Collective Agreements
Cases
Kenny v. An Post
[1988] I.R. 285
O’Hanlon J.
“It appears to be common case that the adoption of the fifteen minute break with full pay which was implemented from 1969/70 onwards was never made the subject of any formal, written agreement or – so far as the evidence goes – of any exchange of letters or other written communication between the employers and the employees or their representatives. Nor does it appear that the matter went higher than Mr. Kelly and Mr. Gray, who were superintendents on the floor at the sorting office, to receive formal sanction by the Department of Posts and Telegraphs. However, it is argued that the decision was implemented and continued over many years and must by implication be regarded as having become one of the terms of employment for the postal sorters in that particular office.
Chitty on Contracts, 24th ed. (1977), refers as follows at paras. 3524 and 3534 to the common practice in the modern industrial and commercial situation of having collective agreements rather than separate contracts with individual workers:
“Although [the general principles of the law of contract] are relevant, there is often no genuine bargaining between the parties to the individual contract of employment, since the terms are frequently settled by collective agreements or statutory regulation . . . It is nowadays often impossible to regard the employment of each individual worker as the result of a separate bargain struck between master and servant.
The only major decision on the legal status of a collective agreement ( Ford Motor Co. Ltd. v. A.U.E.F.W. [1969] 2 Q.B. 303) confirmed the majority opinion of those concerned with such agreements that they are not normally intended to create legal relations. This means that they are binding in honour only, and that their enforcement must depend on industrial and political pressure. . . The process by which collective agreements are made is known as”collective bargaining” rather than “contract” and the application to them of the ordinary rules of the law of contract could lead to great difficulties.”
I am of opinion that what took place in the present case is akin to the process of collective bargaining referred to by the authors of the work in question. Alteration of, and adjustment to, work practices may have to take place constantly in the sphere of employment where large numbers of people are working on the same premises and it seems to me that where a particular change in the terms of employment is intended to be regarded as binding contractually the parties should take some positive steps to achieve this object. The evidence has failed to satisfy me that Messrs. Gray and Kelly, the superintendents at the time, had authority from the Department of Posts and Telegraphs to change the contractual situation between the Department and the postal sorters, while I fully accept that they must be regarded as having authority to adapt the work practices in the sorting office to the particular needs of the work situation. In particular I would not be prepared to hold that they had authority to bring about change in the entitlement to remuneration for overtime on a contractual basis so that the employer was to be thenceforth bound to pay for time not worked by the employee.
It has been held that a promise to pay extra remuneration for services which are within the scope of the servant’s duty as defined by his subsisting contract of service is void for want of consideration and that it makes no difference that such extra remuneration is claimed under a usage. It is enforceable when the nature of the service has been changed entirely, or in a case where the servant undertakes increased responsibility or more work. Accordingly, even were I to hold that the parties embarked on a process designed to alter the contract of service in the 1969/70 period, I would tend to the view that there was no consideration for the additional benefit offered to the employees, as they were making no promise in return. If this is the correct view, then the alleged agreement would, on this ground also, be unenforceable at the instigation of the employee.”
Ardmore Studios (Ir.) Ltd. v. Lynch and Others.
[1965] I.R. 1
McLoughlin J.
“ Mr. Lynch said that there was an arrangement, mutually agreed between the Union and the Company, that the Company would employ members of his Union in accordance with the seniority list. The formation of this list had been discussed before the first agreement and workmen were kept available. The list had been compiled by the Company and the Union and the men were under an obligation to keep themselves free to be available if called upon by the Company. Mr. Lynch also stated that the same practice was adopted after the termination of the agreement of the 1st January, 1959. He stated that the last seniority list was settled in December, 1961, and he produced a photo-stat copy of that list. He always believed that there was a binding agreement that men would be supplied in accordance with that list. He said that if the agreement had been adhered to, the defendants Kelly, Hill, Doyle, Murphy, and Moloney, all of whom were on the seniority list, would have been employed on the production of the film, ‘Of Human Bondage,’ as electricians. He said that the list was checked on occasions and he said that the idea of having such a list was to compensate persons, who were willing to make themselves available for picture work at the studios, for loss which they might incur by reason of their agreement to make themselves available if and when called upon. He also said that up to February, 1963, electricians were always selected from the list. He also said that the existence of the list would not keep out English electricians provided they joined the Irish Union and that members of the Electrical Engineering Union could get on to the list.
On cross-examination Mr. Lynch agreed that the dispute was concerned with English workmen coming to Ardmore, but he added that the dispute was put on the basis that this was a breach of agreement because it ignored the existence of the seniority list.
…..
Taking all these facts into account, and bearing in mind the contents of the documents to which I have referred, I have no doubt that a seniority list was in existence. It is probable that it operated in some form from the year 1958 and crystallised about December, 1961, when it contained the names of twenty men, all of whom were members of the Electrical Trades Union (Ireland), though members of the Irish Engineering, Industrial, and Electrical Trades Union could also be on it. I have no doubt but that men of the Electrical Trades Union (Ireland) were drawn from that list from the time of the termination of the agreement to the time when the dispute took place.
There is a considerable volume of evidence which might very possibly enable a Court to conclude that there was an agreement between the Union and the Company that electricians were to be provided by the Union from the seniority list as required, and that men from that list would be available when required, and that the Company would not look elsewhere for men while there were a sufficient number of men available from that list.
Having regard to my decision on the legal aspect of this case, it is unnecessary for me to decide as a fact that a valid binding contract existed between the Union and the Company.
What I have to decide is: Was there a genuine belief on the part of the Union that such an agreement existed and were there reasonable grounds for that belief? Put in another way: Was the Union acting bona fide? Did the Union bona fide believe in the existence of an agreement that the men could be drawn from the list, whether right or wrong? Having regard to all the evidence I have formed the view that the Union did genuinely believe it had a binding agreement with the Company that men would be drawn from the seniority list and acted on that belief. There were men on the list ready to be sent to work. They were ascertainable persons, as the first nine men on the list. I believe that the Union was, at all times, acting on behalf of its members and that there was a dispute as to the non-employment of persons within the meaning of the Act. That being so, there was in my view a genuine trade dispute within the meaning of the Act which justified the Union in taking the action it did of placing a picket on the plaintiffs’ premises and the Union’s action was thus protected by the Trade Disputes Act, 1906.
“I accordingly refuse the declaration and injunction sought.”
Goulding Chemicals Ltd. v. Bolger
[1977] I.R. 211
S.C. O’Higgins C.J.
“The second ground of appeal put forward by the plaintiffs was based on the acceptance by all the unions concerned (including ITGWU of which the defendants are members) of the plaintiffs’ proposals for the closing of their plant. These proposals were designed to ensure that the closing would be accepted by the unions as being in the circumstances unavoidable and that satisfactory monetary compensation would be paid to all employees. It was of course implicit in the proposals and in their acceptance by the unions that there would be no trade dispute and, of course, no picketing. The six-point proposal or statement from the plaintiffs which was accepted by the unions was a business-like document and had all the appearances of being intended to create legal relations between the unions which accepted and the plaintiffs who proposed. I would regard the agreement resulting from the acceptance of these proposals as being similar in effect to that dealt with in Edwards v. Skyways Ltd. 58 and, there being nothing to suggest the contrary, in my view a valid contract was thereby created between these unions and the plaintiffs. However, this is not the point of this ground of appeal.
The plaintiffs’ contention is that this valid enforceable agreement has the effect of binding the defendants who are all members of one of the unions involved. This submission must be considered in the light of the evidence, which was uncontradicted, that the defendants at all times opposed the conclusion of any agreement with regard to the closing of the plant and made it abundantly clear, both inside the union and to the plaintiffs, that they would not accept any agreement to this effect. I find it hard to accept that in such circumstances the defendants can be bound by an agreement which they have expressly repudiated and opposed. It seems to me that to hold them bound would be contrary to all principle. The only basis put forward for suggesting that they should be bound was that they did not resign and continued to be members of their union. The rules of the union were not put in evidence but I would find it very difficult to accept that membership of an association like a union could bind all members individually in respect of union contracts merely because such had been made by the union. I cannot accept for these reasons that this ground of appeal is well founded.
Kenny J.
“The plaintiffs then argued that if the six-point statement and its acceptance by the unions created a contract the defendants, as members of the union, were bound by it because the majority of their co-members had accepted it. No authority to support this argument was cited and the rules of the union, which would show the authority of the majority, were not referred to or proved. I think that the contention is wrong in principle and that all the reported cases on this matter are against it. Membership of a corporate body or of an association does not have the consequence that every agreement made by that corporate body or association binds every member of it. None of the defendants are parties to the agreement and as they consistently opposed it, no question of their being bound by acquiescence can arise. In addition, there is the negative evidence against the contention provided by a section in the Industrial Relations Act, 1946. The two decisions that I have been able to find on this matter are against the plaintiffs’ contention.
In Holland v. London Society of Compositors 70 the plaintiff was a member of a provincial trade union which made an agreement with a London trade union that a member of the former union should, if he came to London, be admitted to membership of the latter union. The plaintiff was offered a position in London but was refused membership of the London union and, therefore, could not accept the position. He brought an action against the
London union for a declaration that he was entitled to membership of it and for an injunction. The court decided that the agreement was made not between the plaintiff and the London union but between the two trade unions only and that, as the plaintiff was neither directly nor indirectly a party to it, the action failed. In Young v. Canadian Northern Railway Co. 71 the defendants had entered into an employment agreement with a trade union and the plaintiff sought to rely on the terms of it when he was dismissed by the defendants. The Privy Council held that, having regard to the terms and nature of the agreement, it did not constitute a contract between any individual employee and his employer. There is in addition the negative argument that the Oireachtas assumed in 1946 that an employment agreement to which a trade union was a party did not bind the individual members of it. Section 30, sub-s. 1, of the Industrial Relations Act, 1946, reads:
“A registered employment agreement shall, so long as it continues to be registered, apply, for the purposes of this section, to every worker of the class, type or group to which it is expressed to apply, and his employer, notwithstanding that such worker or employer is not a party to the agreement or would not, apart from this subsection, be bound thereby.”
Therefore, I reject the plaintiffs’ argument that the defendants are bound by the six-point agreement or that there is any contractual relationship between the plaintiffs and them.”
Edwards v Skyways Ltd
[1964] 1 All ER 494, [1964] 1 WLR 349
Megaw J
In the present case, the subject matter of the agreement is business relations’ not social or domestic matters. There was a meeting of minds – an intention to agree. There was admittedly, consideration for the company’s promise. I accept the proposition of counsel for the plaintiff that in a case of this nature the onus is on the party who asserts that no legal effect was intended, and the onus is a heavy one.’