as might be put to him. Accordingly, on the 27th February, 1947, he attended the meeting held on that night. A Mr. Raymond O’Connell and a Mr. Thomas McEvoy whom he believed would propose and second him also attended that night, as well as numerous other members of the Branch. The plaintiff was in fact proposed by Mr. O’Connell, but he was never seconded, and no vote was taken regarding his candidature at that meeting.
Later in 1949 the plaintiff again endeavoured to join the society and notified Mr. James Cox, the secretary of the Branch, of his desire to do so. He duly attended a meeting of the Branch held on the 18th February, 1949, when he gave oral and documentary information as to his qualifications. He was then asked to withdraw. After he had done so a resolution in the following form was passed, after being proposed and seconded, that the plaintiff “be refused admission since it is a well known fact that he is not a genuine carpenter and cannot therefore present any period of apprenticeship.” The plaintiff complains in the pleadings that by this manner of procedure he was not put up for election to membership of the society, as required, or in the fashion contemplated, by the rules, and that the proceedings were, in short, wholly irregular. The plaintiff further seeks declarations that the resolution is not binding in law on him and that he is a qualified workman eligible for membership of the society. He also asks for an order directing the defendants to accept his application for membership of the society and to take all necessary steps for the holding of an election upon his application in accordance with the rules. There are in the pleadings certain allegations of alleged threats made at the time of the first meeting but that matter was not pursued at the hearing.
I accept the plaintiff’s evidence that it is exceedingly difficult for him to get work now in the Galway neighbourhood as a carpenter without a trade union membership card. I believe that the result is to make him dependent on such individual employers as are prepared to employ non-union labour. Employment with big firms and large contractors is, I am satisfied, practically denied to him. The result is that, no matter what his merits as a carpenter are, he must depend, in so far as obtaining work of a carpentering nature is concerned, upon such employers as I have mentioned. In so far as such work is not available he has to depend on such work as he can get as a labourer. It is clear that his status and standard of life would in future be considerably higher if he could obtain a trade union card. I entirely agree with Mr. Conolly, who stated his client’s case with, if I may be permitted to say so, his usual ability, that refusal of membership of a trade union is, like expulsion, a very serious matter for the worker concerned. I notice that Sir Walter Citrine in his book on trade union law says that expulsion from a union may amount to depriving a man of his means of livelihood. The author can undoubtedly speak with authority on trade union matters.
The defendants’ main contentions can be stated shortly as follows. They say that the plaintiff has not shown himself entitled in law to the relief claimed. Indeed, they say he has not shown himself to have any real cause of action. In so far as his claim is alleged to rest on a statutory basis by virtue of the provisions of the Trade Union Act, 1941, they say that on its true construction the statute does not confer on the plaintiff the rights he alleges. In so far as his claim is put on a basis of contractual rights, they say that no privity of contract exists between him and the defendants. Membership of the Union would, it is granted, give him certain contractual rights, but he is not a member of the defendant Union. Apart from that they say that on the facts as presented it has not been shown in any other way that any privity of contract exists otherwise between them. Accordingly, they say, he has no cause of action. Secondly, they say that even if it could be shown that he was in some species of contractual relationship with the defendants, the rule in Foss v. Harbottle (1) applies. If any irregularity occurred in connection with the plaintiff’s application for membership, the Court will not, it is submitted, in accordance with that rule, interfere with the internal management of the affairs of a body such as the defendant Union at the behest of an individual member, or a person with similar rights, since any irregularity that may have occurred can be put right by the body itself. Thirdly, if these contentions are incorrect, they say that the Court has only a limited jurisdiction over a body such as this, that is, a trade union or its branches. It will not give redress, it is submitted, even to members of such bodies, much less to persons in the position of the plaintiff, where the decision complained of has been come to honestly and in good faith under the rules, even though the decision might seem to the Court unfair or unjust. They say that the resolution complained of was passed at a meeting of the Galway Branch of the defendant Union on the 18th February, 1949, after full inquiry, that it was a matter for the Branch to deal with, and that the Court should not assume jurisdiction to question the decision.
In reply, the plaintiff says that the determination was not made directly upon his application for admission or in accordance with the rules and is void in law. That his rights under the Constitution have been infringed by the manner of the determination and failure to make a determination upon his application and, further, that the manner in which the determination was made amounts to a denial of natural justice to the plaintiff. In so far as the point may be relevant on the allegation that the alleged determination of the plaintiff’s application was contrary to natural justice, a matter in connection with which thebona fides of members of the defendant Union may be in issue, the defendants say that the plaintiff was not a qualified carpenter or, at least, that it was open to them on the information before them to come bona fide to such a conclusion.
The defendants’ three cardinal submissions all go to the root of the action. Has the plaintiff a valid cause of action? If he has, does the rule in Foss v. Harbottle (1) apply or are there any grounds upon which the Court can and should interfere with the decision of the Branch?
On the first point the question as I see it is thisassuming for the purpose of dealing with the point that the resolution was not in order and that the rules of the society were not observed in the method of dealing with the plaintiff’s application, has he any remedy in law, seeing that he is not a member of the society? Has he any statutory or contractual rights against the defendants which a Court can enforce or uphold or has he any other rights, analogous, say, to a right of property, which the law protects?
In Rigby v. Connol (1), Jessell M.R., at p. 487, stated that the jurisdiction of the Court to interfere to prevent a member of a society from being improperly expelled was the right of property vested in the member of which he is unjustly deprived by the unlawful expulsion. Fletcher Moulton L.J., in Osborne v. Amalgamated Society of Railway Servants (2), said that a member of a trade union has a right of property in a trade union funds sufficient to justify intervention by the Courts to prevent misapplication of the funds. Lord Justice Denning, in Lee v. The Showmen’s Guild of Great Britain (3) puts it further, and says, at p. 343, that the Courts must also intervene to protect the right to work as well as the right to property. Whether it be to protect his right of property or his right to work, the right of intervention to prevent the unlawful expulsion of a member from a trade union as where there has been a failure to observe the principles of natural justice or to comply with the rules, is not in doubt and was not contested. Whatever right it is that is to be protected, however, is a right acquired by membership. Lord Justice Denning, at the beginning of his judgment in Lee’s Case (3) above referred to, says that the jurisdiction of a domestic tribunal, in that case the committee of a trade union, must be founded upon a contract, express or implied, and that the rules of the particular union he was dealing with contained the contract between the members. The Court will intervene, he points out, to protect a right of contract and property of a member. But what right of property or of contract or what existing right of any sort, one must ask, is a person, who is not a member of a trade union, deprived of by not being permitted to join such union? He is certainly not deprived of any right of property, nor is he deprived of any other right, be it to work or otherwise, which he had before. He is, at most, only deprived of acquiring a right. He can only properly complain of not being granted some additional right or privilege if he can show some valid legal claim to acquire such a right as against those in whose power it is to grant it. Indeed, in every case cited to me as being in point on this issue, with one possible exception, the proceedings were brought by persons who were actually members of clubs, trade unions or other kindred organisations. Such persons generally rely on some breach of contract on the part of the members of the organisation sued, such as a failure to observe its rules, which in the case of clubs and trade unions the Courts have frequently held to embody the terms and conditions of the contract deemed to exist between a club or a trade union and its members. Nearly all the cases were, in fact, expulsion cases. The plaintiff’s advisers, faced with this initial, and to my mind formidable, difficulty, shouldered the burden manfully and put their submissions on this branch of the case in two ways. The first involved placing reliance on an alleged statutory right, and, failing that, they relied on an alleged contract.
On his first submission, relating to the plaintiff’s statutory rights, Mr. Conolly relies on the terms of s. 13, sub-s. 1, of the Trade Union Act, 1941, and in connection therewith he referred me first to the Constitution. Under Article 40 of the Constitution the State guarantees in its laws to respect and as far as practicable by its laws to defend and vindicate the personal rights of the citizen. Mr. Conolly says with some force that the right to work and earn one’s livelihood is just as important a personal right of the citizen and just as much entitled to vindication, as a right of property. Lord Justice Denning says as much in Lee v. The Showmen’s Guild of Great Britain (1), and with respect I agree. This provision of the Constitution I am asked to bear in mind when I come to construe the terms of the section.
Sect. 13, sub-s. 1, of the Trade Union Act, 1941, provides that so long as any trade union not registered under the Trade Union Acts, 1871 to 1935, is the holder of a negotiation licence it shall include in its rules or constitution provisions specifying the conditions of entry and cesser of membership of such union by persons resident within the State. Such provisions are made in the defendants’ rules. They are that a candidate for membership shall be a qualified workman, of good character, belonging to no other society and one who has not acted contrary to the interest of the trade or been expelled from any other trade society for misconduct. All these qualifications, it is said, the plaintiff fulfils. A candidate, then, under the rules should be proposed and seconded at a regular meeting and the election is to be decided by a majority of the members present voting. There are other formalities but these the plaintiff was ready to comply with. It is not pleaded that he is not entitled to succeed by reason of any failure to comply with any formalities such as the payment of proposition moneys or as regards his apparent failure to produce a proposer and seconder on the second occasion when his candidature was considered.
It is submitted that the section in question confers certain statutory rights on the plaintiff. Since the statute provides that the rules must contain the conditions of entry it is argued that it must have been the intention of the Legislature that a member of the particular class to whom the rules as to admission applied should be entitled to enter the union or, at least, be put up for election in accordance with the rules, provided that the candidate has the necessary qualifications. It should be assumed, it is said, that the Oireachtas had in s. 13 the object in view of enforcing that right to earn one’s livelihood which Mr. Conolly says is one of the personal rights protected by the Constitution. It follows, then, he says, that there exists in law an implied obligation on the part of the union to give a candidate for admission the benefit of the rules and to allow him to stand for election. It is not to be supposed, he said, that the Legislature would impose conditions which were not enforceable and which did not create legal rights. The Legislature must have had a definite object in view in enacting this section and, he says, it is obvious from the words used that it was to create legal rights in persons resident in the State desiring to seek entry into trade unions. That, to my mind, however, ignores several other very possible objects of the section. The explanation of this section may well be, as Mr. Leonard says, to make sure that persons entering unions have proper qualifications, so that employers may be assured that they will get properly skilled men if they look for the service of union members. If it is necessary to find some rational object in the section, it may also be that such object was to ensure that the interested class of the public, that is, possible candidates for membership, might know what they had to do to achieve membership. Again, the object may have been to ensure that all and sundry might see what the conditions were, perhaps in the not unreasonable expectation that a trade union was unlikely to publish and seek to maintain conditions which public opinion would brand as unfair. In any event there are several possible objects of the section. The plaintiff is not therefore in the position in which he can say:”What other object could the Legislature have had, consistent with giving a reasonable and sensible meaning to the words used, than that for which I contend?”
In further support of the contention that this section of the Trade Union Act, 1941, gives certain statutory rights to certain persons of whom the plaintiff is one, I was referred to the decision in Norey v. Keep (1). That case dealt with those provisions of the Trade Union Act, 1871, which provided that the rules of a registered trade union must contain provisions in respect of the inspection of the books by every person having an interest in the funds of the union. The rules of the union mentioned in the case duly provided that its books should be open to the inspection of members and of all persons having an interest in the funds. Mr. Justice Parker, at p. 564, says that it would appear that the persons interested had a statutory, or at any rate semi-statutory, right, since the rule was made in accordance with the Act, to inspect the books and accounts of the society. Applying this reasoning to the present case Mr. Conolly says that since the section provides for the making of rules containing the conditions of membership for persons resident in the State, it impliedly confers on such persons a right to take advantage of the conditions and, if they comply with them, to be put up for election. I do not think that there is a true analogy between the case of Norey v. Keep (1)and the present case. The section of the Act of 1871, relied on in that case, provided that certain provisions must be made in favour of a specified class of persons and the rules gave these rights. These rights were held enforceable. Can it be said on a reasonable reading of s. 13 of the Act of 1941 that persons resident in the State had any enforceable rights conferred on them? The section is not so expressed. Since the intention may well have been to secure any of the objects I have mentioned above, the creation of such a right is not a matter of necessary implication. If any right is conferred on anybody, is not the nature of such right, at the most, to have rules with regard to terms of entry made, and no more? It would seem to me that this section really imposes a duty rather than creates a right. The due observance of the terms of the section is enforced by fine in case of noncompliance, which seems to indicate the imposition of a duty rather than the creation of a right. The terms of the Trade Union Act relied on in Norey v. Keep (1) seem to me to indicate that the aim and intention of the Legislature was to give a right of inspection of the books to a specified interested class. Here the obligation imposed, as I see it, is to frame conditions of entry and not to create rights in an unascertained body of persons. There is a vast distinction also between altering the rights inter se of persons already in a contractual relationship, which the Legislature has already to some extent regulated, and the creation of new substantive rights between unascertained sections of the community and existing organisations. There is also the difficulty that if the contention that the section confers on some body of persons a right to be put up for election, there seems to be no reason why the contention should not be taken a step further to the extent of claiming that those holding the necessary qualifications should be entitled in law to be elected. If so, that would mean that the Legislature has virtually enacted that trade unions must perforce elect some body of persons to membership whether they like it or not. I venture to think that the Legislature would be surprised to learn that it had done that, having regard to the wording of the section.
When construing the two Acts of 1871 and 1941 it is right and proper to consider the state of the law with regard to bodies such as trade unions and the conditions of entry thereto. The Legislature must be assumed to have known the law as it then stood, prior to these enactments. It is important to view a statute in the light of its proper back-ground when endeavouring to ascertain its true intent. The nature of legislation with regard to trade unions in general at the date of the Act of 1871 makes the right said to be given one which one would reasonably expect to find. It fits in with the general scheme of such legislation. The right contended for here, on the other hand, is altogether revolutionary. It has heretofore been of the essence of a voluntary organisation that the members, and they alone, should decide who should be their fellow-members. Otherwise, the element of “voluntariness” ceases to exist. A social club, for example, could scarcely exist if the association of members ceased to be voluntary. If the Oireachtas had intended to create any statutory right in a member of the public to have his candidature for admission to a trade union brought before a meeting, and, as might reasonably be thought to follow logically, to have his candidature accepted provided he fulfilled the conditions, it is inconceivable to me that the Legislature would not have conferred such an important and revolutionary right in clear and express terms instead of leaving it to be spelt out of the enactment in such a devious fashion. Would it not be very simple to add a paragraph to the effect that any person exercising the calling catered for by the union should, on complying with the conditions and formalities provided for by the rules, be entitled to be put up for election for membership.
I do, of course, see that there are in modern times many differences between trade unions and other voluntary organisations, such as social clubs, and that a somewhat different legal concept has come to be applied to trade unions.
In the particular matter which I am considering, however the voluntary nature of the organisationI do not see that a trade union stands at present on a different footing from any other voluntary organisation as regards the free choice of new members. I am unable to spell out of this section any statutory right by virtue of which would-be candidates for membership of a trade union may enforce against such union the right to be put up for membership, and I do not construe the section as conferring any such rights on the plaintiff as against the defendants in this action.
Apart from the alleged statutory right of the plaintiff just dealt with it was sought also to found a cause of action based upon a contractual right. It was contended that some sort of privity of contract existed between the plaintiff and the members of the defendant union. This was on the analogy of the case of Carlill v. Carbolic Smoke Ball Co. (1).The rules of the Union, it was suggested, constituted a continuing offer to any interested member of the public to contract. The plaintiff, then, by submitting himself as a candidate, engaging to pay his proposition fees, attending at the meeting and so forth, had, it was suggested, accepted the offer. The consideration necessary to bind the contract consisted, it was said, of the detriment suffered by his attendance at the meeting, the obtaining of credentials and answering questions put to him. An obligation thus arose of a contractual nature to put him up for membership. So long as the rules are there, the plaintiff maintains that that offer cannot be revoked. The argument even went so far, as indeed I think in logic it must go, as to suggest that a person desiring to go forward for membership of a social club, assuming that he succeeded in finding a proposer and seconder and otherwise complied with the rules, could insist as a matter of law on being put up for election. Whatever rights a proposer and seconder might have, who being members could rely on the rules as containing part of their contract with their fellow-members, this will strike most people as a startling proposition. Ingenious though the argument is, it has, to my mind, one simple and fatal flaw. Before two parties can be held to have agreed contractually, in the sense that their agreement is to become binding and enforceable in some way in law, they must have the intention to contract. The whole relationship, as I understand it, is based upon intention. The offer made must, as I understand the law of contract, be shown to be an offer to become contractually bound. Mr. Justice Murnaghan in Latchford’s Case (2) at p. 41, in considering whether a contract existed in that case by way of an offer by the Minister for Supplies having been accepted by the plaintiff company poses the question, “Can it be established that the Minister for Supplies was willing to undertake any obligation?” He then goes on to say that the whole background of the realities was against any offer by the Minister to make himself liable and he finds that no contract existed because, as I understand it, the Minister evinced no intention to become contractually bound.
I see no reason for supposing that the members of a trade union, any more than the members of a social club, by agreeing between themselves as to what the terms and conditions of admission to membership of their voluntary association shall be, and incorporating their agreements in rules, have any intention whatsoever in so doing to make any offer to any member of the public or any section of the public to enter into any legal obligations of a contractual nature. In particular I cannot see that they thereby evince any willingness to become contractually bound to put up any willing member of the public for election to membership of their body. Nothing in the evidence before me or in the surrounding circumstances or the wording of the rules leads me to the conclusion that the present rules of the defendant Union contain any offer to contract in the fashion alleged or indicates to me any intention on the part of the members as a body to enter into contractual relations with anyone in connection with the matter of candidature for membership of the Union.
I have already mentioned that there has not been cited to me any case in which a person in the position of the plaintiff had succeeded in obtaining relief of the kind sought in this action. In all the cases cited the plaintiff was a member of the club or union concerned and therefore entitled to rely on his contractual relationship with the particular club or association concerned. I mentioned, however, one possible exception, the case in question being that of Weinberger v. Inglis (1). As it looks at first sight as if that authority might support in some degree the plaintiff’s contentions, I wish to deal with it. The plaintiff was a member of the London Stock Exchange. Members of that body are elected annually and come up for re-election by the Committee on the first Monday in March for the year commencing on the 25th March. The plaintiff was not reelected on the ground that he was of enemy birth. He then brought an action to impugn the decision of the Committee on the ground that it was arbitrary and capricious
and based on irrelevant matter. The decision of the Committee was upheld on the grounds that they had exercised their discretion bona fide and that the Court had no jurisdiction to interfere. Since it was an election case it might possibly be thought that the case could be relied on as authority for the proposition that a candidate for election to a voluntary association had at least some species of contractual rights and might be able to show himself in certain circumstances entitled to relief. On reading the judgments I am satisfied, however, that the case does not assist the plaintiff here. The fact of the matter is that the plaintiff in that case was in the first instance still a member when refused re-election. He had paid a large sum for the right of admission on election and while the rights of persons in his position under the terms of certain relevant documents were somewhat obscure, it seemed quite possible that the peculiar position of the plaintiff might well have given rise to contractual rights. Each court, however, which dealt with the case preferred to deal with it on the basis I have mentioned, which was quite sufficient for the determination of the action in the defendants’ favour. It was therefore unnecessary to consider what might be regarded as a preliminary point, namely, whether any contractual relationship did in fact in law exist. Mr. Justice Astbury, the trial judge, stated (1) that he had assumed for the purposes of his decision, given on the other grounds, that the plaintiff had sufficient proprietary interest to entitle him to sue for relief in that Court, but he makes it clear that he is not deciding that point. In the House of Lords the Lord Chancellor, at an early stage in the argument of counsel for the defendant, suggested that they should deal with the question whether the Committee had exercised their discretion in a bona fide fashion. Counsel acquiesced and addressed arguments to the House on the assumption that the Committee owed a duty in respect of the question of election to the members. The decision of the House then turned on the question of the bona fides of the Committee and of their not having acted arbitrarily or capriciously. The other learned Law Lords present must, I think, be assumed to have acquiesced in the course taken by the Lord Chancellor and to have also proceeded on the above assumption and without deciding, since it was unnecessary, whether anything was owed to the plaintiff. This case therefore does not in any way affect the view that I have formed on this branch of the case, which is that the plaintiff and defendants never entered into any contractual relationship and that the plaintiff has no enforceable legal rights against the defendants.
The findings I have so far made would be sufficient to determine the action. Counsel, however, took much time and trouble to argue further matters in issue. I think that it is only right that in a case of this nature I should express my views on all the matters argued and make such findings of fact as are necessary, so that if I have fallen into error the parties’ rights can be determined without the necessity of an expensive re-trial. In considering the further matters argued I must perforce proceed on a basis purely hypothetical, having regard to my findings so far made, and I must assume for the purpose of dealing with the second and third points, what I have already referred to as going to the root of the action, that the plaintiff has in some fashion a right to be put up for membership and is entitled to the benefit of the rules with regard to election.
On the above assumption the plaintiff says that the rules have been disregarded and that in the result he was never really put up for election at all. The defendants say in reply that the rule in Foss v. Harbottle (1) applies in this case. They have the good fortune to be able to show its actual application to the case of a trade union in Cotter v.National Union of Seamen (2) by the Court of Appeal in England.
In Cotter v. National Union of Seamen (2) the plaintiffs claimed a declaration that a certain special general meeting was irregularly convened and that certain resolutions passed at the meeting were invalid and they sought injunctions restraining the union from acting on these resolutions. It was held that the rule established in Foss v. Harbottle (1)with regard to irregularities in matters which are intra vires the powers of a company is also applicable to a trade union. The Master of the Rolls, at p. 100, states his view of the effect of the rule and also quotes the views of Mellish L.J. as expressed in McDougall v. Gardiner (3), as follows:”If that be so, and the question of ultra vires is not sustainable by the plaintiffs, what is left of the complaints made about what are called these £10,000 resolutions? They are matters really of irregularity, and no more; and Mr. Bennett has argued that upon such questions the doctrine of Foss v. Harbottle (1) appliesa case decided as far back as 1843, and usually used to convey a reference to the doctrine that where a constitution is given by incorporation to a company, whether under the Companies Acts or under statute, the corporation itself can put right what apparently is wrong, and that these matters of irregularity do not enure to defeat the purpose and end for which the transactions or resolutions have been adopted, but are mere matters of internal management, which do not give a right to individual members of the corporation to come in their individual characters and seek to put an end to these proceedings, for they have no power and no right to speak on behalf of the whole bodythe whole entityand the entity itself could put itself right by holding fresh meetings to cure the irregularities. In MacDougall v. Gardiner (1), at p. 25, which is coupled with Foss v. Harbottle (2), the principle is thus explained by Mellish L.J.:’Now if that gives a right to every member of the company to file a bill to have the question decided, then if there happens to be one cantankerous member, or one member who loves litigation, everything of this kind will be litigated; whereas if the bill must be filed in the name of the company, then, unless there is a majority who really wish for litigation, the litigation will not go on. Therefore, holding that such suits must be brought in the name of the company does certainly greatly tend to stop litigation. In my opinion, if the thing complained of is a thing which in substance the majority of the company are entitled to do, or if something has been done irregularly which the majority of the company are entitled to do regularly, or if something has been done illegally which the majority of the company are entitled to do legally, there can be no use in having a litigation about it, the ultimate end of which is only that a meeting has to be called, and then ultimately the majority gets its wishes.’ That being so, applying that principle, if it is applicable, it would appear to cover all the objections which are taken and which I have catalogued.” Lord Justice Lawrence states the rule in so far as applicable to the facts of that case in the following terms, at p. 107:”The rule in Foss v. Harbottle (2), so far as applicable to the facts of the present case, can be quite generally stated as follows: if an act is intra viresthe corporation, and therefore one which could be sanctioned by the majority of the corporators properly assembled in general meeting, the Court will not entertain any proceedings to restrain the doing of the act resolved upon unless such proceedings are brought by the majority of the corporatorsand in the name of the corporation itself.” The Court of Appeal held that the rule in Foss v. Harbottle (2) applied since the defendant union must be treated as a legal entity which had property and was governed by its own rules. If irregularities were committed in the convening and conduct of its meeting at which the resolutions were passed the matter could be regularised by the passing of fresh and effective resolutions. With respect I see no reason to differ from the views expressed by the Court of Appeal in England as to the applicability of the rule in the case of certain proceedings of trade unions and that being so I have to consider if it should be applied in this case.
The complaint of the plaintiff with regard to what happened on the 15th February, 1949, is thisthat instead of his candidature being put directly to the meeting and voted upon, a motion of a negative variety was proposed and passed, that he be refused admission, with reasons for this rejection super-added in the words, “since it is a well known fact that he is not a genuine carpenter and could therefore not produce any proof of apprenticeship.” These additions to the resolution were certainly not calculated to improve his chances of election. The wording, however, loses a good deal of the sting when it is appreciated that the question of apprenticeship was a matter that might legitimately have been considered when his candidature was being discussed. Moreover, I do not think that the working men members of a trade union branch can be expected to word their resolutions with the nicety and precision that one would expect of a board of directors with a lawyer secretary. However (without so finding) I will assume for the present purposes that the resolution is in an objectionable form and that it does not comply with the rules, which again I will assume require putting the candidature directly, though I think that is open to question. Even then is not this something of the kind instanced by Mellish L.J., something done irregularly which the majority are entitled to do regularly, and which can be put right by the members of the body itself as part of the internal administration of the body? Mr. Conolly submitted that the rule in Foss v. Harbottle (1)could not be applied in the case of proceedings by a person not a member of the defendant organisation. He says that the rule only applies to actions by members of a company or organisation, one of the reasons for the rule being that proceedings of the kind contemplated must be brought in the name of the company. A minority member cannot sue in the name of the company, but a non-member, he says, is not thus trammelled. He can sue in his own name as the plaintiff has done here. In my view, however, the rule is based also, and primarily, on the principle that the Court does not intervene in matters intra vires a company or corporate organisation, which such a body can put right itself and where the majority wish will ultimately prevail. To do so would encourage a multiplicity of useless actions. If that be correct I see no reason why the rule should not apply to proceedings by a non-member of an organisation such as a trade union, that is, always assuming him to have the rights alleged, be they statutory or constitutional. Is not the position here that the plaintiff can be put up for membership in a regular fashion in accordance with the rules, if that has not been done already, and then the majority can again reject him on a vote? There was no suggestion that the defendant Trade Union in this case differed in any way in its nature or constitution from the National Union of Seamen so as to prevent the rule in Foss v. Harbottle (1) from applying to its intra vires acts and the decision of Cotter v. The National Union of Seamen (2) therefore seems to me very much in point. If, therefore, I were to proceed on the basis that the plaintiff has some form of legal relationship with the defendant Union which would enable him to rely on the rules I would then have to hold that the rule in Foss v.Harbottle (1) applies in connection with the passing of the resolution and that I could not intervene in so far as the resolution is concerned.
I now come to deal with the remaining point relied on by the defendants which is thisassuming a contractual or some other legal obligation to the plaintiff to exist, so that the members of the branch therefore owed him a duty, and assuming further that the rule in Foss v. Harbottle (1) does not apply, then since the decision not to admit him to membership was given in good faith and in accordance with the rules it cannot be impugned in this Court, even though it may seem unfair or unjust. The defendants rely on Weinberger v. Inglis (3), referred to above, and contend that it is authority for the proposition that the Court will not interfere with the decision of the members of a voluntary organisation, who have in a bona fide fashion refused to re-elect a member. They rely further on the decision, Maclean v. The Workers’ Union (4), a decision frequently cited in trade union cases. The judgment of Maugham J., as he was then, in that case contains a careful consideration of the attitude of the Courts with regard to what may be described as domestic tribunals, a phrase which, as he says, may be conveniently used to include inter alia the members of trade unions. In the course of his judgment he points out that the jurisdiction of the Courts is clearly limited and he expresses the view that, provided that the rules are strictly observed and that the members have acted honestly and in good faith, the Court cannot, as a general rule, intervene to give redress to those who have suffered hardship by the decisions of such bodies. I have not heard these views dissented from and, speaking with respect, I believe them to be correct.
The principles of natural justice are sometimes invoked in a broad, if not a vague, fashion in cases of this kind. To be sure, certain fundamental rights must be observed. The person concerned must be heard, and, if there is a charge, he must be informed what it is. It is necessary, however, to examine the allegations in each particular case. The plaintiff here says that the determination on his application was not made directly or in accordance with the rules, that his rights under the Constitution have been infringed by reason of the manner in which the alleged determination was made and that the manner thereof also amounted to a denial of natural justice to him.
I wish, on this branch of the case, to say a few further words about the resolution. The resolution is in negative form; it proposes that the plaintiff be not admitted and it gives reasons based upon a statement of fact and an assumption, both prima facie damaging to the plaintiff’s candidature. The rules provide that a candidate shall be proposed at a regular meeting night and a proposer and seconder are required by implication. The election is to be decided by a majority of the members present voting. It is argued that the method adopted of passing this negative resolution, with the super-added reasons, was a breach of the rules. The proposition, it is said, should have been put directly and there should have been an actual formal vote taken by ballot or in some recognised fashion. I accept, however, the evidence that there was no proposer or seconder forth-coming and in my view the rules do not require that a candidature is to be put to the meeting when there is neither a proposer or seconder forthcoming. The rules as to the election being decided by a majority of those present voting can only apply to persons proposed and seconded, the person concerned has not been put up for election until proposed and seconded. Further, my view of the evidence is that the meeting was, rightly or wrongly, unanimously against the plaintiff and in such circumstances a negative resolution was not, in my view, in breach of the rules. A negative resolution would seem in fact the only way of expressing the views of the meeting. The direct proposition could not be put and I do not find anything in the rules preventing reasons being added to this or any other resolution of the same type. Accordingly, in my view, that resolution, at first sight objectionable, is in the prevailing circumstances not an infringement of the rules, and even if the rule in Foss and Harbottle (1) does not apply I would not be prepared to hold that the form, or mode, of procedure in dealing with the resolution constituted a denial of natural justice to the plaintiff.
As regards the plaintiff’s constitutional rights, in particular the right to work, which Mr. Conolly says is one of the personal rights which the Constitution upholds, I find it difficult to see how the action of the defendants can be challenged in this respect. At the worst their actions can only be regarded as interfering with the plaintiff’s right to work in a particular way as a member of a particular body, that is as a carpenter, who is a member of this Union, and I cannot see that that amounts to any infringement of the Constitution.
Lastly there is the suggestion that the manner of the determination was a denial of natural justice and there is the claim for a declaration that the resolution is invalid and not binding on the plaintiff. This, I understand from the argument, though it is not very clear from the wording of the plea, refers not only to the form of the resolution and the mode of procedure in dealing with the application but refers also to the rejection of, or the failure to admit, the plaintiff having regard to his contention that he is a qualified man within the meaning of the rules, who has otherwise complied with the rules and all the requirements of the defendants’ Union.
The resolution states the ground for rejection that he is not a genuine carpenter and therefore could not present any period of apprenticeship. The Union is bound under the terms of the Trade Union Act, 1941, s. 13, to include in its rules or constitution the conditions of entry to membership. The rules do not specifically say that serving a term of apprenticeship is a necessary qualification. I am satisfied that in some instances, indeed, service of a term of apprenticeship was not insisted upon. Further, it was stated on behalf of the defendants that in alleging lack of genuineness in the resolution it was not at all intended to infer anything in the nature of lack of skill. Indeed, I am assured that the Union does not concern itself with any consideration as to whether a candidate is a good or bad carpenter in the sense of possessing or lacking skill in his trade. Since serving an apprenticeship is not a necessary qualification, and as no particular standard of skill is required, the plaintiff says he cannot have been properly rejected by reason of lack of skill or failure to serve an apprenticeship. Affirmatively, then, he says that he is a man who has many years of carpentering experience behind him and that he has done all species of practical carpentry work. That, he contends, should be sufficient to show him to be genuine in the sense of not making any untrue claim. It was, therefore, so manifestly unjust to reject him on the grounds alleged as to indicate clearly that the members of the Branch were acting unfairly or unreasonably in rejecting him or, at least, in not putting his candidature directly to the meeting. The very terms of the resolution, put in the negative form, with untrue reasons therefor super-added, further support, he says, the inference of an unfair approach to the consideration of his application. In that sense, the plaintiff says, natural justice has been denied to him and his rejection was therefore invalid.
The defendant Union, in reply to all this, rely on the rules and say it was a matter for them. As I see it, the question I have to decide on this issue is whether the action of the Branch in rejecting the plaintiff in the manner and for the reasons alleged involved a breach of the rules, and whether the action of the members was honest and bona fide. Since it is conceded that the plaintiff is of good character, does not belong to another union and has not acted contrary to the interests of the trade, the controversy really centres around the rule requiring that an applicant for membership should be a qualified workman. In considering whether there has been a breach of the rules or a failure on the part of the defendants to act bona fide, a good deal depends on the meaning to be given to the expression, “a qualified workman.”Mr. Leonard, and the secretary of the Branch, said that it was a matter for the members to say what qualifications they were prepared to accept. That may be taken in practice, I think, to mean what they are prepared to accept as the proper qualification of any particular individual on the night of his election. That may be highly unsatisfactory from the point of view of prospective candidates, who cannot definitely ascertain previously what qualifications they must have. It may also be unfortunate from the point of view of the public in that it cannot be known what standard this Union applies. Even the members themselves must be placed in great difficulties in that they are subject to a fine if they knowingly propose an unqualified person, yet they cannot, it would appear, have any means of knowing in advance what constitutes a qualified person. It may, however, be that the defendant Union is entitled to take up that attitude in law, at any rate so far as these proceedings are concerned. I say “as far as these proceedings are concerned” because it may be that if the term, “qualified,”does not refer to some definite and ascertainable standard, which the public and would-be candidates can ascertain, the rules may not comply with the Trade Union Act, 1941, in that they may not contain the conditions of entry within the meaning of, and as required by, the statute. That, however, was not in issue in this case and I express no view on the matter and merely indicate that I have not overlooked the possibility.
If the plaintiff could show that there was a standard laid down by the rules as to qualification which he, beyond”yea” or “nay,” possessed and that he was nonetheless rejected because he did not possess other qualifications, not in fact required by the rules, a departure from the rules would be established and at least a prima facie case of lack of honest dealing. Likewise, if he could show, while no particular or specified qualifications are required by the rules, that the Branch has nevertheless always accepted certain qualifications as sufficient and that he actually possesses these, that would arouse such suspicion as to at least demand some good explanation.
The plaintiff claims, of course, that he is qualified both in the sense that the word is used in the rules and in the fashion accepted by the Union in practice. Tierney undoubtedly worked as a labourer for considerable spells and, indeed, in hard times appears to have taken whatever work he could get, a course many will applaud. Although anxious to improve himself, he did not serve any recognised form of apprenticeship, nor did he, when commencing to earn his livelihood, work in the way which the members of the Branch regard as serving an apprenticeship. I am satisfied, however, that he worked for at least a year with a relative, O’Flaherty by name, learning the trade of wheelwright and carpenter and that he has for a period running into many years done carpentry work of practically all kinds, such as making and hanging doors, making windows, repairing and laying floors, erecting wooden greenhouses, repairing and making stairs, fixing wooden sheeting, roof work, laying screeds and so forth. I am satisfied, moreover, that he was employed for long spells by individual employers, doing in the main carpentry work. I would deduce from the length of some of his various employments that his work must have been satisfactory to his employers, which would indicate some reasonable degree of skill. He must inevitably have gained considerable experience in his trade and could hardly have failed to attain to some fair degree of skill unless he suffered from great stupidity or some other defect, which is not suggested. Indeed, not a word was said against his skill throughout the case. Instead, he was apparently thought good enough to work at carpentry alongside the Union men from time to time. He has therefore many claims to be called a qualified carpenter, in the broad sense of the term. But the term is used in a set of rules and in so far as it is relevant to the issues I am considering I have to consider its meaning in these particular rules.
What is a qualified workman within the meaning of the rules? The rules contain no definition nor am I able to deduce the meaning from the rules as a whole. I do not myself know of any accepted standard on which I would be entitled to judge whether any particular individual was qualified as a carpenter or not. There are a great number of possible constructions that different persons might place on the word. One might consider apprenticeship in the strict sense a necessary preliminary to qualification; another might think that the attainment of some degree of skill is all that is required. A third might think it meant both these things, and another something else. It is in the context a vague and unsatisfactory term. Then what standard am I to apply? A possible answer is a reasonable standard, but again, reasonable according to whose notions? I have had no expert evidence adduced before me on this matter of standard, and, if what is a reasonable standard must be laid down, I would presumably have to determine it to the best of my ability, albeit I know little of carpentry standards. But I do not think that it really comes to that It must be borne in mind that I am here dealing with a voluntary organisation, entitled, as I have held, to choose its own members, and that these are the conditions of membership laid down by that body in its own rules. If there is no definite abstract standard, and since it is for such a body to control its own affairs, I think that it is for them to say who is or is not a qualified workman. But that is all subject to this, that they must act bona fide, always assuming, of course, some contractual or statutory objection to the candidate to exist. If, for example, a man held every possible qualification, was so highly qualified, indeed, that no reasonable person could say he was not qualified, and such a person was rejected because unqualified, then they would not be acting bona fide and the Court should intervene. Again, if they had imposed a standard and applied it and then, suddenly, departed from it without any explanation in an individual case, that would seem to cast suspicion on their bona fides and at least to call for explanation. It does, therefore, seem relevant to enquire if any standards of qualification have been accepted in this Branch and, if so, what they were, and have they been departed from in the plaintiff’s case without any ostensible good cause.
The secretary of the Branch, Mr. Cox, was cross-examined at some length in an effort to elucidate the attitude of the Branch on this subject of qualification. He maintained for some time that the service of five years’ apprenticeship by a candidate was essential. That did not mean under indentures, he said. Nor, apparently, did it mean anything in the nature of an oral agreement with an employer or any particular skilled workman, because most employers, he agreed, would not be skilled in the trade and the prospective candidates would be most unlikely to remain in contact, while at work, with any one particular skilled tradesman. Finally, it seemed to come to this, so far as Mr. Cox was concerned, that it meant working with, and alongside, skilled men capable of imparting the necessary knowledge for the period of five years. It was not, however, I am satisfied from all the evidence that I heard, an invariable rule of the Branch to enforce this condition. Mr. Cox himself, for example, never completed his five years and Mr. O’Flaherty, another member, it was admitted, never served an apprenticeship. I am satisfied, however, that the service of some sort of apprenticeship of a formal or informal variety of the kind I have indicated, is one of the things taken into consideration by the Branch in deciding whether a man is qualified or not. While service as an apprentice is not specifically required by the rules as a qualification it does not follow that it may not be a very desirable qualification. The fact that the question of apprenticeship was taken into consideration in the plaintiff’s case does not, to my mind, indicate any breach of the rules or any unfair approach to the consideration of his application. Apart from this matter of apprenticeship I am unable to say from the evidence adduced before me that the Branch ever laid down any particular standard of qualification, nor would I deduce that they had as a matter of practice accepted any particular standards in the past. They looked for apprenticeship, as a rule, but it was not a sine qua non.They had regard to whether an applicant had worked steadily as a skilled man or as a labourer; but, again, working for a period as a labourer would not necessarily be fatal.
I could detect no settled line of conduct. The view is open, then, that having regard to his experience and probable degree of skill the decision to reject such a man was unfair and unjust, but even if I were to come to that conclusion that would not entitle the plaintiff to succeed on this issue. It is not my view that counts; it is that of the members of the Branch, and, however much I might sympathise with the plaintiff or deplore their decision, I could only intervene if I were satisfied either that the rules were departed from or that they did not act bona fide and honestly. If the members thought that the grounds of rejection were good and the grounds were not such that it would be impossible for a reasonable person to form the view that they were good and if the members came to that view honestly that is all that is required. In this connection certain relevant factors must be remembered as legitimately affecting the viewpoint of the members. The plaintiff did not see fit to produce very much evidence to them with regard to his status, standing or experience as a carpenter. He had admittedly worked as a labourer for lengthy periods. Further, it was quite open to them to regard such apprenticeship as he had served as not being satisfactory when considered along with other matters. While it is true that a period of service of an apprenticeship is not a sine qua non, I do not think the fact that some people were admitted without it is sufficient to show that reliance on the lack of it in the plaintiff’s case was necessarily wholly unreasonable, having regard to all the circumstances of the case and his history. There may have been other compelling factors also in favour of other successful applicants who had not an apprenticeship qualification. The members were also entitled to use their own knowledge of the plaintiff and, as most of them live in the same neighbourhood, I would assume they must know something of him. I would not therefore be prepared to say that there were not proper grounds on which the Branch could as reasonable men have come to the conclusion that the plaintiff was not a qualified workman. The form of the resolution I have already dealt with in connection with the alleged breach of the rules in the manner of dealing with the candidature. It is also suggested that its wording of itself indicated an unfair approach to the consideration of the candidature. I think that the explanation given is reasonable. It was proposed after the discussion, when it was, I think, fairly obvious that the meeting was against the plaintiff, and that he would not obtain a proposer or seconder. That is sufficient to explain its negative form. As regards the super-added reasons for rejection, if a resolution in these terms was proposed at the beginning of the meeting, it would, to my mind, be most objectionable and give strong grounds for suspicions of improper motives. But if, after a discussion, the meeting arrived at a conclusion on the lines indicated by the reasons given I would not be prepared to say that similar considerations would apply. The terms of the resolution and some of the evidence given certainly made me somewhat suspicious. I have, indeed, a feeling that this man has been most unfortunate and I would venture to express the hope that it may be found possible to consider his candidature again some time in the future. However, having considered all the facts and evidence to the best of my ability, I am not prepared to say that the plaintiff has satisfied me that the determination to reject him was reached either dishonestly or mala fides or in breach of the rules or that natural justice has been denied to him. Mr. Conolly, indeed, said at one stage of the proceedings that he would not be prepared to charge the members of the Branch with actual mala fides. I am therefore against the plaintiff on all the three main grounds of defence to this action and I must refuse the plaintiff the relief claimed and dismiss the proceedings.
There is one other matter to which I should refer, because it was so strenuously pressed upon me during the hearing. Mr. Conolly suggested that it was a most unsatisfactory state of affairs that persons with qualifications equivalent to those possessed by the plaintiff cannot as of right gain entry to a union on compliance with its rules, especially where union members will not work with non-union members and, therefore frequently debar them from work. He stressed the social importance of the issues involved. There seemed to be some underlying suggestion that I should approach the consideration of the matters at issue on the basis that I should endeavour to remedy what Mr. Conolly urged was a social evil, but I desire to say that in these proceedings I am solely concerned with the legal right of a particular individual and all that I am entitled to do is to enquire whether or not he has established a right in law to the relief claimed. If it is desirable in the interests of social justice to change the terms and conditions of entry into trade unions or to give certain persons, who are not members of trade unions, but who possess certain qualifications, the right to enter them, that is not a matter for me but for the Legislature, and I express no views on the matter.
MAGUIRE C.J. :
31. July
The plaintiff in this action describes himself as a carpenter by training and occupation. The first-named defendant is a trade union registered in England but lawfully functioning in this country where it holds a registration licence. The Union has a branch in Galway. The other defendants are members of this Branch.
The plaintiff, claiming that he is qualified for membership of the society, sought admission to the Galway Branch.
The machinery by which new members are admitted to the society is provided in rule 6 of the society’s rules. The first requisite is that a candidate for membership must be proposed and seconded at a regular meeting nightrule 6, sub-rule 13. The plaintiff first sought admission at a regular meeting held on the 27th February, 1947. He was proposed by a Mr. O’Connell. As however no member seconded him his candidature failed. Again seeking admission he attended a meeting on the 18th February, 1949, when he gave oral and documentary evidence of his qualification for membership. He was then asked to withdraw. No proposer put his name forward. A resolution was however proposed that he be refused admission “since it is a well known fact that he is not a genuine carpenter and cannot therefore present any period of apprenticeship.” This resolution was passed. He complains in his pleadings of irregularities at the first meeting at which he hoped to gain admission. He had however accepted his failure then to secure admission. His failure was no bar to a fresh application and as stated he renewed his effort to gain admission in 1949. With relation to the proceedings at the meeting of the 18th February, 1949, he complains that he was not put up for election as required by the rules of the society. He seeks 1, a declaration that he is a qualified workman within rule 6 and that he is eligible for membership; 2, a declaration that the resolution quoted above is invalid and not binding upon him; 3, an order directing the defendants to accept his application for membership and to take all necessary steps for holding an election; 4, damages.
Mr. Justice Budd in the High Court having dismissed his action he now appeals to this Court.
The first ground of appeal is that s. 13 of the Trade Union Act, 1941, makes it obligatory upon a trade union to admit to membership all candidates who are qualified to be members. The relevant provision of the section is sub-s. 1 (a) which provides as follows:
“(a) such trade union shall include in its rules or constitution provisions specifying the conditions of entry into and cesser of membership of such trade union by persons resident within the State.”
I am quite unable to follow the reasoning of Mr. Conolly whereby he submits that this provision makes it mandatory upon the Union to accept the plaintiff as a member provided he is qualified. The provision merely requires that a trade union, such as the defendant society, shall in its rules specify the conditions of entry into and cesser of membership. This the society has done. The very fact that the Act leaves to a trade union the making of rules in regard to membership shows that it was not the intention to compel a trade union to admit as members candidates whom it did not consider eligible according to its rules or even if eligible because the members did not consider them suitable. Mr. Justice Budd in considering this contention of the plaintiff examined the provisions of the Constitution on which reliance was placed. He also considered the case of Norey v. Keep (1). I agree with the views he expressed that no support for the plaintiff’s claim can be got from the Constitution. As he points out, the case of Norey v. Keep (1) was concerned with the contractual rights of members of a trade union inter se. Here the plaintiff has no contractual relationship with the society or its members. I am of opinion that the contention that the Legislature intended by s. 13, sub-s. 1 (a), to compel trade unions to admit to membership persons who could show that they were eligible is unsustainable. The trade unions in my opinion are the judges of eligibility. Furthermore, it is quite open to them even if a candidate is eligible according to the rules to refuse him admission to membership.
As regards the claim for a declaration that he is a qualified workman within rule 6 and that he is eligible for membership, the Court cannot help. Qualification as a workman and eligibility are matters left entirely to the judgment of the members. Furthermore, a declaration of eligibility would be of no use to him unless the Court can take the further step which he asks, viz., to compel the Branch to accept his application and take the necessary steps for his election. The rules require that he be proposed and seconded. The Court cannot procure a proposer for him and even if this were possible he would have to secure a majority of the members in order to secure admission. The members at the meeting of the 18th February, 1949, expressed clearly the view that he was not eligible and this in my opinion was an end of the matter.
I do not understand in what legal sense it is said that the resolution of the 18th February, 1949, is invalid or not binding on the plaintiff. The resolution in so far as it expressed the feeling of the meeting was perfectly valid and was not binding upon the plaintiff. It affected him of course indirectly inasmuch as it gave a warning to a possible proposer of his name that the plaintiff was not considered eligible and would not be acceptable to the members. As under the rules the members are the final judges as to whether a member is or is not to be admitted, I can see no ground for pronouncing the resolution invalid. True it was
the voice of that meeting and of that meeting alone. It does not prevent any member who takes the view that the plaintiff is qualified and should be admitted from again putting forward his name in accordance with the rules. If it is thought that the recording of the offending resolution prevents any member from doing so the obvious course is to move that it be rescinded. Failure to carry such a resolution would not in theory prevent a member from proposing the plaintiff for membership but the fate of such a proposal would seem hardly in doubt if the resolution of 1949 is again affirmed. The case of Foss v. Harbottle (1)was much canvassed in the course of the argument. It has been held in the English case of Cotter v. The National Union of Seamen (2) that it applies to a trade union. It is difficult to understand the contention that it is of help in this case. If the plaintiff were a member of the defendant society the principle of Foss v. Harbottle (1) would prevent him from obtaining any relief against irregularities which could be righted by the Branch as a matter of internal management. Of course the precise problem here could not arise if he were a member. It seems to me however that if anything it isa fortiori that the Court will not entertain proceedings by a stranger who is not a member of the body to right something which at best was an irregularity. It seems plain that where a person has no rights arising from statute or contract to control the actions of a body such as the defendant society the Court will not entertain proceedings to compel the doing of something which is within the jurisdiction of the body.
LAVERY J. :
I agree.
KINGSMILL MOORE J. :
I agree.
O’DALY J. :
I agree.
MAGUIRE J. :
I agree.