It is lawful for a person acting on his own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute to attend at or near the approaches of a place where his employer works or carries on business, provided that it is merely for the purpose of obtaining or communicating information or peaceable persuasion of any person to work or to abstain from working.
Picketing is, in theory, designed to communicate the existence of a dispute and to solicit solidarity and support. Peaceful picketing may not be unlawful at common law, even without the statutory immunity. The right of free expression and peaceful assembly are guaranteed in the Constitution and are also protected by the European Convention on Human Rights.
Any element of obstruction or interference with the use or enjoyment of premises or the highway (public road) may amount to a nuisance or so-called trespass to the subsoil, which are torts/ civil wrongs. Trespass to the subsoil arises where the owner’s theoretical ownership of the subsoil on the public road and path adjoining his premises is used other than for normal public use, such as passage. Picketing will usually to be inconsistent with the implied consent to use of the adjoining highway.
There is immunity for peaceful picketing carried out in the context of a trade dispute, subject to conditions. The right to picket applies to persons acting on behalf of the trade union. They must have some connection with the union. They will be generally employees concerned in the dispute.
Trade Union officials may accompany members of the union on the picket line provided that they are representing their members and their sole purpose is peaceful communication of information and persuasion. He must act in furtherance or in pursuance of a dispute on behalf of the trade union or its members.
Place of Picket
The Industrial Relations Act allows attendance at, or where this is not practical, at the approaches to a place where the employer works or carries on business. Anywhere the employer works or carries out the business is covered by the immunity. It is not necessary that the place has a commercial connection with the business concerned.
Picketing need not necessarily be confined to the particular premises where the dispute arose. It is sufficient that this place was the employer’s place or business, when the dispute arose. It does not cease to be the employer’s place of business where the employer has ceased business.
The picketers may not enter the employer’s premises. There is no immunity for trespass. If the picketing blocks access of obstructs the highway, it may lose the immunity. It is not permissible to picket the employer’s dwelling house.
Picketers may be permitted to enter a public area, with implied consent. Picketing immediately outside the premises may enjoy immunity, even though it may constitute trespass to the subsoil at common law and / or constitute a nuisance or interference with the highway. Picketing that obstructs public roads and thoroughfares to traffic is an offence and is not protected by the immunity.
Picketing (including secondary picketing in the limited cases in which it enjoys the immunities) is allowed for the peaceful communication and persuasion only.Picketers must limit themselves to peacefully obtaining or communicating information or peacefully persuading any person to work or to abstain from working.
Picketers may communicate the fact of the dispute with leaflets, placards or verbally. Placards and documentation given on the picket line must be true and accurate. It is for members of the public and other third parties to decide whether or not to deal with the employer.
Persons may not be compelled to hear what picketers have to say. Picketers may persuade employees and commercial counterparties, not to deal with the employer, notwithstanding that this may constitute a breach of contract or an inducement of a breach of contract. The counterparty to the contract with the employer has no immunity for breach of the contract with the employer.
The number of pickets should not be unreasonable, as this may overawe or intimidate. The use of threatening or derogatory language is not protected The injunction may limit the number of picketers, where they are excessive.
The courts may restrain picketers where the number present goes beyond what is reasonably necessary to communicate information, may amount to obstruction used or give cause for apprehension of a breach of the peace.
If a picketer unreasonably interferes with the right of passage, this constitutes a nuisance at common law. The blocking of the highway may be restrained. There may be a trespass to the subsoil of the adjoining owner.
If pickets appear in large numbers and intimidate or put persons in fear, this is likely to go beyond what is permissible. It appears that the constitutional right of assembly is limited to public purposes rather than private purposes, which would be the case in a trade dispute.
The obstruction of deliveries and commercial communications is not permitted. Obstruction to the highway constitutes an offence in common law. Picketing of members of the public or clients of the employer does not usually enjoy the immunity.
Secondary picketing is that which takes place, other than at the premises of the employer who is a party to the dispute. Where the trade union is a member of the Irish Congress of Trade Unions, Congress must sanction secondary picketing.
Most secondary picketing does not enjoy immunity under the Industrial Relations Act. The exception to the absence of immunity for secondary picketing provides for the picketing of an employer who has assisted or is reasonably believed to have assisted the employer party to the dispute, for the purpose of frustrating the strike or industrial action.
Employees may attend at or near another employer’s place of business, only if those who attend reasonably believe at all material times that the third-party employer has directly assisted their employer, who is party to the trade dispute for the purpose of frustrating the strike or industrial action. The may attend only for the purpose of obtaining or communicating information or peaceable persuasion of any person to work or abstain from working
Action taken by the employer in the health services to maintain life-preserving services during a dispute does not comprise assistance.
Secondary picketing, in the limited cases in which it enjoys the immunities) is allowed for the peaceful communication and persuasion only. It must be for the purposes of supporting the trade dispute.
Injunctions may be granted by the civil courts to restrain unlawful industrial action. The general principles applicable to the grant of injunctions applies. The Industrial Relation Act restricts the immunity from restraint by injunctions in certain trade dispute cases.
The courts will not generally order the specific performance of an employment contract. The employer may be entitled to damages where there is a breach in the context of a strike. It appears that under Irish law, that where due notice is given, there would not be a breach of contract.
An injunction may issue temporarily on the basis of a unilateral (“ex-parte”) application, in certain circumstances of urgency. It is usually granted for a very short period, pending a bi-lateral interlocutory proceeding. An immediate order must be shown to be necessary, in order to prevent or reduce damage to the applicant’s interests, that cannot be compensated for by damages. There must be a fair question of law in relation to the basis of the complaint.
An interlocutory may follow an order granted on a unilateral application. More commonly, it is applied for directly. It may be granted on an application made on short notice to the parties against whom it is sought. Its purpose is to preserve the status quo pending a full hearing. The criteria are the same as those mentioned above.
In the vast majority of cases in which a labour injunction is granted, a full trial never follows. Even if the action was lawful; it would normally take a number of months or more before there could be a full trial of the matter.
The outcome of the initial injunction application, made on a number of days’ notice or without notice may be determinative of the position. An injunction may issue on the basis that there is a fair question of law, which may in effect determine the effective outcome. However, there is a severe restriction on the grant of labour injunction, in the circumstances mentioned in the next page.
If a fair question has been raised, the court proceeds to consider the balance of convenience. The balance of convenience asks whether irreparable damage may be done that cannot adequately be remedied by an award of damages in the ultimate trial of the matters.
Commonly, the employer is likely to suffer financial loss and may be better able to grant an undertaking to compensate the defendants for their loss if he loses the ultimate action. However, very few cases proceed to full hearing.
Ultimately, the grant of an injunction is a matter for the court’s discretion. The persons sought to be restrained must be named. Where necessary, the order may be made against a group of unnamed persons, typically picketers, who are given notice of the existence of the injunction. It is contempt of Court, to breach the terms of the injunction, subject ultimately to attachment and imprisonment.
Injunction Restricted I
The Industrial Relations Act immunises actions against employees, trade unions (and employers and employer’s association) in respect to civil wrongs committed on their behalf in contemplation or furtherance of the dispute. Provided that the action is done in the reasonable belief that it is in contemplation of furtherance of a dispute the immunity applies.
If it is shown that the industrial action has been approved in a ballot in compliance with the statutorily required rules, an injunction will not be granted or continued, if a fair case is shown that the action is in contemplation or furtherance of a trade dispute. The union must show that there has been a ballot in favour of the action. It must be shown that ballot has been held and complies with the relevant requirements
This does not prejudice the ultimate trial of the action, in which there may or may not be a right to damages, depending on the facts and the availability of the immunities. The restriction does not apply to an injunction to prevent unlawful entry or trespass or unlawful damage to property or proceedings relating to any action liable to cause death or personal injury.
Injunction Restricted II
Where the required notice and ballot has not taken place or where the immunities are not available, the general criteria apply. The plaintiff must show an arguable with a prospect of success at trial. There must be a bona fide and fair question of law raised. The Court does not determine the matter on the merits.
Prior to the amendment of the legislation in 1990, employers frequently obtained interlocutory pre-trial injunctions at short notice where here was a fair question to be answered as to the validity of the action, without recourse to the legal merits of the position. The effect of the above mentioned 1990 provision is that it is very difficult for an employer to obtain an injunction to restrain ordinary industrial action.
References and Sources
Employment Law Meenan 2014 Ch. 8
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.18 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Irish Trade Union Law Kerr & Whyte 1985 Ch.8 & (
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Employment Law Forde & Byrne 2009
Principles of Irish Employment Law Daly & Doherty 2010
Trade Dispute Act 1906
Trade Disputes Act 1982
Industrial Relations Act 1990 (No. 19)
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Employment Law Yearbook (annual) Arthur Cox
Employment Law Reports
Irish Employment Law Journal
Employment Law Review
Dismissal & Redundancy Consolidated Legislation Barrett, G 2007
Irish Employment legislation (Looseleaf) Kerr 1999-
Employment Rights Legislation (IEL offprint) Kerr 2006
Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
Essentials of Irish Labour Law Faulkner 2013
Workplace Relations Commission http://www.lrc.ie/en/
Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
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Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
Selwyn’s law of Employment Emir A 19 Ed. 2016
Employment law : the essentials. Lewis D Sargeant M and Schwab M 11 Ed.2011
Labour Law Collins H, Ewing K D and McColgan 2012
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Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
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The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016