Labour Injunctions
Cases
British Airways Plc v Unite the Union
[2010] EWCA Civ 669
LADY JUSTICE SMITH: I gratefully adopt the Lord Chief Justice’s exposition of the facts and the statutory framework.
BA claims damages and an injunction against the Union alleging that the Union has wrongly induced its members to break their contracts of employment with BA by calling its cabin crew members to take part in a series of strikes, which, if they take place, will have a seriously disruptive effect on BA’s business and on the convenience of the public. The Union defends the action relying on section 219 of the Trade Union and Labour Relations (Consolidation) Act 1992 (the Act), contending that it has acted in the furtherance of a trade dispute and it has complied with the ballot requirements set out in Part V of the Act.
The question to be decided in this appeal is whether the judge at first instance, Mr Justice McCombe, was right to grant an injunction restraining the Union from calling the strikes. He did so because he considered it unlikely that the Union’s defence would succeed at trial. If he was right about the weakness of the Union’s defence, he was plainly right to grant the injunction. The balance of convenience arising from other factors unarguably weighed in favour of preventing the strikes from taking place.
However, if the Union’s defence is likely to succeed at trial, the strikes must be allowed to go ahead. To decide otherwise would be deprive the Union’s members of any effective right to withhold their labour.
Ever since 1906 trade unions have been entitled, with impunity, to organise strikes related to trade disputes. In 1982 Parliament introduced measures designed to curb what was seen as irresponsible and undemocratic behaviour by some trade unions. Those provisions, as slightly amended, are found in Part V of the 1992 Act.
In particular the provisions were designed to prevent wildcat strikes. That is strikes called at such short notice that employers had no warning of what was coming, had no chance to try to persuade their employees not to take part, and no chance to make contingency plans to protect their businesses during the strikes. To that end Part V contains requirements that the Union provides advance information to the employer as to its intention to hold a ballot and identifying the groups of workers who will be involved.
Another major concern at the time of the legislation was that strike ballots often took place in a very informal way, typically in the work’s carpark where everyone could see who was voting for and against the strike. There was concern that some workers were not able to take part. Others who could take part were put under pressure, at times even bullied into supporting the strike. The new provisions now found at sections 226 to 232 of the Act were designed to ensure that ballots for industrial action were secret, free and fair. In short they were designed to ensure that a ballot had democratic legitimacy.
These provisions are quite detailed and impose considerable demands on the Union. But it seems to me important to recognise that they are not designed to prevent unions from organising strikes, or even to make it so difficult that it will be impracticable for them to do so. As Lord Justice Millett said in London Underground Limited v National Union of Railwaymen, Maritime and Transport Staff [1996] ICR 170, at page 180:
“Parliament’s object in introducing the democratic requirement of a secret ballot is not to make life more difficult for trade unions by putting further obstacles in their way before they can call for industrial action with impunity but to ensure that such action should have the genuine support of the members who are called upon to take part. The requirement has not been imposed for the protection of the employer or the public but for the protection of the Union’s own members. It would be astonishing if a right that was first conferred by Parliament in 1906, which has been enjoyed by trade unions ever since and which is today recognised as encompassing a fundamental human right, should have been removed by Parliament by enacting a series of provisions intended to strengthen industrial democracy and governing the relations between a union and its own members.”
In the present case it is not disputed that most of the requirements of Part V relating to the conduct of the ballot have been complied with. In January 2010 the Union gave notice to BA of its intention to conduct a ballot and the number and types of worker concerned were identified as required by section 226A.
No criticism can be made either of the way in which the ballot was conducted. The members entitled to vote received ballot papers, by post, as required. The ballot period covered four weeks so as to give the members a full opportunity to vote. This was thought necessary as cabin crews are often abroad. Electoral Reform Services was appointed as independent scrutineer. The ballot closed on 22 February and the result was declared by the scrutineer later that day. There was a large majority in favour of strike action, 7,482 “yes” votes to 1,789 “no” votes. The scrutineer provided a certificate saying that it was satisfied with the conduct of the ballot. BA was immediately informed of the results. BA has no cause to complain of the conduct of the ballot so far as its own rights and interests are concerned.
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Evidence was put in first by the Union explaining what steps it had taken to comply with section 231. Mr Stephen John Turner, the National Secretary (Civil Air Transport) of the Union, said that had it put all the required information on its websites and had distributed hard copy leaflets to members in crew rooms at Heathrow and Gatwick airports. Leaflets were also left in news stands and the full results were posted on notice boards at both airports. That, the Union contended, was sufficient for compliance with section 231.
The Union also took other steps to disseminate the result of the ballot more widely; for example, by making an announcement at a press conference, issuing a press release and by sending e-mails and text messages to those of its members who had provided the necessary addresses or telephone numbers.
The information in those communications was not in the statutory form. Indeed, in some of the e-mails results were given only in the form of percentages. I agree with my Lord the Master of the Rolls that it would have been quite possible for those texts and e-mails to have included all four items of information.
In the press release, which was also e-mailed to some members, the “yes” and “no” votes were recorded but the number of spoiled ballot papers was not given. The number of votes cast was not expressly stated either, but could be calculated by the addition of the “yes” and “no” votes. Plainly it would have been possible for those communications to have included all four items of information.
BA contended that the steps taken were not adequate to comply with section 231 and that as a result the whole balloting process was rendered inadequate and unlawful so that the Union could not rely on its statutory immunity from suit under section 219.
The thrust of BA’s criticism was that putting the information on the Union website and in the crew rooms was insufficient for at least two reasons. First it was not an active communication to members. It was passive and required the member to make the effort to go on-line to look for the information. Second, that method, even when combined with leaving leaflets in the news stands and crew rooms, would not ensure that the information came to the attention of all the relevant members. That was because many of them would be abroad in different parts of the world, many of them were not on duty that week, many would not go through the crew rooms. The members would not know that they were supposed to go on-line to find the results on the websites.
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In considering whether the steps taken by the Union were sufficient to comply with section 231, it is necessary first to consider what as a matter of law the section means and what duty of communication it imposes on the Union. The section is not well drafted in my view. It requires the Union to take such steps as are reasonably necessary to ensure that all persons entitled to vote are informed of the full figures. The first problem is that the expression “reasonably necessary” is not clear in its meaning. In Re Naylor Benzon Mining Company Limited [1950] 1 Chancery 567 at 575, Mr Justice Wynn-Parry said this:
“The words ‘reasonably necessary’ used as a phrase in which the adverb is designed to qualify the adjective are meaningless. A thing is necessary or it is not necessary. It may be regarded as necessary in one context and not in another, but the context cannot be provided by merely preceding the word ‘necessary’ with an adverb such as ‘reasonably’.”
I would be inclined to agree with that. If it were not for other authority I would have observed that Parliament had held back from requiring the Union to do everything necessary to ensure that all persons entitled to vote were informed. In so holding back it had plainly intended to impose a lesser burden on the Union than that strict requirement, but that it was not clear how much lighter a burden it had intended to impose.
However, the matter is not free from authority as my Lord the Master of the Rolls discovered last night when burning the midnight oil. He has referred the court to the cases of Stanford v Roberts and the Chemists’ Federation case, where the courts have construed the requirement to do what is reasonably necessary as a requirement to do what a reasonable and prudent person would think necessary in the circumstances. I will adopt that approach.
The second problem of construction is to decide what Parliament intended by the word “informed”. Did Parliament intend, as Mr Reade asserted, that the Union had to send a personal communication to each entitled member, or is it sufficient if the Union makes the information available by such means as enable every member to access it if he or she wishes to do so?
I am inclined to think that Parliament did not intend that there must be a personal communication. If it had, one might have expected a specific requirement to send the information by post, which was, of course, the only common mode of written communication at the time that these provisions came into force. A communication by post is required for the distribution of the ballot papers.
The language of the two subsections imposing those two different requirements is quite different. Section 230(2)(a) requires that so far as is reasonably practicable every person entitled to vote must have a voting paper sent to him at his home address or at such other address which he has requested the Union, in writing, to treat as his postal address. That provision is at the heart of the balloting requirements and is obviously very important. The detailed requirement of communication reflects that centrality. In contrast, the wording of section 231 is much less specific. Members are not referred to individually but collectively.
I can see good reason why Union members must readily be able to find out the result of the ballot but I cannot see any policy reason why a personal communication should be thought necessary, provided that the information is readily accessible.
It seems to me, looking at the section in the context of the ballot provisions as a whole, that Parliament intended to require the Union to disseminate the statutory information in such a way as would enable every entitled member to access it easily if he or she wished to do so.
I am fortified in my view of the true construction of the section by the provisions of section 232B. This is headed “Small accidental failures to be disregarded”. It provides that if in relation to a ballot there are failures to comply with one or more of certain of the ballot provisions, those failures are to be disregarded so long as they are accidental and, taken together, are on a scale which is unlikely to affect the result of the ballot.
The requirements covered by this provision all relate to the conduct of the ballot itself. They include a member’s entitlement to take part in the ballot, the right to receive a ballot paper by post and to have a convenient opportunity to vote by post. Section 231 is not included. Mr Reade submitted that that meant that the requirements of the section, 231, were strict; infringements could not be overlooked or disregarded. I do not agree. The policy of this part of the Act is that the ballot should be properly conducted, but that if inconsequential mistakes are made, they can be disregarded. If mistakes relating to the ballot itself, the central aspect of the process, can be disregarded, it cannot be intended that the provision of information about the result, which on any view is a less important part of the process, should be regarded as imposing a strict requirement.
I am also of the view that in this day and age it is reasonable for a union to use electronic means of communication rather than the post. I think it is sufficient for a union to disseminate information by its website if it knows that it is dealing with members who are computer literate and have access to the computer and to the internet. As explained by Mr Turner, this Union knew that its cabin crew members were required to use computers in their employment and had access to the internet when out of the country. In 2010 it seems to me not unreasonable to assume that they will also have access at home.
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I therefore take a different view from that of Mr Justice McCombe. I accept that it would have been possible for the Union to have done more, but I do not think that the law required more of it.
In case I am wrong about that I will deal, briefly, with the other argument advanced by Mr John Hendy QC for the Union. That was that, even if there was not proper compliance with the section, there had been substantial compliance. The failures were de minimis, or unimportant. If there were shortcomings, they amounted to a failure to include the complete information in the press release, in effect omitting the number of spoiled ballot papers, and a failure to include the statutory information in the e-mails and text messages. But, he submitted, those failures should not result in the thwarting of the democratically expressed wish of the Union members.
He pointed out that the February 2010 ballot was the second occasion within the present trade dispute on which the cabin crew members had voted in favour of strike action by a large margin. The first occasion had been in December 2009. He reiterated the point that the provision was intended to protect the members, not the employer. No member had said that he or she had not received the information. The employer had received all the information it was entitled to. It would be a travesty of the democratic process and would seriously undermine the members’ right to strike if the employer could obtain an injunction for a minor infringement of the duty to communicate the results.
Mr Reade submitted that the failures were not minor. However, I have already rejected his submission that the section requires a personal direct communication to every member.
I would accept Mr Hendy’s submission that, if there were failures, they were not of a serious nature. If the Union did not comply completely with section 231 it appears to me verylikely that the judge at trial would hold that there had been substantial compliance.
Is “substantial compliance” sufficient? Section 226(2)(a)(ii) provides that industrial action shall be regarded as having the support of a ballot if the various conditions are satisfied. One of the conditions is that the requirements of section 231 are satisfied. So, section 231 is a condition precedent to the validity of the balloting process.
However, I have already said that the section requires the Union only to take such steps as a reasonable and prudent person would consider necessary to ensure that the information reached those entitled. I have already noted that minor and inconsequential infringements of the balloting requirements can be disregarded. I cannot believe that Parliament was content to disregard minor accidental infringements of the balloting provisions and yet intend that minor and inconsequential infringements of section 231 should have the effect of invalidating the ballot.
I consider that the policy of this part of the Act is not to create a series of traps or hurdles for the Union to negotiate. It is to ensure fair dealing between employer and Union and to ensure a fair, open and democratic ballot.
I can see that if there is an infringement which affects some aspect of those important policy requirements, the ballot must be held invalid. But in my view it cannot have been Parliament’s intention to allow a minor infringement which has had no adverse effect on anyone’s rights or interests to invalidate the ballot. In my view substantial compliance with section 231 will satisfy section 226(a)(ii). If it were not so, the rights of workers to withhold their labour would be seriously undermined.
In my view the cabin crew members of Unite have expressed a clear view in a fair and open ballot conducted in February 2010. I consider that it is likely that a judge at trial would hold that the Union had complied with section 231; alternatively, I consider it highly likely that he would hold that the Union had at least substantially complied with that section.
Accordingly, I would allow the appeal and discharge the injunction.”
Dublin City Council v. Technical Engineering & Electrical Union
[2010] 4 I.R. 667
Laffoy J. H.C.
“[6] The core of the plaintiff’s case, as pleaded, is that the industrial action by the defendants, that is to say, picketing at the Ballymun premises, is unlawful and in breach of the provisions of the Industrial Relations Act 1990, so as to deprive the defendants, and, in particular, the Union, of the immunities conferred by that Act. That plea, as particularised, and the defendants’ response to it, may be summarised as follows:-
(i) the plaintiff asserts, and the defendants admit, that there is no dispute or trade dispute between the plaintiff and the defendants and that there is no nexus, contractual or otherwise, between the plaintiff and the defendants;
(ii) the plaintiff asserts that any alleged trade dispute is between Pickerings and the Union and that any picketing by the defendants at the Ballymun premises is not, and cannot be, in furtherance of a trade dispute in the absence of any actionable controversy between the plaintiff and the defendants. In answer to those pleas, the defendants reiterate that there is a trade dispute with Pickerings and that the attendance of the Union’s members at the Ballymun premises is, and was, in contemplation and/or furtherance of such dispute, notwithstanding the absence of any actionable controversy, other than these proceedings, between the plaintiff and the defendants. In particular, the defendants assert that the attendance of Union members employed by Pickerings at the Ballymun premises is not unlawful and they contend that the attendance of the second and third defendants and other members of the Union employed by Pickerings is lawful both under s. 11(1) of the Act of 1990 and at common law;
(iii) as regards the application of s. 11(1) of the Act of 1990, the plaintiff pleads that it confines lawful picketing to the place where the picketers’ employer works or carries on business and makes a number of assertions arising from that limitation. Firstly, it is asserted that, since the plaintiff is not, and never was, the employer of the second defendant or third defendant, any picketing of the Ballymun premises by those individuals is unlawful. Secondly, it is asserted that, since Pickerings “are not working” at the Ballymun premises, the defendants are precluded from picketing there. Thirdly, it is asserted that Pickerings never worked or carried on business at the Ballymun premises within the true meaning of the expression. In response, the defendants deny that the attendance of the Union members employed by Pickerings at the Ballymun premises is unlawful because the plaintiff is not, and never was, the employer of the second defendant or the third defendant. The defendants assert that, at the commencement of the Union’s attendance at the Ballymun premises, that is to say, on the 4th February, 2010, their employer, namely, Pickerings, worked and/or carried on business at those premises and that those premises have not ceased to be a place where Pickerings works or carries on business within the meaning of the Act of 1990, to which the plaintiff’s reply is that the plaintiff’s contract with Pickerings was lawfully terminated with effect from the 19th February, 2010. It is further asserted by the defendants that, even if Pickerings had ceased to work or carry on business at the Ballymun premises as of the date of the initiation of these proceedings, that is to say, the 19th April, 2010, the continued attendance of the Union members at the Ballymun premises remains lawful both at common law and under s. 11(1) of the Act of 1990. While I will deal with the issues of fact arising out of those pleas in greater detail later, I am satisfied that the Ballymun premises was a place where Pickerings worked and carried on business when the picketing commenced on the 4th February, 2010, and that the contract between Pickerings and the plaintiff was not terminated on the 19th February, 2010, although it was definitely terminated with effect from the 25th March, 2010;
(iv) as regards the defendants’ reliance on the common law, the plaintiff in its reply specifically asserts that there is no right at common law to engage in industrial action in the circumstances which prevail here;
(v) the plaintiff pleads that the only basis on which the defendants could legitimately picket the Ballymun premises in the circumstances which prevail here is pursuant to s. 11(2) of the Act of 1990, which, it is asserted, does not arise. While the defendants deny that proposition, they reiterate that they are basing their entitlement to picket on common law or, alternatively, on s. 11(1) of the Act of 1990. In the interests of clarity, it is worth recording that the defendants have never relied on the entitlement to maintain a secondary picket under s. 11(2) of the Act of 1990. Accordingly, in my view, s. 11(2) is something of a “red herring”, save to the extent that it may throw light on the proper interpretation of s. 11(1);
(vi) the plaintiff makes a broad plea that any picketing by the defendants at the Ballymun premises is an infringement of the plaintiff’s rights and does not attract the immunities conferred by the Act of 1990 where the picketing engaged in is alleged to have the characteristics outlined, the following being the characteristics which the plaintiff stood over at the hearing:-
(a) that it is directed at a party who is not in dispute with the Union and was not the “employer concerned” for the purposes of s. 19(2) of the Act of 1990, meaning the employer on whom strike notice was served;
(b) that it involves unlawful entry on the plaintiff’s property such as to constitute a trespass;
(c) that it is an unlawful interference with the plaintiff’s statutory obligations to its tenants and its business and commercial relations with contractors;
(d) that it is calculated to intimidate any contractors engaged by the plaintiff for the purpose of repairing and maintaining the lifts in the Ballymun premises;
(e) that it has as its sole or primary objective the inducing of breaches of the plaintiff’s contracts of tenancy;
(f) that it constitutes an actionable conspiracy to injure the plaintiff and its tenants; and
(g) that the actions of the defendants have been embarked on and maintained for the purpose of interfering with the plaintiff’s undertaking and interfering with the peaceful enjoyment of the plaintiff’s tenants and of causing them hardship, inconvenience and distress.
The defendants have traversed all of those allegations and they deny that picketing by Union members employed by Pickerings at the Ballymun premises is an infringement of any of the plaintiff’s rights. Specifically they deny that the picketing is directed at the plaintiff.
[7] In relation to the allegation of trespass, that the defendants have during picketing unlawfully entered on the property of the plaintiff, this was not an issue at the hearing of the interlocutory injunction and s. 19(4), which disapplies s. 19(2) “in respect of proceedings arising out of or relating to unlawfully entering upon any property belonging to another”, was not invoked by the plaintiff. I am satisfied that the evidence adduced at the hearing of the action establishes that the picketing to date has occurred within the boundaries of property of which the plaintiff is the owner in fee simple and has possession. Further, although the property is used, apparently without objection from the plaintiff, by members of the public for car parking purposes when attending the nearby school and other facilities in the neighbourhood, I am satisfied that members of the public are not entitled as of right to use it and it remains the private property of the plaintiff, in the sense that the plaintiff can control access of the public to it. However, the reality of the situation on the ground is that the defendants could easily move the picket to a nearby public pavement, which would mean that the picketers would be attending “at, or ¦, at the approaches to” the Ballymun premises as required by s. 11(1). Therefore, even though the plaintiff has established that the location of the picket prima facie constitutes a trespass on its property, to seek to have these proceedings determined solely on that ground would not provide a solution to the problem which they are intended to resolve. The finding of prima facie trespass, whether or not the defendants have an immunity in respect thereof under s. 13, does not resolve the real issues between the parties. Therefore, I am of the view that the fact that currently the defendants are prima facie trespassing does not obviate further consideration of the other allegations made against the defendants.
[8] The plaintiff asserts that the defendants will continue to cause the plaintiff serious damage and disruption by virtue of their activities. While the defendants deny that they will continue to cause the plaintiff “any actionable damage”, significantly, they admit that the members of the Union will continue to picket in the event that the plaintiff engages new contractors in substitution for Pickerings, but reiterate that such continued attendance is in contemplation and/or furtherance of a trade dispute or, alternatively, in the reasonable belief that it is in contemplation and/or furtherance of such a dispute.
[9] The defendants specifically plead that:-
(a) the Union, as a registered trade union, is entitled to the benefit of the application of s. 13 of the Act of 1990;
(b) it is the reasonable belief of the Union members and officials that the picketing was and remains in contemplation and/or the furtherance of a trade dispute;
(c) the picketing by the Union members at the Ballymun premises was and is peaceful at common law; and
(d) the picketing at the Ballymun premises is lawful under common law and does not constitute a nuisance at common law, so that no injunctive relief can be granted at the suit of the plaintiff.
On the evidence, I accept that the picketing by the members of the Union at the Ballymun premises has been peaceful.
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The issues
[26] While, in the plaintiff’s issue paper and in the defendants’ response to it, the parties outlined a series of issues of fact and law, having already eliminated some of the issues raised, it seems to me that all of the issues raised on the pleadings can be distilled into three broad issues, namely:-
(a) whether the picketing at the Ballymun premises is lawful by virtue of the application of s. 11(1) of the Act of 1990 on which the defendants rely?
(b) if the picketing is not lawful by virtue of s. 11(1), whether it is lawful at common law, as the defendants contend, which, I understand to mean that the attendance by the picketers at the Ballymun premises, having regard to the manner in which they are conducting themselves, does not constitute a nuisance at common law? and
(c) whether, by their conduct, the defendants have committed a tort, aside from the tort of nuisance, whether it be one of the so-called economic torts or a wrongful interference with the obligations of the plaintiff to its tenants and breach of the rights of the tenants at common law, under statute or under the Constitution, which is not immune from suit by virtue of the Act of 1990, or to which the defendants do not have a statutory defence?
[27] The issue at (a) is the primary issue. The ancillary issue at (b) only falls for consideration if the picketing is not lawful under s. 11(1).
[28] Having regard to the position adopted by the plaintiff at the hearing that the relief it seeks is a declaration that the picketing is unlawful, it is difficult to understand the relevance of the ancillary issue at (c), if the picketing is lawful under s. 11(1). However, it is convenient to make some observations in relation to that issue at this juncture, because the statutory protection which the defendants invoke, and which the plaintiff asserts is not applicable in the circumstances which prevail, is to be found alongside s. 11(1) in Part II of the Act of 1990.
[29] The defendants rely on the various statutory immunities conferred on an authorised trade union, which for the time being is the holder of a negotiation licence, which the Union is, and its members and officials (s. 9 of the Act of 1990). In particular, the defendants invoke the protection afforded by s. 13 of the Act of 1990. However, the plaintiff’s position is that such immunities and, in particular, that the protection afforded by s. 12 of the Act of 1990, cannot apply in circumstances where the continued picketing results in the plaintiff being unable to engage a new contractor to service the lifts.
[30] Section 13(1) provides:-
“An action against a trade union, ¦ or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.”
Subsection (2) provides that, in an action against any trade union or person referred to in subsection (1) in respect of any tortious act, it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.
[31] Section 12 provides:-
“An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that –
(a) it induces some other person to break a contract of employment, or
(b) it consists of a threat by a person to induce some other person to break a contract of employment or a threat by a person to break his own contract of employment, or
(c) it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills.”
Application of s. 11 generally
[32] Peaceful picketing, in the context of a trade dispute, was governed by the Act of 1906 for over eight decades. The Act of 1906 was repealed by the Act of 1990. Section 11 of the Act of 1990, which deals with peaceful picketing, replaced s. 2 of the Act of 1906. It fundamentally altered the law on picketing and differentiated between what has come to be known as primary picketing, which is dealt with in subs. (1), and secondary picketing, which is dealt with in subs. (2). Although the defendants’ case that their attendance at the Ballymun premises is lawful is based exclusively on subs. (1), for the purposes of construing subs. (1) it is instructive to consider subs. (2) as well.
[33] Subsection (1) provides:-
“It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.”
[34] On an analysis of subs. (1), the following elements are identifiable as necessary ingredients of a lawful primary picket:-
(a) the persons whose conduct is rendered lawful – one or more persons acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute;
(b) the type of conduct which is rendered lawful – attendance by those persons at, or at the approaches to, a certain place, provided they so attend merely for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working; and
(c) the place in question – where the picketers’ employer works or carries on business.
[35] Sub-section (2) provides:-
“It shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where an employer who is not a party to the trade dispute works or carries on business if, but only if, it is reasonable for those who are so attending to believe at the commencement of their attendance and throughout the continuance of their attendance that that employer has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action, provided that such attendance is merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working” (emphasis added).
As the words to which I have added emphasis in subs. (2) indicate, the distinguishing feature between the two subsections is the place at which the picketing may lawfully take place. In the case of subs. (1) it is at the place where the picketers’ employer “works or carries on business”, whereas in the case of subs. (2) it is a place where an employer who is not a party to the trade dispute “works or carries on business”, but in circumstances only where there is continuous reasonable belief on the part of the picketers that the employer in question has directly assisted the picketers’ employer for the purposes of frustrating the industrial action.
[36] Notwithstanding the differences between s. 11(1) and (2), what they have in common is that, to come within the protection afforded by either, the target of the picketing must be an employer and the picketing must be conducted at the place where the employer works or carries on business. That is in contradistinction to s. 2 of the Act of 1906, which rendered lawful picketing “at or near a house where a person resides or works or carries on business or happens to be”. By their reliance on s. 11(1) solely, the defendants must establish that the Ballymun premises is a place where their employer, Pickerings, “works or carries on business” within the meaning of that subsection. In my view, the authorities on the application of s. 2 of the Act of 1906 cited by counsel for the plaintiff – the decisions of the High Court in Ellis v. Wright [1976] I.R. 8 and in Cleary v. Coffey (Unreported, High Court, 30th October, 1979) – are of little or no assistance in determining the proper application of s. 11 in this case. Likewise, for present purposes, little or no assistance is to be derived from the authorities which pre-date the Act of 1990 cited on behalf of the defendants – the decisions of the Supreme Court in Ferguson v. O’Gorman and Others [1937] I.R. 620 and in Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211, referred to earlier.
[37] In enacting s. 11, the Oireachtas obviously deliberately set out to curtail what had been the broad scope of s. 2 of the Act of 1906 as regards the locusof picketing and has limited it to a place where the employer who is the target of the picketing “works or carries on business”. Although twenty years have elapsed since the enactment of the Act of 1990, this is the first occasion on which a court has been faced with determining the true meaning of s. 11, which raises a difficult question of construction, in a substantive action.
[38] As regards the application of s. 11(1) to the facts here, on the case made on behalf of the plaintiff, two sub-issues arise, namely:-
(i) whether the defendants are acting “in contemplation or furtherance of a trade dispute”, which the plaintiff asserts is not the case; and
(ii) whether they are picketing at “a place where their employer works or carries on business”, which the plaintiff also asserts is not the case.
While I propose considering each of the above sub-issues separately, obviously the court, in applying s. 11(1), must do so on the basis of the proper construction of the subsection as a whole in the context of Part II of the Act of 1990.
Defendants’ action “in contemplation or furtherance of a trade dispute”?
[39] In my judgment on the plaintiff’s application for an interlocutory injunction I stated that there was no controversy between the parties at that stage that the Union was acting in contemplation or furtherance of a trade dispute, albeit a trade dispute between the Union and Pickerings. Whether I represented the then position of the plaintiff correctly or not, at the trial of the action its position was that, in picketing at the Ballymun premises, the members of the Union are not acting in contemplation or furtherance of a trade dispute. It was submitted on behalf of the plaintiff that the current situation in which the Union is persisting in the continuation of picketing in the knowledge that it has resulted, and will inevitably continue to result, in the plaintiff being unable to retain a contractor to provide repair and maintenance services for the lifts at the Ballymun premises, is tantamount to an embargo, in circumstances where there is nothing which the plaintiff can do to bring about a resolution of the dispute between the Union and its members and Pickerings.
[40] That, as it contends is the case, the plaintiff does not have any clout as against Pickerings in relation to the settlement of the dispute with the defendants, is consistent with the evidence. However, in my view, the plaintiff’s further proposition that the defendants’ reason for picketing the Ballymun premises is clouded in obscurity is not consistent with the evidence. It is perfectly clear why the defendants initiated the picketing at the Ballymun premises. Six members of the Union involved in the industrial action against Pickerings were employed exclusively at the Ballymun premises and some of them, like Mr. Roche and the second and third defendants, have been continuously and exclusively employed there and it has been their sole place of work for a long number of years. Moreover, there is a historical precedent for the Union picketing at the Ballymun premises: picketing occurred there in 1998 and in 2002 during trade disputes between Pickerings and its employees. In my view, there can be no doubt that when the picketing commenced on the 4th February, 2010 it was the case that the defendants were acting in furtherance of a trade dispute. Therefore, it seems to me that the fundamental question which arises in applying the element of s. 11(1) which renders lawful conduct in contemplation or furtherance of a trade dispute is whether the changed circumstances arising from the termination of Pickerings’ contract by the plaintiff, and the acceptance of such termination by Pickerings, mean that the defendants cannot be found to be acting in contemplation or furtherance of a trade dispute since the 25th March, 2010.
[41] Although I consider that the approach which the court should adopt in determining whether the current actions of the defendants are in “furtherance of a trade dispute” is to be gleaned from Part II of the Act of 1990, and that the authorities to which the court was referred to by the parties, which were decided in this jurisdiction by reference to the Act of 1906 and in the United Kingdom by reference to amended legislation introduced in that jurisdiction in 1974, are of little relevance, for completeness I propose to consider those authorities.
[42] The only authority from this jurisdiction which counsel for the plaintiff cited in support of their argument that the defendants are not acting in contemplation or furtherance of a trade dispute was the decision of the Supreme Court in Bayzana Ltd. v. Galligan [1987] I.R. 238. It was submitted that, although that decision arose in the context of an application for an interlocutory injunction, it does assist in comprehending the expression “in contemplation or furtherance of a trade dispute”. Apart from the fact that it was concerned with an interlocutory application, that decision pre-dated the Act of 1990. There, the interlocutory injunction was sought by the plaintiff, which had purchased a meat plant in County Kildare from Irish Meat Producers Limited (I.M.P.). The plaintiff purchased with notice of a dispute between the defendants, who were former employees of I.M.P., and I.M.P., and of picketing at the Kildare premises, as a result of I.M.P. having ceased to trade there and having made its entire workforce there redundant. Matters came to a head when the plaintiff, which was described as the gratuitous bailee of a quantity of frozen meat stored on the premises, which was destined for European Economic Community intervention, could not remove the frozen meat because it could not be certified by officials of the Department of Agriculture, which was a prerequisite to it being taken into intervention, as long as pickets remained at the Kildare premises. The Supreme Court, applying the principles laid down in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88, granted an interlocutory injunction. In the course of his judgment, Finlay C.J., having commented that the defendants had conceded that a fair question existed as to whether their actions “were in bona fide furtherance of a trade dispute” between them and I.M.P., continued at pp. 243 and 244:-
“Even if that concession had not been made, and I think it was proper that it should have been made, I am satisfied on the affidavits, and having considered the evidence, that there is a fair question to be tried on that issue. The plaintiff does not concede any connection between it and I.M.P. and asserts a total incapacity to influence I.M.P. in regard to the trade dispute existing between that company and the defendants. If that evidence were accepted it seems to me that a consequence of it would be, on the full hearing of the action, that a court could properly reach the conclusion that the picketing of these premises was not at present within the ambit of the statutory protection created by the [Act of 1906].”
However, the foregoing comments were obiter, as Finlay C.J. made clear in the following paragraph, in which he stated that, at that stage, on an interlocutory application, it was neither possible, nor would it be proper for the court to seek to decide that issue, the only test being whether there was a fair question to be tried.
[43] Counsel for the plaintiff also relied on a decision of the Court of Appeal of England and Wales in Associated Newspapers Group v. Wade [1979] 1 W.L.R. 697 and, in particular, the judgment of Lord Denning M.R. The statutory provision in issue in that case was a section of a 1974 statute of the United Kingdom parliament, which was intended to give immunity from action in tort in respect of certain acts, for example, inducement of breach of contract, if done “in contemplation or furtherance of a trade dispute”. The defendant was the general secretary of a trade union which, with the object of achieving recognition by a publisher which employed its members and was much used by advertisers, began a campaign to halt or reduce the supply of advertisements to the newspaper by sending circular letters to all its advertisers asking them to stop that advertising and warning that if they did not do so all their other advertisements in national, provincial and in local newspapers, magazines and periodicals would be “blacked” by union members. Many advertisers complied with the demand. As regards sixteen advertisers who did not comply, the general secretary instructed all members that no material from those advertisers should be handled anywhere until further notice. The advertisers affected brought proceedings claiming injunctions restraining, inter alia, unlawful interference with business, intimidation, conspiracy, inducing breaches of contract and of statutory duty (one of the plaintiffs being a water authority and another being a health authority). The union’s defence was that its acts were “in furtherance of a trade dispute” and so immune from actionability in tort under the statutory provision in question. The plaintiffs were successful at first instance and in the Court of Appeal. On the construction of the words “in furtherance of” a trade dispute, Lord Denning M.R. stated, at p. 713:-
“¦ I would put it simply on the question of remoteness. Some acts are so remote from the trade dispute that they cannot properly be said to be ‘in furtherance’ of it. When conduct causes direct loss or damage to the employer himself (as by withdrawing labour from him or stopping his supplies) it is plainly ‘in furtherance’ of the dispute with him. But when trade unions choose not to cause damage or loss to the employer himself, but only to innocent third persons – who are not parties to the dispute – it is very different. The act may then be so remote from the dispute itself that it cannot reasonably be regarded as being done ‘in furtherance’ of it. The trade union may believe it to be in furtherance of it, but their state of mind is by no means decisive. It is the fact of ‘furtherance’ that matters, not the belief in it.”
In that passage Lord Denning was advocating that an objective test be applied in determining whether the actions were in furtherance of a trade dispute. In applying the objective test to the facts before him, he concluded that there was “a good argument” for saying that the acts done were not in furtherance of a trade dispute. The other members of the Court of Appeal considered that the construction of the words “in contemplation or furtherance of a trade dispute” was not a matter for an interlocutory appeal and, in essence, decided that the injunction should continue on the basis that the balance of convenience favoured that course.
[44] The test advocated by Lord Denning was not applied by the House of Lords in Express Newspapers Ltd. v. McShane [1980] A.C. 672 on an appeal from a decision of the Court of Appeal, of which Lord Denning was also a member, and in which the same statutory provision was in issue as had been in issue in the Associated Newspapers Group v. Wade [1979] 1 W.L.R. 697. That case arose out of a dispute over pay between the proprietors of local newspapers and journalists employed by them, the majority of whom were members of a trade union, the N.U.J. Strike action was taken against the local newspapers. Those newspapers received news copy from the Press Association, a London based news agency staffed by journalists. In order to make the strike more effective, the N.U.J. called on the journalists in the Press Association to come out on strike, an action which would affect national newspapers, with whom there was no dispute, as well as local newspapers. When about half of the journalists on the Press Association remained at work, the N.U.J. called on its members working for national newspapers, including the plaintiffs’ newspapers, to refuse to use copy which came from the Press Association. The N.U.J. defended an application for an interlocutory injunction on the basis that it was acting in “furtherance of a trade dispute” within the meaning of the relevant statutory provision. The plaintiffs were successful both at first instance and in the Court of Appeal. However, the House of Lords allowed the appeal, holding that the acts of the defendants were not actionable since they were done in furtherance of a trade dispute.
[45] As the head note indicates, the majority in the House of Lords, including Lords Diplock and Scarman, held that the expression “in ¦ furtherance of a trade dispute” in the section in issue “refers to the subjective state of mind of the person doing the act and means that he so acts with the purpose of helping parties to the dispute to achieve their objectives in the honest and reasonable belief that it will do so”. Lord Wilberforce dissented and held that the test was objective and to an extent was based on remoteness, but, as the headnote indicates, his view was that the proper objective test is whether the act done, pursuant to the general intention, is reasonably capable of achieving its objective. The speeches of both Lord Diplock and Lord Scarman highlight the difficulties which a court would encounter in endeavouring to objectively assess what is in “furtherance” of a trade dispute having regard to the dynamics of industrial action in a particular context.
[46] The rationale behind the subjective test approach is explained in the following passage from the speech of Lord Diplock, at pp. 686 and 687:-
“Given the existence of a trade dispute (the test of which, though broad, is nevertheless objective ¦), this makes the test of whether an act was done ‘in ¦ furtherance of’ it a purely subjective one. If the party who does the act honestly thinks at the time he does it that it may help one of the parties to the trade dispute to achieve their objectives and does it for that reason, he is protected by the section. I say ‘may’ rather than ‘will’ help, for it is in the nature of industrial action that success in achieving its objectives cannot be confidently predicted. Also there is nothing in the section that requires that there should be any proportionality between on the one hand the extent to which the act is likely to, or be capable of, increasing the ‘industrial muscle’ of one side to the dispute, and on the other hand the damage caused to the victim of the act which, but for the section, would have been tortious. The doer of the act may know full well that it cannot have more than a minor effect in bringing the trade dispute to the successful outcome that he favours, but nevertheless is bound to cause disastrous loss to the victim, who may be a stranger to the dispute and with no interest in its outcome. The act is none the less entitled to immunity under the section.”
[47] Counsel for the plaintiff referred the court to a passage from the speech of Lord Scarman, who expressed himself in agreement with Lord Diplock. Lord Scarman stated, at pp. 693 and 694:-
“The words, ‘An act done by a person in contemplation or furtherance of a trade dispute’ seem to me, in their natural and ordinary meaning, to refer to the person’s purpose, his state of mind. The court must satisfy itself that it was his purpose, and, before reaching its decision, will test his evidence by investigating all the circumstances and applying the usual tests of credibility: that is to say, it will ask itself whether a reasonable man could have thought that what he was doing would support his side of the dispute, or whether the link between his actions and his purpose was so tenuous that his evidence is not to be believed. But, at the end of the day, the question for the court is simply: is the defendant to be believed when he says that he acted in contemplation or in furtherance of a trade dispute?”
Later, Lord Scarman reiterated that the test was subjective, stating, at p. 694:-
“It follows, therefore, that, once it is shown that a trade dispute exists, the person who acts, but not the court, is the judge of whether his acts will further the dispute. If he is acting honestly, Parliament leaves to him the choice of what to do. I confess that I am relieved to find that this is the law. It would be a strange and embarrassing task for a judge to be called upon to review the tactics of a party to a trade dispute and to determine whether in the view of the court the tactic employed was likely to further, or advance, that party’s side of the dispute¦ It would need very clear statutory language to persuade me that Parliament intended to allow the courts to act as some sort of a backseat driver in trade disputes.”
[48] Turning to Part II of the Act of 1990, the expression “in contemplation or furtherance of a trade dispute” is to be found not only in s. 11(1) and (2) but also in s. 10(1) and (2), in s. 12, in s. 13(1) and (2) and in s. 19(2). That expression is not defined in the Act of 1990, nor was it defined in the Act of 1906. However, the provisions of s. 13 of the Act of 1990, in my view, cast some light on what the Oireachtas intended by the expression in enacting Part II of the Act of 1990. Section 13(1), which I have quoted earlier, gives immunity to a trade union, and its trustees, members, and officials, against an action in tort where the alleged tortious act was committed “in contemplation or furtherance of a trade dispute”. Section 13(2) makes it a defence to an action in tort against a trade union, its trustees, members, or officials, that the alleged tortious act was done “in the reasonable belief that it was done in contemplation or furtherance of a trade dispute”. That provision indicates that, in the particular context which arises in this case, where the defendants invoke the provisions of s. 13(1) and (2), which they are entitled to do as a trade union and a member of a trade union, it was the intention of the Oireachtas that, in determining whether the act in issue, in this case the picketing, is in furtherance of a trade dispute, the court should adopt a via media between the application of an objective test (as advocated by Lords Denning and Wilberforce) and the application of a subjective test simpliciter (as advocated by Lords Diplock and Scarman).
[49] In this case, the sole basis on which the plaintiff brings the action, and seeks relief, against the defendants is that they have committed torts. The defendants defend on the basis that their actions are lawful pursuant to s. 11(1) and that, as a trade union and a member of a trade union, they have immunity from a suit in tort and a defence to the plaintiff’s action under s. 13. Given that context, it seem to me that, in applying the provisions of Part II of the Act of 1990 to the defendants, including s. 11(1) and s. 13, the question for the court is whether, in maintaining the picket, the defendants are acting in the reasonable belief that their actions are in furtherance of the trade dispute between Pickerings and the defendants.
[50] In my view, there is no doubt on the facts that the only objective behind the picketing by the defendants of the Ballymun premises from the outset has been, and is, to achieve a resolution of the trade dispute with Pickerings which is favourable to the Union and its members. While it is an unfortunate consequence of the implementation of that objective that extreme hardship has been, and is being, inflicted on the tenants of the apartments in the Ballymun tower blocks, that outcome is not the defendants’ objective and it is a matter of regret to them. On the basis of Mr. Hall’s evidence, I am satisfied that, in initiating the picketing, the defendants acted in the reasonable belief that picketing at the Ballymun premises would have the effect they aim for. I am satisfied that they continue to act in that belief, notwithstanding that the contractual relationship between Pickerings and the plaintiff has ceased.
[51] I reach that conclusion notwithstanding that, because of the changed circumstances, it may be reasonable to infer that the plaintiff may have even less clout against Pickerings since the 25th March, 2010, when the contractual relationship ceased, than it had between the commencement of the picketing and that date in relation to bringing about a settlement of the defendants’ trade dispute with Pickerings which is favourable to the defendants. However, the officers of the Union are in a position to assess whether picketing the Ballymun premises, where their members as employees of Pickerings provided services in relation to the lifts for over twenty years, and which services are required on an ongoing basis, has the effect, to use the terminology used in one of the earliest cases in which the meaning of “furtherance” of a trade dispute in the Act of 1906 was considered, Conway v. Wade [1909] A.C. 506, of promoting the interest of either party, that is to say, Pickerings or the defendants, to the trade dispute. I am satisfied on the evidence of Mr. Hall that, notwithstanding the termination of the plaintiff’s contract with Pickerings, the defendants have continued picketing at the Ballymun premises in the reasonable belief that their actions will have the effect of promoting the interests of the Union and its members in the dispute with Pickerings.
[52] Therefore, I conclude that the picketing at the Ballymun premises is in furtherance of the trade dispute between Pickerings and the defendants within the meaning of s. 11(1) of the Act of 1990.
Picketing at a place where Pickerings “works or carries on business”?
[53] To recapitulate on the factual position in relation to Pickerings’ presence at the Ballymun premises and, in particular, whether, within the ordinary meaning of the concept of an employer working or carrying on business, they were doing so at the Ballymun premises on various dates which may be relevant for the purposes of the application of s. 11(1), I have found as follows:-
(a) when the defendants commenced picketing at the Ballymun premises on the 4th February, 2010, Pickerings was working or carrying on business there;
(b) on and from the 25th March, 2010, the contractual relationship between Pickerings and the plaintiff had definitely terminated and Pickerings was no longer obligated to provide services for the plaintiff at the Ballymun premises, nor had Pickerings any entitlement to enter or remain on the Ballymun premises and after the 25th March, 2010, Pickerings did not work or carry on business there, irrespective of the fact that some of its goods and chattels remained in the premises; and
(c) on the 19th April, 2010, when these proceedings were initiated, Pickerings was not working or carrying on business at the Ballymun premises and that remains the position to the present day.
[54] In order to find that, as a matter of law, the picketing by the defendants at the Ballymun premises is lawful by virtue of s. 11(1), as the defendants contend, the court must be satisfied that the Ballymun premises are “a place where [Pickerings] works or carries on business” within the meaning of that subsection. The difficult question of construction to which these proceedings give rise is whether, in using the present tense in the expression “works or carries on business” in s. 11(1), the Oireachtas intended the picketers to have the protection of s. 11(1) if the picketers’ employer was working or carrying on business at the location of the picketing when the picketing commenced even if, for whatever reason, the employer ceased to be working or carrying on business at that location at a point in time thereafter before the court is required to adjudicate on the matter.
[55] Counsel for the plaintiff referred the court to two authorities on the use of the present tense in a statutory provision which I have not found to be of any assistance in construing s. 11(1).
[56] The first was the decision of the Supreme Court in Iarnrod Eireann v. Holbrooke [2001] 1 I.R. 237. That decision concerned the construction of the definition of “excepted body” in s. 2 of the Trade Union Act 1942, which definition includes a requirement that the body is one “which carries on negotiations for fixing wages or other conditions of employment of its own members (but of no other employees)”. One of the defendants in the action, the Irish Locomotive Drivers’ Association, was a registered trade union and the position of the defendants was that it was an “excepted body” within that definition. It was not recognised by the plaintiff employer, which would not negotiate with it. In his judgment, with which the other members of the Supreme Court agreed, Fennelly J. stated, at p. 245:-
“As I see it, the issue is whether a body can claim that it ‘carries on negotiations’ (noting the use of the present tense) where patently it does not and cannot do so because the employer refuses to negotiate.”
On that issue, Fennelly J. found that the trade union in question could not be an “excepted body”. Clearly, there was no other application of the definition open, as the trade union had only been registered in July, 1999 and it had never carried on negotiations.
[57] The second authority was a decision of the Judicial Committee of the Privy Council in Maradana Mosque Trustees v. Mahmud [1967] A.C. 13. That was an appeal from the Supreme Court of Ceylon, which raised an issue of the construction of a statute which regulated the governance of “unaided” schools in what was then Ceylon. The provision in issue empowered the relevant Minister to make an order which effectively amounted to State takeover of the management of the school in the circumstances stipulated – that the Minister was satisfied that the school “is being so administered in contravention of any provisions of this Act”. The Act required that teachers’ salaries be paid not later than the 10th of the month following that in respect of which they were due. The appellants, in 1961, having failed to pay certain teachers’ July salaries by the 10th August, were invited on the 11th August to show cause why the school should not be taken over. The appellants showed cause on the 15th August, undertook to pay the teachers by the 18th August and followed through on that undertaking. On the 21st August the Minister made an order under the section and the validity of the order was challenged by the appellants. On the use of the present tense in the relevant section, Lord Pearce, delivering the judgment of the Privy Council, stated, at p. 25:-
“Before the Minister had jurisdiction to make the Order he must be satisfied that ‘any school ¦is being so administered in contravention of any of the provisions of this Act’. The present tense is clear. It would have been easy to say ‘has been administered’ or ‘in the administration of the school any breach of any of the provisions of this Act has been committed’, if such was the intention of the legislature. But for reasons which common sense may easily supply, it was enacted that the Minister should concern himself with the present conduct of the school, not the past, when making the Order.”
What distinguishes the provision under consideration in that case from the aspect of s. 11(1) with which the court is now concerned is that it was expressly provided in the section under consideration by the Privy Council that the conduct of the appellants was to be assessed at a particular point in time, namely, the date on which the Minister was making the order, whereas s. 11(1) is concerned with the existence of a state of affairs which renders picketing lawful without expressly identifying the point in time at which the existence of the state of affairs is to be assessed.
[58] An unusual feature of this case, to which I have alluded in my judgment on the interlocutory application, is that the proper construction of s. 11(1) was considered, on the hearing of an interlocutory application, by McCracken J. in Malincross v. Building and Allied Trades Union [2002] 3 I.R. 607. In the passage from his judgment, which I quoted in my earlier judgment, and which I consider it useful to quote again now, McCracken J. stated, at p. 610:-
“This section provides that it is lawful for persons, in contemplation or a furtherance of a trade dispute, to attend at ‘a place where their employer works or carries on business’. While the defendants accept that the employer no longer works or carries on business at the site, they say that, on the proper construction of this phrase, they are entitled to picket at any place where the employer did work or carry on business in the past. While, to my mind, this is a very strained construction of the present tense used in the section, counsel for the defendants referred me to the DailDebates which disclose that an amendment was moved to add the words ‘or, at the commencement of the dispute, had normally worked or had normally carried on business’. This amendment was withdrawn following a statement by the then Minister for Labour that that situation was already covered by the wording used, which the Minister called ‘the historic present tense’. While I do not think that the views of a Minister in a Daildebate should determine the construction of this section, nevertheless I think that I can have regard to them in determining whether, at the hearing of this action, there is a fair question to be tried as to the construction of the section. I have no doubt that the hearing of an interlocutory injunction is not the time to enter into a detailed discussion on grammar. I am satisfied, however, that there is a fair case to be tried as to the construction of s. 11(1).”
While it was not suggested by counsel for the defendants (properly, in my view, having regard to the decision of the Supreme Court in Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251) that the court should have regard to the views expressed by the Minister in a Daildebate in endeavouring to ascertain the proper construction of s. 11(1) and while the court was not subjected to submissions on grammar, in the light of the comments of McCracken J. on the history of the passage of the Act of 1990 through the Houses of the Oireachtas, it would be remiss not to consider whether there is some grammatical rule or convention which bears on the interpretation of the use of the present tense in s. 11(1).
[59] In Fowler’s A Dictionary of Modern English Usage (Wordsworth Editions Ltd., 1994) in dealing with technical terms it is stated, at p. 608:-
“H[istoric present] is, in any language, the present indicative used instead of a past to give vividness in describing a past event.
(He says nothing, but ups with his fist & hits me in the eye).”
In The Shorter Oxford English Dictionary (3rd ed.) in volume 1 at p. 968, the epithet “historic” is referred to as applying in Greek and Latin grammar to tenses used in the narration of past events and “generally, to the present tense, when used instead of the past in vivid narration 1845”. I think it is abundantly clear that, in using the present tense in the expression “works or carries on business” in s. 11(1), the Oireachtas was not endeavouring to do what the “historic present” is aimed at – to create a vivid narrative – as in the example given by Fowler, or in the example frequently given in relation to titles, “The Empire Strikes Back”. Therefore, in my view, the proper construction of s. 11(1) is not to be achieved by resorting to an arcane rule of grammar.
[60] The proper construction is to be found in the language used in s. 11. To constitute lawful picketing for the purposes of s. 11, it is a requirement that the picketing is engaged in at the place where the targeted employer “works or carries on business”. Clearly, at the time the picketing commences that requirement must be fulfilled. Accordingly, picketing cannot lawfully be engaged in at a place where the targeted employer had worked or carried on business, say, a week, or a month or a year previously. The question which the factual situation which arises in this case raises is whether, as a matter of construction of s. 11(1), picketing which meets the requirement that the picketers’ employer “works or carries on business” at the location of the picketing when it commences will only continue to be lawful if the requirement continues to be complied with up to the time the application of s. 11 is considered by the court. To put it in another way, if the picketers’ employer ceases to work or carry on business at the location of the picketing after commencement of the picketing, does that mean that the picketing ceases to be lawful?
[61] Section 11(2) gives an indication of what the Oireachtas intended in imposing in both s. 11(1) and (2) the requirement of the targeted employer working or carrying on business at the location of the picketing to render it lawful. This flows from the manner in which the Oireachtas dealt with the additional elements which require to be present to render secondary picketing lawful under subs. (2) – that the picketers must believe at the commencement of the picketing and throughout its continuance that the employer who is not a party to the trade dispute has directly assisted the picketers’ employer for the purposes of frustrating the industrial action. As regards that additional element – the presence of a certain state of mind on the part of the picketers – the Oireachtas has expressly addressed the possibility that it may not continue. If it changes post-commencement, the picketing will cease to be lawful.
[62] Having regard to the manner in which the Oireachtas has treated that additional requirement to render secondary picketing lawful, if it was the intention of the Oireachtas that the requirement as to the targeted employer working or carrying on business at the location of the picketing should apply not only at the commencement of the picketing but also throughout the continuance of the picketing, it is strange that this was not spelt out in both subss. (1) and (2). The fact that it was not suggests that such was not the intention of the Oireachtas. It suggests that it is to be implied that the use of the present tense in both subsections, in imposing the requirement as to the targeted employer working or carrying on business at the location of the picketing, indicates that the requirement is to be complied with when the picketing commences. In other words, although the present tense is used, it is open to the construction that the point in time at which the state of affairs which is required to exist in order to render the picketing lawful – that the targeted employer “works or carries on business” at the location of the picketing – is to be assessed when the picketing commences.
[63] There are multifarious factual scenarios in which s. 11(1) may fall to be applied and in which the question whether the picketers’ employer “works or carries on business” at the location of the picket at a particular time may arise. The picketers’ employer may work or carry on business in his own premises or, as was the position of Pickerings at the Ballymun premises, in the premises of a third party to whom he is under contract. Likewise there are multifarious circumstances in which the picketers’ employer may cease to work or carry on business in premises which are the subject of the picket. He may do so through his own actions (for example, by ceasing to trade there or by surrendering a lease). The situation may be brought about by the actions of a third party (for example, in the case of a company, by a winding up order made by a court, or by the forfeiture of a leasehold interest in the premises by the landlord, or by the termination by the other contracting party of a contract for services, as occurred in this case, or a franchise agreement, or a building contract, as happened in Malincross v. Building and Allied Trades Union [2002] 3 I.R. 607). Another possibility is that the cessation may be due to the term of a fixed term contract expiring, as would have happened in this case on the 30th June next, or to the term of a lease expiring by effluxion of time. The application of s. 11 may be further complicated by the existence of special legislation which is applicable to the circumstances in which the picketers’ employer has ceased to work or carry on business at the location of the picketing, for example, the special rules which govern the transfer of undertakings derived from Council Directive 2001/23/EC and the regulations made to transpose it.
[64] It is not practicable to consider the implications of each of the very many different circumstances in which the picketers’ employer ceases to work or carry on business at the location of the picketing after it has commenced which a court may have to consider in the application of s. 11(1). However, it seems to me that, whatever the implications are, they should not give rise to a situation which would be at variance or inconsistent with the obvious purpose of the Oireachtas in confining lawful picketing to the location where the relevant employer in subs. (1) or subs. (2) “works or carries on business” when replacing s. 2 of the Act of 1906 by s. 11 of the Act of 1990, if the expression is interpreted as referring to the state of affairs at the commencement of the picketing. The obvious purpose was to exclusively link the location of lawful picketing to the work or business environment of the relevant employer. Further, without analysing the multiplicity of scenarios which may arise, it is highly probable that such interpretation, in certain scenarios, would avoid frustrating the intention of the Oireachtas in enacting s. 11(1), which is to clearly define the circumstances in which picketing is lawful.
[65] The requirement in s. 11(1) that the picketers’ employer “works or carries on business” at the location of the picketing is only one of the strictures imposed in s. 11(1) on trade unions and workers who wish to engage in lawful picketing. The other strictures are that, where the trade dispute is in existence, the picketers’ objective must be the furtherance of the trade dispute and their purpose must be merely to peacefully obtain or communicate information or to peacefully persuade any person to work or abstain from working. Those additional strictures, it seems to me, sit comfortably with a construction of s. 11(1) under which the requirement is that the picketers’ employer works or carries on business at the location of the picketing when the picketing commences rather than throughout the continuance of the picketing. The necessity to comply with the additional strictures must, even as a matter of common sense, narrow the circumstances in which lawful picketing may continue once the picketers’ employer has departed the scene, and must reduce, if not entirely eliminate, the possibility of picketing for a useless or an illegitimate purpose.
[66] For all of the foregoing reasons I have come to the conclusion that, in applying s. 11(1), the relevant date at which to test whether the picketers’ employer “works or carries on business” at the location of the picketing is the date when the picketing commences and, if the test is satisfied at that date, the picketing is lawful, provided the other requirements of s. 11(1) are complied with, even if the picketers’ employer is no longer working or carrying on business at the location at the time the court is considering the application of s. 11(1). In this case, accordingly, as Pickerings was working or carrying on business at the Ballymun premises on the 4th February, 2010, when the picketing commenced, the test is satisfied.
Ancillary issues
[67] In view of the manner in which I consider s. 11(1) is to be construed and the finding I have made that, on its application in the present case, the picketing at the Ballymun premises is lawful by virtue of that provision, the ancillary issues outlined earlier at (b) and (c) of para. [24] do not arise. While I consider that it is neither necessary nor appropriate to determine those issues, I have some general observations to make, which are largely explanatory.
[68] The interesting argument that, irrespective of s. 2 of the Act of 1906, peaceful picketing confined to persuasion or communication of information is not unlawful at common law, the position advocated on behalf of the defendants, did not receive judicial approbation in this jurisdiction before the enactment of the Act of 1990. For instance, incEsplanade Pharmacy Ltd. v. Larkin and Others [1957] I.R. 285, O’Daly J. stated, at p. 298:-
“But picketing, otherwise watching and besetting, a premises is lawful only in the conditions defined in the Trade Disputes Act 1906; and the Act, being in derogation of common law rights, has no wider scope than is found clearly marked out in it.”
The Oireachtas, in enacting the Act of 1990, which followed a period of economic downturn and industrial unrest in the 1980s, and, in particular, in enacting ss. 8 to 19 inclusive in Part II, which deal with trade disputes, set out to reform and codify the law on trade disputes, strikes and other industrial action, picketing and the involvement of trade unions. In my view, it would require a very convincing argument to lead to a conclusion that, in the context of a trade dispute within the meaning of s. 8 of the Act of 1990, peaceful picketing by a trade union and its members, which is not lawful under s. 11(1) of the Act of 1990, does not give rise to civil liability at common law. However, whether a suitably convincing argument can be made is for another day.
[69] Insofar as the plaintiff’s case is based on the interference with the plaintiff’s tenants’ rights, it is somewhat vague and a question must arise as to what standing the plaintiff has to invoke its tenants’ rights in these proceedings. The formulation of the issue at (c) in relation to such interference was prompted by the plaintiff’s reliance on the following decisions of the Supreme Court:-
(a) Heeney v. Dublin Corporation (Unreported, Supreme Court, 17th August, 1998), which was an action by tenants of flats in the Ballymun tower blocks against the plaintiff during the strike by members of the Union against Pickerings in 1998; and
(b) Talbot (Ireland) Ltd. v. Amalgamated Transport and General Workers’ Union (Unreported, Supreme Court, 30th April, 1981), which was reported in the Irish Times on the 1st May, 1981, the Irish Times report being reprinted in McMahon and Binchy,Casebook on the Irish Law of Torts (Professional Books, 1983), at p. 450.
[70] The decision of the Supreme Court in Heeney v. Dublin Corporation (Unreported, Supreme Court, 17th August, 1998), in my view, is of no assistance in determining the issue as to the legality or otherwise of the defendants’ current action. The purpose of the following outline of the decision is merely to illustrate that. In his ex temporejudgment delivered on the 17th August, 1998, O’Flaherty J., having outlined Mrs. Heeney’s circumstances – that she was 76 years of age, that she lived alone on the seventh floor of an eight storey tower block in Ballymun, that, because of her physical condition, during a period of approximately six weeks during which the lift servicing her flat had not been working she had been unable to leave her flat except to go out onto the balcony, and that she regarded herself as a prisoner in her own home – O’Flaherty J. stated, at p. 8:-
“It is beyond debate that there is a hierarchy of constitutional rights and at the top of the list is the right to life, followed by the right to health and with that the right to the integrity of one’s dwellinghouse. The Constitution expressly provides that the dwelling of every citizen is inviolable and cannot be forcibly entered save in accordance with law. In my judgment, the corollary of that guarantee must be that a person should be entitled to the freedom to come and go from his dwelling provided he keeps to the law. So there is here a very serious situation from the point of view of the plaintiffs.”
What is clear from the judgment is that, “after a process of debate”, the plaintiffs’ predecessor, Dublin Corporation, intimated that it was prepared to comply with the consent order made by the Supreme Court to “take all reasonable steps within their power and authority to explore every means so as to repair or have repaired and when repaired keep maintained the lifts in the Ballymun complex so that the plaintiffs and each of them may enjoy the use thereof in accordance with their rights under the law and their tenancy agreements pending the hearing of the action”.
[71] The decision of the Supreme Court in Talbot (Ireland) Ltd. v. Amalgamated Transport and General Workers’ Union (Unreported, Supreme Court, 30th April, 1981) was given on an appeal by the Irish Congress of Trade Unions (I.C.T.U.) and Matthew Merrigan, an official of the Amalgamated Transport and General Workers Union (A.T.G.W.U.), against an interlocutory injunction which had been granted in the High Court some weeks previously. The proceedings arose out of a total embargo by all members of unions affiliated to I.C.T.U. on the importation and movement of Talbot cars, spare parts and other components, and also services in connection with the company’s activities throughout Ireland. The newspaper report records that one member of the Supreme Court, Kenny J., said that the Act of 1906 had no application in the case. The observations of Henchy J., delivering an ex temporejudgment, with which the other members of the court agreed, were reported as follows:-
“Whether there was a trade dispute or not, a body or bodies must operate within the constitutional framework and the constitutional guarantees in Article 40, and it would have to be borne in mind that innocent persons could not be damnified ¦ persons such as dealers who had no dispute with anybody, or the owners of vehicles who had no dispute with anybody but who, because of this embargo could not get their cars serviced ¦
In this case it was clear that there had been an inducement of the various workers and the various unions affiliated to Congress to procure breaches of contract between the company and the persons and bodies mentioned, and that was a tort, and that it had not been done with any lawful excuse.
It was quite clear that the legitimacy of the trade dispute that existed was not in question. It had been suggested that what had happened was an embargo only in name and that the effect was no more than an all-out strike.
But what had happened had gone far beyond that – far beyond any picket; far beyond any strike, far beyond any legitimate industrial action. ¦”
It was reported that the Supreme Court made an order restraining the respondents pending the trial of the action “from inducing or procuring any breach of a commercial contract between the company and any third party and in particular between the company and Talbot (U.K.) Ltd. and between the company and its dealers”.
[72] The decision of the Supreme Court in Talbot (Ireland) Ltd. v. Amalgamated Transport and General Workers’ Union (Unreported, Supreme Court, 30th April, 1981) has been the subject of much academic debate, not only in the sphere of industrial relations but also in the sphere of constitutional law. Although it has something in common with this case, in that the genesis of the dispute between the A.T.G.W.U. and Talbot was redundancies, the conduct at issue there, an outright embargo, was considered by the Supreme Court not to constitute “legitimate industrial action”, unlike this case, in which the defendants are exercising their rights under s. 11(1) of the Act of 1990. Insofar as the conduct of the defendants amounts to the tort of inducement of breach of contract, prima facie, the defendants are immune from suit by virtue of s. 13(1) of the Act of 1990, which is a post-1937 statute, which carries the presumption of constitutionality.
Summary of conclusions
[73] I am satisfied that the defendants are prima facie trespassing on property owned by the plaintiff. If the defendants are not immune under s. 13 of the Act of 1990, they can rectify that situation by moving the picket onto the nearby public pavement. The interface between ss. 11, 13 and 19(4) was not fully explored at the hearing.
[74] I am satisfied that picketing by the defendants on the public pavement leading to the Ballymun premises would be lawful in accordance with s. 11(1) of the Act of 1990, being in furtherance of a trade dispute and being at the approaches to a place where the picketers’ employer, Pickerings, worked or carried on business at the commencement of the picketing on the 4th February, 2010, and being for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or to abstain from working.
[75] The issue as to whether the defendants are entitled at common law to picket does not arise for determination.
[76] Prima facie, the defendants are entitled to the protection afforded by s. 13 of the Act of 1990, so that, even if their conduct constitutes the tort of inducement of contract, they are immune from suit.
Malincross Ltd. v. Building and Allied Trades Union
[2001] IEHC 170
Mr. Justice McCracken
“1. This is an application for an Interlocutory Injunction to restrain picketing by the Defendants at a building site at Naul Road, Balbriggan, Co. Dublin. The background to this Application is somewhat unusual.
….
5. Mr. Kerr, on behalf of the Defendants, has made it quite clear that his clients are not relying on the provisions of Section 11(2) of the Industrial Relations Act 1990, and are not seeking protection from the court for secondary picketing. The Defendants do, however, seek to justify their right to picket on three grounds which I propose to consider individually.
1. CONSTRUCTION OF SECTION 11(1)
6. This Section provides that it is lawful in contemplation or a furtherance of a trade dispute to attend at “a place where their employer works or carries on business”. While the Defendants accept that the employer no longer works or carries on business at the site, they say that on the proper construction of this phrase, they are entitled to picket at any place where the employer did work or carry on business in the past. While to my mind this is a very strained construction of the present tense used in the section, Mr. Kerr referred me to the Dáil Debates which disclose that an amendment was moved to add the words “or, at the commencement of the dispute, had normally worked or had normally carried on business”. This amendment was withdrawn following a statement by the then Minister for Labour that that situation was already covered by the wording used, which the Minister called “The historic present tense”. While I do not think that the views of the Minister in a Dáil Debate should determine the construction of this section, nevertheless I think I can have regard to it in determining whether, at the hearing of this action, there is a fair question to be tried, as to the construction of the section. However, I have no doubt that the hearing of an Interlocutory Injunction is not the time to enter into a detailed discussion on grammar. I am satisfied, however, that there is a fair case to be tried as to the construction of Section 11(1).
2. SECTION 19(2)
7. The defendant argues that the court cannot grant an Interlocutory Injunction because of the provisions of this sub-section which reads:-
“Where a secret ballot has been held in accordance with the rules of a Trade Union as provided for in Section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the Trade Union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an Injunction restraining the strike or other industrial action where the Respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute”.
8. I am satisfied that the Union in the present case held a secret ballot in accordance with its rules, and that those rules were as provided for in Section 14 of the Act, and I am also satisfied that the Union gave notice of not less than one week to the employer of its intention to take industrial action. I am also satisfied that the Union has established a fair case that it was, and I would emphasise that the sub-section uses the past tense, acting in contemplation or furtherance of a trade dispute, as there was clearly a trade dispute in existence at the time the ballot was held.
9. The problem for the Defendants exists by reason of the wording of the proposal which was balloted on. The ballot paper read:-
“SUBJECT: to engage in industrial action with P. P. O’Sullivan (Leinster) Ltd., including the placing of pickets on company site at Naul Road, Balbriggan”.
10. The ballot paper then contained boxes headed “In Favour” and “Against”. There is no doubt that this authorised the original picketing, as it would be quite clearly understood by all members that the site in Balbriggan was what was referred to as “the company site”, as it was the site where the employer was carrying on business. The question remains whether this ballot authorised the placing of pickets at the site when it ceased to be the company site of the employer.
11. The extent to which the proposals in the ballot had to identify the nature of the industrial action under Section 19(2) was considered by the Supreme Court in G & T Crampton Ltd. v. Building & Allied Trades Union & Ors [1998] 1 ILRM 430. In that case the ballot had simply been “on proposal to engage in strike or other industrial action” without specifying the nature of the strike or industrial action at all. In dealing with this issue Hamilton C. J. said at page 437 :-
“I am satisfied that the Affidavits disclosed a fair question to be tried on a question as to whether or not the provisions of Section 11(1) applied to the Defendants in the proceedings and also that a number of questions stand to be determined with regard to the interpretation of the provisions of Section 14 and Section 19 of the Industrial Relations Act and the questions to be raised there as to whether or not in the conduct of a ballot a Union should be required to particularise the nature of the industrial action for which they seek support of their members and that the proposal being put before those members should particularise such action and (I am expressing no concluded view on it), whether it is not sufficient to comply with the requirements of such act merely to have a ballot favouring a strike or other industrial action without particularising the nature of the industrial action to be taken by the Union and for which they seek their members approval. This is a serious issue to be tried in this case because undoubtedly from an examination of the ballot papers, first of all, no actual proposal was placed before the members and even if it were interpreted that the heading “Ballot on proposal to engage in strike or other industrial action” was held to be a sufficient proposal, the question arises again as to whether it is in compliance with the provisions of Section 14 and Section 19 of the Act.”
12. He then concluded:-
“That being so I am satisfied that there are two issues to be tried in this case that have been raised by the Plaintiff in these proceedings and I am satisfied that there is a fundamental issue with regard to the interpretation of Sections 14 and 19 of the Act and that the learned Trial Judge was entitled to come to the conclusion that the condition precedent to the implementation of Section 19 was not established.”
13. Unfortunately, this case never proceeded to a full hearing, and therefore these matters were not determined, but in my view the issues which arise in the present case are almost identical to those that arose in the G. & T. Crampton case. The sufficiency of the secret ballot is clearly a condition precedent to the right of the Defendants to resist an Interlocutory Injunction under Section 19(2). While the members of the Union clearly authorised strike action at the employers’ premises, and therefore direct strike action against the employer, I think there is a serious issue as to whether that in itself is sufficient to justify strike action in relation to what were once the employers’ premises but no longer remain so. The purpose of the Act would appear to be to ensure that, if the Union is entitled to the protection of Section 19(2), then it must have the clear support of its members. I think there is a serious issue to tried, but no more as to whether the picketing of the Plaintiff’s premises once the Defendant has left those premises is authorised by the ballot, and until that question has been determined, in my view the condition precedent to Section 19(2) has not been established by the Defendants.
3. TRANSFER OF UNDERTAKING
14. The Defendants also contend that, even if the employer has ceased to have any function in relation to the site, nevertheless there has been a transfer of undertaking from the employer to the Plaintiff within the meaning of the Directive 77/187/EEC as amended by Directive 98/50/EC. This is a very complex matter which would require a great deal more evidence than is before me, and in any event in my view is not a matter to be determined on an Interlocutory Application. The whole relationship between the employer and the Plaintiff would have to be investigated in detail, both in relation to the formation of the original contract and in relation to its termination. It is possibly an arguable point that both were successfully pursuing the same economic activity, namely the development of a housing estate on the site, but it is undoubtedly a matter for the ultimate hearing of the action.
15. Accordingly, as I have determined that there is a bona fide dispute as to whether the preconditions of Section 19(2) have been complied with, the Defendant is not entitled to rely upon the subsection (2) to prevent the grant of an Interlocutory Injunction. In those circumstances, I then have to apply the ordinary principles as laid down by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy [1983] IR 88.
16. If I refuse an Injunction and it is ultimately held that the Plaintiff was ultimately to succeed, I am quite satisfied that the Plaintiff would suffer irreparable loss and damage. The Plaintiff has entered into contracts with purchasers of 28 different houses, and would be unable to complete those contracts. Quite apart from its loss of profits on the contracts, which would probably be quantifiable, the Plaintiff might well also be liable in damages to the 28 purchasers, and its reputation as a developer could be seriously affected. On the other hand, if an Injunction is granted and the Defendants should ultimately succeed, I think the damage to them would be minimal. While the Defendants contend that they are entitled to picket in furtherance of their trade dispute with the employer, they have not demonstrated in any convincing manner just how that trade dispute could be affected by picketing the Plaintiff. Certainly, any loss or disadvantage which might be incurred by the Defendants would be far outweighed by the enormous damage which would be caused to the Plaintiff should an Injunction be wrongly refused, and I have no doubt that the balance of convenience strongly lies in favour of the Plaintiff. That being so, on terms that the Plaintiff give an undertaking as to damages, I will grant the Injunction sought. “
Westman Holdings Ltd. v. McCormack
1992] 1 I.R. 151
Finlay C.J. S.C.
“This is an appeal by the second to seventh defendants, inclusive (“the worker defendants”) against an order made in the High Court by Lardner J. on the 19th April, 1991, by way of interlocutory injunction restraining the defendants from picketing the plaintiff’s premises at Nassau Street, in the city of Dublin. The facts out of which the case arises, which are not in dispute, are as follows. The worker defendants were prior to April, 1991, employed by a company named Alma Taverns as bar and restaurant staff in a licensed premises, restaurant and nightclub, known as Judge Roy Bean’s, in Nassau Street, Dublin. Alma Taverns occupied those premises on a lease which expired on the 1st March, 1991. On that date the business was taken over by their immediate landlords, Westhall Property Company Ltd., who took over also the employment of the worker defendants.
On the 15th March, 1991, Westhall Property Company Ltd. entered into a contract with the plaintiff to sell to it the premises, together with fittings and fixtures, and with the benefit of the licence. Westhall Property Company Ltd. purported to terminate the employment of all its employees in the premises, including the worker defendants, and business ceased on the 5th April, 1991. Immediately prior to the cesser of the business, each of the worker defendants, on whose behalf a trade union official negotiated with Westhall Property Company Ltd., received a sum of money and signed a form of discharge acknowledging the receipt and stating that it was in total discharge of all claims due to such person by Westhall Property Company Ltd./Alma Taverns Ltd., arising out of the defendants’ employment and without admission of liability. The discharge also contained a statement that the signatory had no further claims on the two companies, their directors, their families or any of their dependants of any kind whatsoever. These negotiations had been preceded by a series of notices communicated to the worker defendants on behalf of Westhall Property Company Ltd., which refer to the “sale of the business”.
Immediately after the execution of this discharge on behalf of the worker defendants an official of the trade union, which is the eighth defendant, made a claim on the plaintiff of the entitlement of each of the persons formerly employed by Westhall Property Company Ltd. to continue in the employment of the plaintiff which, it was asserted, arose pursuant to the European Communities (Safeguarding of Employees’ Rights on Transfer of Undertakings) Regulations 1980 (S.I. No. 306) which implemented Council Directive 77/187/EEC of the 14th February, 1977. On the plaintiff’s behalf this claim was rejected; the defendants were not employed, and they then commenced to picket the premises. The picket was an official picket authorised by their trade union. An interim order was made, on an ex parteapplication by the plaintiff, by Blayney J. on the 11th April, 1991, restraining the picket, and the picket was then removed. Subsequently the application for an interlocutory order was made, and that is still in force.
On these facts I am satisfied that two issues of law arise to be tried in this action. The first is a question as to whether the defendants’ action in picketing these premises is protected by the provisions of s. 11, sub-s. 1 of the Industrial Relations Act, 1990, on the basis that the plaintiff must be deemed, within the meaning of that Act, to be “their employer”. The second issue, which in a sense may become related to that issue, is the question as to whether the transaction which took place between the plaintiff and the Westhall Property Company Ltd. constitutes a transfer of business or undertaking, within the meaning of the Council Directive and statutory instrument, and, if it does, whether by virtue of the provisions of those regulations a novation of the contract between the worker defendants and Westhall Property Company Ltd. has occurred, with the consequence that the plaintiff must be deemed in law to be the employer of the worker defendants, and, accordingly, their action in picketing the premises is protected on that basis under s. 11, sub-s. 1 of the Act of 1990.
The relevant provisions of the Industrial Relations Act, 1990
Section 8
“In this Part, save where the context otherwise requires ”
’employer’ means a person for whom one or more workers work or have worked or normally work or seek to work having previously worked for that person;
‘trade dispute’ means any dispute between employers and workers which is connected with the employment or non- employment, or the terms or conditions of or affecting the employment, of any person.”
Section 11, sub-s. 1
“It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.”
On behalf of the plaintiff it is contended that none of the worker defendants was ever employed by the plaintiff and accordingly the plaintiff cannot be “their employer” within the meaning of s. 11, sub-section 1. The submission on behalf of the worker defendants was that “their employer”in the sub-section must be construed as including an “alleged employer”,that is to say, a person claimed by a worker to have a contract of employment with him or an obligation to employ him, otherwise the sub-section would lose its obvious purpose of protecting picketing in support of a dispute concerning non-employment.
I am satisfied that there is a fair bona fide question to be tried on this issue.
Council Directive of 14th February 1977
Article 1.1 of the Directive provides:”
“This Directive shall apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger.”
Article 3.1 provides:”
“The transferor’s rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of Article 1 (1) shall, by reason of such transfer be transferred to the transferee.”
Article 4.1 provides:”
“The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee. This provision shall not stand in the way of dismissals that may take place for economic, technical or organisational reasons entailing changes in the workforce.”
Statutory Instrument No. 306 of 1980,
Article 3
“The rights and obligations of the transferor arising from a contract of employment or from an employment relationship existing on the date of a transfer shall, by reason of such transfer, be transferred to the transferee.”
Article 5.1
“The transfer of an undertaking, business or part of a business shall not in itself constitute grounds for dismissal by the transferor or the transferee and a dismissal, the grounds for which are such transfer, by a transferor or a transferee is hereby prohibited. However, nothing in this Regulation shall be construed as prohibiting dismissals for economic, technical or organisational reasons entailing changes in the work-force.”
With regard to these provisions, the submission made on behalf of the plaintiff is as follows:”
(a) That the premises, fixtures, fittings and licence only were transferred and that there was not a transfer of a business within the meaning of the Directive and Regulations.
(b) That an agreement terminating the employment of each of the worker defendants was reached on the 5th April, 1991, between them and Westhall Property Company Ltd., that the execution of the deed transferring the premises to the plaintiff did not occur until the 10th April, 1991, and that accordingly there was no contract of employment subsisting between Westhall Property Company Ltd. and the defendants at the time of the transfer, within the meaning of either the Directive or the statutory instrument.
(c) Even if the defendants could establish a novation of a contract of employment which existed between them and Westhall Property Company Ltd. so as to make the plaintiff the other party thereto, they never worked for the plaintiff, and the plaintiff therefore does not still come within the definition of being ‘their employer’ under s. 11, sub-s. 1 of the Act of 1990, and accordingly whatever other remedy the defendants might be entitled to they are not lawfully entitled to picket.
The submissions of the defendants on this issue were that the prohibition of termination of employment for the reason of a transfer of a business made invalid any purported determination of the contract of employment between Westhall Property Company Ltd. and these defendants, and that, accordingly, there was such a contract of employment in existence at the date of the transfer which, it is asserted, was clearly a transfer of business and that to give effect, as the national law is bound to do, to the purpose and object of the Directive and the terms thereof, it is necessary to construe s. 11, sub-s. 1 of the Act of 1990 as being applicable to a demand made by the worker defendants to the plaintiff for the enforcement of that novated contract of employment.
I am satisfied there is a fair question to be tried on the issues thus raised.
Having regard to the decision of this Court in Campus Oil v. The Minister for Energy (No. 2) [1983] I.R. 88, and in particular to the judgment of O’Higgins C.J. in that case, I am satisfied that once a conclusion is reached that the plaintiff seeking an interlocutory injunction has raised a fair question to be tried at the hearing of the action in which, if he succeeded, he would be entitled to a permanent injunction that the Court should not express any view on the strength of the contending submissions leading to the raising of such a fair and bona fide question, but should proceed to consider the other matters which then arise in regard to the granting of an interlocutory injunction. They are, firstly, as to whether the plaintiff could, in the event of being refused an injunction and succeeding in the action, be adequately compensated by damages. That question raises two separate issues, potentially, in every case. The first is the question as to whether damages would be an adequate remedy, and the second is as to whether there is a defendant liable to pay such damages who is able to do so, and thus the appropriate compensation could actually be realised.
The loss which will be suffered by the plaintiff if it is right in its claim in this case that the picketing is unlawful, were it to be refused an injunction, is exclusively pecuniary loss, being a diminution of trade in the premises. It is quite clear, therefore, that if compensation could be obtained by way of damages arising out of the picketing from a defendant able to pay the sums involved, that damages would be an adequate remedy.
I am satisfied, however, that the obvious conclusion in this case must be that a combination of an inability to pay on the part of some of the individual defendants and a potential immunity from liability to pay damages for the trade union, who could probably afford to compensate the plaintiff, which is contained in s. 13 of the Act of 1990, make it extremely improbable that the plaintiff would, if refused an injunction, be able to obtain adequate compensation in the event of their establishing that the picket was unlawful.
Having reached that conclusion, the next inquiry must be as to whether, in the event of the injunction being granted, the defendants who would be thereby restrained could if they proved correct in their contention be compensated adequately for any loss they suffered by a combination of the undertaking which must necessarily be given by the plaintiff in order to obtain an injunction and to the existence of any separate claim for damages to be entered by way of counterclaim or otherwise against the plaintiff.
With regard to this issue on the facts in this case, I have come to the conclusion that there are two quite separately identifiable forms of loss which the defendants may incur, if their contention that they are at present entitled to be in continued employment with the plaintiff is found to be correct. The first is that they will lose wages which they should have been receiving from April, 1991. With regard to that loss, I am satisfied that the undertaking which the plaintiff must give, if they are to obtain the interlocutory injunction which was given in the High Court, would be an appropriate and adequate method of compensating the defendants in respect of that loss, and on the information with regard to the assets and financial affairs of the plaintiff it is reasonably probable that it would be able to meet the undertaking it gives. In addition, however, I am satisfied that the defendants, if prevented from striking at this stage, can be said to have suffered a less tangible loss than the mere loss of wages, namely, their opportunity to re-enter employment. If at the conclusion of the hearing of this action the defendants’ assertion of rights pursuant to the Directive and statutory instrument is upheld, quite clearly they then will be in a position, if necessary and if appropriate, to force the plaintiff to re-employ them, and on its refusal so to do, could lawfully mount a picket at that stage and have the effective pressure for negotiations such a situation gives to them. There is, however, some substance, in my view, in the assertion made on behalf of the defendants that if they could mount that picket now that it would be an even greater pressure to aid them in the negotiations to re-enter employment in these premises.
In these circumstances, it seems to me, having regard to the authorities, that I must balance the convenience between the two parties. In my view, the balance of convenience, having carefully considered the factors which arise, is with the granting of an injunction. If no injunction is granted, it is clear that a very substantial loss indeed will be incurred by the plaintiff, even if a trial can be obtained in the High Court in the relatively short time of two or three months. I am satisfied that the high probability is that if that occurs and if the plaintiff succeeds eventually in the action that it will recover no part of its loss.
If, on the other hand, the injunction is continued and at the hearing of the action, after two or three months, the defendants’ contention is upheld the greater part of the loss which the defendants have suffered will be recoverable against the plaintiff, and only a part of the disadvantage occurring to them by reason of the injunction restraining them from picketing will remain uncompensated.
In those circumstances, I conclude that the injunction should continue as an interlocutory injunction, and I would dismiss this appeal.”
Brendan Dunne Ltd. v. Fitzpatrick and Others
[1958] I.R. 29
Budd J.
“The plaintiff Company is a private company. Mr. Brendan Dunne is the managing director thereof. He carried on for some years a business similar to that of the plaintiff Company in Dorset Street. He moved to Dawson Street in 1956 and the Company was incorporated on the 30th August 1956.
The employees of the plaintiff Company are paid salaries claimed to be considerably in excess of trade union rates and also receive a bonus of 10 per cent of the nett yearly profits of the Company divided between them.
It is claimed that this business is to be distinguished from that of ordinary retail furniture dealers who, according to Mr. Dunne, in the main merely sell articles of furniture, already made, in their shops. The employers of the plaintiff Company, Mr. Dunne says, design furniture suitable for a particular house or room, after which it is then specially manufactured. They also advise on the interior decoration of the house or room and on colour schemes. They, in fact, take over responsibility for the overall effect. The employees, Mr. Dunne says, must have an artistic sense, impeccable sense of colour and ability to design and draw. According to him they sell an idea rather than an article. It is suggested for these reasons that the plaintiff Company is not in competition with ordinary furniture retailers and that therefore the employers of such other retailers are in no wise concerned with the activities of the plaintiff Company or its employees from what may be described as the trade union point of view and that such activities cannot threaten in any way the conditions of workers in the furniture trade. This suggestion I reject at the outset. The business carried on by the plaintiff Company may differ in some respects from the activities of many ordinary furniture retailers, but the Company, broadly speaking, carries on business in the furniture trade and in competition with other vendors of furniture. Consequently, the terms of employment and conditions of labour of its employees may be a matter of concern to the employees of other persons engaged in the furniture trade if, and in so far as, such terms and conditions may, in their view, affect their own working conditions.
Sometime in May, 1956, while the business was still a private firm, three members of the staff, Mr. Moran, Miss Russell and Miss Bergin, suggested that the shop should open one night a week after the usual business hours. The idea was to facilitate people who could not manage to come to the shop during the ordinary hours of business, and, of course, to improve trade and increase the profits of the business. The staff had previously seen such customers out of business hours, whenever a suitable arrangement could be made, and it was also the object of the staff to “channel”these interviews into one night per week. Mr. Dunne agreed with the suggestion and the first late opening took place on the last Thursday in May, 1956. The practice continued after the incorporation of the Company.
Some of those engaged in the furniture trade in the City did not react favourably to the innovation and accordingly communicated their objection to the officials of the Irish Union of Distributive Workers and Clerks. As a result, on the 14th November, 1956, Mr. Fitzpatrick, as general secretary of the Union, wrote to the Company as follows:”
“I am directed by the executive committee of this Union to refer to the fact that your firm is opening until a late hour on each Thursday evening.
This decision on the part of your Company has given rise to persistent protest from our members in the furniture and carpet trade in the city, who claim that in departing from the recognised closing hours, you are obtaining an unfair advantage over your competitors, and are threatening the conditions of the workers in the trade.
In view of this re-action, the executive committee” who are anxious to avoid friction”have directed me to request that you will be agreeable to return to the normal closing hours, for the future.
Confirmation of this fact will be appreciated.”
Mr. Dunne replied on behalf of the Company, saying that it was not in competition with ordinary furniture retailers and they could not therefore be accused of unfair trading against non-existing competitors or of threatening the conditions of workers in the trade. The plaintiff Company did not comply with the Union’s demands. Mr. Fitzpatrick then sent an ultimatum stating that unless the practice of remaining open on Thursday evenings was discontinued arrangements would be made for the members of the Union to demonstrate to the public their opposition to the move.
Subsequently, members of the Union engaged in the furniture trade took part in these “parades” in the neighbourhood of the plaintiff Company’s premises on Thursday evenings. Those taking part in the parades carried banners with slogans printed thereon, such as “Support shops which open at 9 a.m. and close at 5.30 p.m.” “You can buy contemporary furniture in Trade Union shops”; “Trade Union shops open from 9 to 5.30”; “Contemporary furniture? Contemporary closing 5.30 p.m. !” The number of people taking part in these parades varied. On occasions they exceeded sixty in number and generally exceeded twenty persons. In the main these parades took place in the vicinity of the plaintiff Company’s premises in Dawson Street. The route chosen varied to some extent, but as a general rule passed the plaintiff’s premises at about ten or fifteen minute intervals. The focal point of the demonstrations was undoubtedly the plaintiff Company’s premises. These premises were the only furniture shop open in the street at the time the parades took place, and anyone in the vicinity who took any interest in the proceedings would have known that the demonstrations were directed against the Company and its employees. The procedure adopted was repeated every Thursday night, save one, from the 3rd January, 1957, until an interlocutory injunction was obtained restraining these activities in March last. The number of customers attending the plaintiff Company’s place of business decreased as a result of these parades but, when they ceased, business gradually improved again.
……
The parades or demonstrations which took place were” to use an expression the meaning of which is well known”a form of picketing, or, to be more technical, constituted a watching and besetting of the plaintiff Company’s premises, and what took place was illegal unless it can be justified in some way, as the defendants say it can, either under the provisions of the Constitution or the Trade Disputes Act, 1906. The defendants accept the position that the onus is on them to show that their conduct was so justified.
The defendants in the first place maintain that, entirely apart from the Trade Disputes Act, 1906, they were entitled to act as they did under the provisions of Article 40 of the Constitution. By clause 6 of that Article, the State guarantees liberty for the exercise of certain rights, subject to public order and morality, that is to say, the right of the citizens to express freely their convictions and opinions, to assemble peaceable and without arms and to form associations and unions. In construing the Article regard may be had to other provisions of the Constitution in order to discover its true meaning and effect. By clause 3, 1, of the same Article 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 citizens, and, by clause 3, 2, it is provided that the State shall by its laws protect as best it may from unjust attack, and, in case of injustice done, vindicate the life, person, good name and property rights of every citizen. Subject to it being regulated by the principles of social justice the right of private ownership is recognised by the State in the terms of Article 43. Article 50 provides that, subject to the Constitution and to the extent that they are not inconsistent therewith, the laws in force in Saorstát Éireann prior to the date of the coming into operation of the Constitution shall continue to be of full force and effect until repealed or amended by the Oireachtas.
The Articles of the Constitution to which I have referred seem to me to preserve amongst other rights those of the employer and worker respectively to deal with and dispose of their property and labour as they will without interference unless such interference be made legitimate by law. The right of the citizens to assemble peaceably and to express their opinions freely are guaranteed only subject to public order and morality. As I read Article 40 the rights guaranteed are guaranteed subject to the overriding proviso that in the exercise of such rights public order is not to be disturbed. If the rights guaranteed were to be exercised without regard to the preservation of public order chaos would ensue. It could not be contended, for example, that, because there is no exception made of slander in the Article relating to the free expression of the citizen’s opinions, a citizen can in the course of uttering his opinions slander another with impunity or that the right of assembly protects a citizen, who, in the course of the exercise of that right, provokes a breach of the peace. To my mind, if citizens in the course of an assembly commit a breach of the peace or some other breach of the law, they thereby disturb public order and their actions are not protected by the Constitution in respect of the breach of the law committed.
Prior to the coming into operation of the Constitution the picketing or watching and besetting of premises was unlawful unless justified by the Trade Disputes Act, 1906. The existing law continued in full force and effect to the extent that it was not inconsistent with the Constitution. I am unable to find that the law as it stood is in any way inconsistent with the terms of the Constitution, particularly having regard to the fact that the rights of the citizens relied on are to be exercised subject to the preservation of public order, which is scarcely preserved if a breach of law is committed. Since, as I have already stated, what the defendants did amounted to picketing, it follows that their actions were unlawful and not protected under the provisions of Article 40 of the Constitution, apart from the provisions of the Trade Disputes Act, 1906. It is open to the defendants, however, to justify the picketing of the plaintiff Company’s premises as being done in contemplation or furtherance of a trade dispute under the provisions of s. 2 of the Trade Disputes Act, 1906.
When the plaintiff Company and its employees failed to comply with the demands of the defendants’ Union, acting on behalf of its members, a dispute arose. It was suggested that the dispute in so far as it related to the Company’s employees was a bogus one, manufactured by the Union or its officials in order to set within the protection of the Trade Disputes Act, 1906, but I am satisfied that a section of the members of the Union engaged in the furniture trade genuinely regarded themselves as being aggrieved, not only by the actions of the plaintiff Company but also by the actions of its employees, in that they considered that their working conditions might be endangered thereby, and that the Union voiced their objections and acted at their request and on their behalf in what it did. It was also contended that the only dispute that existed when picketing commenced was with the Company as to trading times and that any dispute that existed with its staff came into existence later. That may be so, but in so far as relief is claimed by way of an injunction I must have regard to the position as it was when the proceedings were commenced by which time the dispute with the staff existed.
In order to obtain the protection of the Trade Disputes Act, 1906, the defendants must show that their actions were justified as being done in contemplation or furtherance of a trade dispute within the meaning of the Act and did not exceed what is permitted by the Act. The term, “trade dispute,” is defined in s. 5, sub-s. 3, of the Act and in so far as is relevant to these proceedings it means any dispute between employers and workmen or between workmen and workmen connected with the terms of employment or with the conditions of labour of any person. The expression,”workmen,” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises. The dispute relied on by the defendants was a dispute between the Union acting on behalf of its members, including the defendants, as workmen, on the one hand, and the plaintiff Company and its employees, on the other hand, they being employers and workmen, respectively within the meaning of the definition. A contest arises between the parties, however, as to whether, as the plaintiff Company says, the dispute was as to the hours of trading of the Company, or, as the defendants say, it had to do with the terms of employment or the conditions of labour of the plaintiff Company’s employees.
If the plaintiff Company’s contention is correct the defendants: must fail in their contentions having regard to the decision of the Supreme Court in the case of Esplanade Pharmacy Ltd. v. Larkin and Others (1). In that case the Esplanade Pharmacy Company opened its shop on Sundays at times other than those observed by similar business concerns. The company had only one employee and she did not attend on Sundays. It observed as far as she was concerned the terms of employment and conditions of labour as required by her contract of employment and as considered satisfactory by the Union. There was no complaint as regards her. The Supreme Court took the view that the dispute related to hours of trading and not to the terms of employment or conditions of labour of any person and accordingly that a trade dispute did not exist. The defendants, however, say that this case is distinguishable from the Esplanade Pharmacy Case (1) on the facts in that the present dispute is concerned with the presence of the plaintiff Company’s employees on its premises outside the usual hours observed in the trade by reason of a term in their contract of employment and that there is therefore an element in this case absent in the other.
The original complaint of the Union was, it seems to me, as to the plaintiff Company’s hours of trading and in so far as the ensuing dispute was connected with that complaint it cannot be regarded as a trade dispute having regard to the Supreme Court’s decision. At a later stage, however, the resolution enclosed in the letter of the 30th January, 1957, was passed, calling upon the staff of the plaintiff Company to refuse to work for the Company hours of work outside those generally recognised by the trade. The staff having failed to comply with that demand the defendants say that the dispute thus arising between workmen and workmen related to the terms of employment or conditions of labour of those persons who were in the plaintiff Company’s employment and that that dispute falls properly within the definition of a trade dispute contained in the Act.
Since the Legislature has made a distinction between the expressions, “terms of employment” and “conditions of labour,” by using both disjunctively in the section it would appear that it was intended that the words, “conditions of labour,” should mean something different or additional to the words, “the terms of employment.” Construing them in their ordinary prima facie meaning the words, “conditions of labour,” of a workman appear to have reference to the physical conditions under which a workman works, such as appertain to matters of safety and physical comfort. The”terms of employment” of a worker on the other hand appear to include all matters covered by the contract of employment, either express or implied, such as hours of work, wages, holidays and overtime. Since the physical conditions under which the plaintiff Company’s staff work are not in question, the dispute, if it is to come within the definition in the Act must relate to some term of the employment, that is to say, it must relate to the contract between the parties.
The arrangements with regard to the late opening on Thursday were come to prior to the formation of the Company and while Mr. Dunne was trading as a private individual. A new contract between the Company and its employees came into existence on the formation of the Company, but it is to be implied from the circumstances that the new contract was in the same terms as that previously existing between Mr. Dunne and his employees, so that any already existing terms of the contract were carried over, and the case proceeded on that basis. No dispute exists as to any terms of the contract between the Company and its employees other than such as may exist in regard to the late opening. The question is, did such arrangements as were made with regard to the late opening of the premises result in any alteration in the contractual relations made between Mr. Dunne and his employees, which was later embodied in the contract between the Company and its employees, or were the arrangements made merely of an informal nature with no binding effect. Unless the arrangements were of a contractual nature they cannot relate to the terms of employment of the employees and thus cannot be made the subject of a trade dispute.
The law deals with bargains and does not concern itself to enforce a promise not intended to have a binding legal effect. It is therefore necessary to examine the arrangements made both as to their form and effect and the intention of the parties. The exact nature and form of the arrangements come to may not be easy to state, a fact which the plaintiff Company may say militates against the proposition that a contract was intended and made, but the nature of arrangements made between persons in friendly relationship are all too often difficult to ascertain precisely, even when they intend to be bound contractually.
It is of importance to note that the idea of opening the plaintiff Company’s premises originated with the employees. Both Company and staff stood to benefit by the increased trading that might be expected to result. The Company stood to gain by attracting more customers and thus increasing its profits and the staff would also gain by reason of the fact that their bonus on profits would increase likewise. The arrangement, of course, required Mr. Dunne’s consent as owner and later as managing director; the employees would not be entitled under their existing terms of employment to be present on the premises other than at their usual working hours.
The members of the staff by reason of the nature of their request indicated their willingness to attend at the shop on the occasion of the late openings. It would only be on that basis that Mr. Dunne could have entertained the proposition. It is urged that the attendance of the staff was voluntary. It was, however, stated in evidence that if a member of the staff was absent on a Thursday evening he or she would arrange for another member of the staff to attend to do what was necessary on his or her behalf. It is thus, I think, only true to say that the attendance of the staff was voluntary to this extent, that it was understood that it would not be a breach of the agreement between employer and employee entitling the employer to take disciplinary action if an employee was on some occasion absent.
…….
The Trade Disputes Act, 1906, entitles a person acting on behalf of himself or of a trade union in furtherance of a trade dispute to attend at or near a place where a person works or carries on business “if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.” The Act thus permits a person to do something otherwise unlawful, when done in the furtherance of a trade dispute, and on the face of it only permits them so to act for the specified purposes and in the stated fashion.
The right to picket is a powerful weapon. There can be few who do not view the prospect of being picketed without grave disquiet. Just as trade unionists would claim that this hard-won right ought not to be unreasonably curtailed, as likewise the rights of the public and those who may be affected by the exercise of the right must be considered. The exercise of the right must not be allowed to exceed what the law permits.
The right conferred by the Act is confined to attending at a person’s premises merely for the purpose of peacefully obtaining or conveying information or peacefully persuading any person to work or abstain from working. The use of menaces, threats or the use of force are clearly not permissible
I am quite satisfied that threats and menaces were not used and that those taking part in the parades observed an orderly demeanour. But it seems to me that picketing is not lawful also if the methods adopted are such as to overawe those who happen to be on the premises being picketed or the members of the public who might be minded to have business dealings with them, to the extent that people of ordinary nerve and courage may be prevented from doing what they have a lawful right to do. The method of picketing must be reasonable having regard to all the circumstances. It would not be justifiable I feel to place a picket consisting of a hundred or so persons on a small suburban business premises with one or two of a staff. On the other hand, it might be quite reasonable to place several quite large pickets on a large factory with several entrances. It is a matter of degree according to the circumstances, and the number of the picket should bear reasonable relations to the nature of the premises and the number of persons with whom the dispute arises. No one stated that they had been frightened by the pickets, but I accept the evidence that the plaintiff Company’s business fell off while the picketing was in progress and I must have regard to the result that might reasonably be expected to follow from the method of picketing adopted. In my view the pickets that attended at the plaintiffs’ premises were on several occasions unduly large and by reason of their numbers would be calculated to frighten and overawe those picketed and members of the general public wishing to do business with them. The picketing on such occasions could not therefore be said to have been merely for the purpose of peacefully obtaining or communicating information.
Some of the placards carried by the pickets have been objected to on the grounds that they suggested to the public that they should do business with other, presumably rival, firms. Placards containing the words, “Support shops which close at 5.30” and “You can buy contemporary furniture in Trade Union shops,” fall within that category. It may be that the words, “merely for the purpose of peacefully obtaining or communicating information,” do not mean that the members of a picket are to be confined to doing what is authorised by the section in the sense that they may not do what is otherwise lawful as well. Lord Justice Vaughan Williams in J. Lyons and Sons v. Wilkins (1),dealing with s. 7 of the Conspiracy, and Protection of Property Act, 1875, permitting attending at a person’s place of business in order merely to obtain or communicate information said, at p. 274:” “I think that the fact that the communication invites the men to discontinue working for the master as soon as they lawfully may does not thereby cause the communication to cease to be a communication within the meaning of the proviso.” Such an invitation would seem to be somewhat outside the mere communication of information but its legality hag this high authority to support it. Another view of the meaning of the section, namely, that the Legislature intended, when permitting picketing, to confine the activities of those taking part in pickets to the specified activities does, however, seem to be supported by the wording of the section. It may be urged reasonably that when the Legislature saw fit to change the law in such fashion that people might thereafter be lawfully subjected to picketing in certain circumstances, it intended also to restrict its exercise to the purposes specified in the section. However, in so far as this Court is concerned the plaintiff Company say that the matter is concluded by the decision of Johnston J. in Ryan v. Cooke and Quinn (1). The learned Judge, having held that no trade dispute existed which would justify the placing of a picket on the plaintiff’s premises, said (at p. 522) in the course of his judgment:””But the placing of this picket upon Mrs. Ryan’s premises was unlawful in other respects. I may mention one or two.” He then referred to the fact that under the Act the work of the picket must be done peacefully and expressed his view that the dissemination of a falsehood could not be described as a “peaceful” way of communicating information. “Furthermore,” he proceeds”the trade union had no right in the course of carrying out a picketing of a business firm to recommend the public to go to a rival shop. Sect. 2 of the Act does not suggest any such procedure.” The members of the pickets in this case invited the public to support other concerns and the words used by Johnston J. cover this case. Mr. Costello says that the learned Judge’s words were mere obiter. I cannot regard them as such. It is true that Johnston J. had already decided that no trade dispute existed which would justify the picketing that had taken place and might have chosen not to go further; but he also decided that the picketing was unlawful in other respects, which might equally well have formed the sole basis of his decision. When a Judge states twa reasons for his decision the fact that one precedes or follows the other does not alter the fact that both reasons are part of his ratio decidendi. The decision was not challenged for any reason, such as being given per incuriam, which would entitle me to disregard it. Accordingly I take the view that I should follow the decision. In the result I am constrained to hold that the pickets were not entitled to recommend the public to support other firms in the course of their picketing operations.
The plaintiffs therefore succeed to this extent that there will be an injunction restraining the defendants from picketing the plaintiff’ Company’s premises along with unreasonable numbers of people and from recommending the public to support other business concerns in the course of their picketing.
The plaintiffs’ rights have been infringed by the method of picketing adopted. The overt acts proved lead to the natural conclusion that there was an unlawful agreement and combination to perform them amounting to conspiracy in law. I have before me the evidence that the plaintiff Company’s business fell off during the picketing and recovered later. Some damage has therefore been sustained. The plaintiffs’ counsel, very properly in the circumstances of the case, stated, however, that the real object of the proceedings was to obtain an injunction and that the expense of an inquiry as to damages would not be justified. To assert the right infringed I will measure the damages at the nominal figure of £10, observing that the substantial relief which the plaintiffs are entitled to is the injunction.”
Ferguson v. O’Gorman and Others.
[1937] I.R. 620
Johnston J.
“The controversy in this case raises an interesting and novel point. The action is brought by a Company carrying on the business of hairdressers in Winthrop Street, Cork, for an injunction to restrain certain persons who are hairdressers and members of a Trades Union from picketing the Company’s premises by walking up and down in the street in front of their shop.
There are two questions to be decided in the action.
First, it is questioned by the plaintiffs whether a trade dispute exists at all or not. The premises and business were formerly owned by James Erwin and Arthur Stanmore and were acquired by the plaintiffs under an agreement to purchase them, dated the 15th September, 1934.
It is alleged that when the premises were in the possession of the previous owners, there was a trade dispute between them and their employees. The plaintiffs say that they never were involved in that dispute, and that they must be ultimately successful in the action seeing that there is no trade dispute in existence such as would render peaceful picketing lawful under the Trade Disputes Act of 1906.
The question cannot be decided on the present motion. In regard to it there is a large body of conflicting evidence before the Court; but (as Mr. Gavan Duffy admits) it is a question of fact and could not possibly be opened, or at any rate could not possibly be decided, on an interlocutory proceeding such as this motion is.
The second question is raised by paragraph 2 of the indorsement of claim as follows:
The plaintiffs claim “a declaration that the user of the said highway for the purposes of picketing or for any purpose other than the lawful user of the said highway for the purpose of passing and re-passing thereon and thereover is a trespass.”It is alleged by the plaintiffs that the portion of Winthrop Street which lies opposite their premises is their property up to the middle line, and that any person who uses that portion of the street for any purpose other than the lawful purpose of passing and repassing is a trespasser, and that the defendants are not using it for lawful purposes and are trespassers.
Any decision of mine on this point, on a motion such as the present, could not be regarded as working an estoppel against the defendants on the trial of the action. Any decision that I may give on this motion, so far as that point is concerned, can only be regarded as an opinion as to the soundness of the point as a matter of law, and in my opinion the point is not sound as a proposition of law.
The effect of the Act of 1906 was to legalise peaceful picketing. No doubt it was decided in the case of Larkin v. Belfast Harbour Commissioners (1) that the Trade Disputes Act, 1906, does not confer a right to carry on picketing on private property against the will of the owner. The case arose in respect of one of the quays in Belfast which was the property of the respondents in that proceeding.
This, however, is a different case. Here persons are carrying on picketing in a public street. The presumption no doubt exists that an owner of property bordering a street owns also the soil of the roadway or street opposite to his premises up to the middle line. That, however, is only a presumption, and it may be rebutted by evidence. In the present case the defendants may be able to show that the presumption does not apply. But even if it does apply in this case, can it be said that the nature of a frontager’s ownership of the portion of the public street which is opposite to his premisesan ownership of a very special character and subject to many limitations (mainly statutory) enables him to prevent peaceful picketing to go on in the street opposite his premises? I do not think that it can.
The section of the Trade Disputes Act which applies (sect. 2) provides as follows:
“It shall be lawful . . . . to attend at or near a house or place where a person resides or works or carried on business . . . .”
In the Belfast Case (1) Lord O’Brien said: “The controversy in this case, is no more or less than this, what does the word ‘at’ in the second section of the Trade Disputes Act of 1906 mean? Does the word ‘at’ in that section include the word ‘in’?” and he then decided that it did not.
I do not think, however, that Larkin’s Case (1) has any bearing on the present case. In that case a by-law had been made prohibiting any person addressing a public meeting on a certain quay, which was the property of the Belfast Harbour Commissioners, without permission. Mr. Larkin did address a public meeting without having obtained the necessary permission. It was proved that he had been warned against doing so, and the Court considered that in view of the by-law he had no right to be there. The present case is very different. The defendants “attended” on the public street “at or near” a “house or place” and they proceeded to carry out the picketing which the statutory law had legalised.
It seems to me that if I adopt the construction of the section which is placed before me by the plaintiffs I will, in effect, be repealing the Act. It was decided in the Belfast Case (1) that picketing cannot take place on the premises of the employers. I think equally that it cannot take place on premises which are the private property of an outsider that is, on premises which are the private property of a person other than the employer. Where, then, can the peaceful picketing take place, which the statutory law has permitted, if not on the public street “at or near” the “house or place” where the employer carries on his business? I can find no answer to that question which would enable the plaintiff to succeed. The motion therefore must be dismissed. I reserve the question of costs.”
Meredith J.
“ This case raises the important and difficult question of whether what is known as “peaceful picketing” can be restrained as a trespass against the rights of the owner of the soil of a public highway. It also raises an interesting question, as to which I do not think there is much difficulty, namely, as to how far, on the sale of a business as a going concern, an existing trade dispute is passed on to the purchasers with the goodwill of the business.
The plaintiffs are a limited liability Company and the principal object for which they were incorporated was to acquire and take over as a “going concern” the business of hairdressers carried on under the name of “L. L. Ferguson” at 3 Winthrop Street and elsewhere in the city of Cork and all the property and assets of the proprietors of that business used in connection therewith, and with a view thereto to enter into the agreement for the purchase thereof referred to in the Memorandum of Association. The agreement referred to was an agreement between James W. Erwin and Arthur Stanmore to sell the business and premises and the goodwill thereof to the Company”as a going concern.” The agreement was dated the 15th September, 1934, and the sale was completed on the 18th March, 1935.
Part of the property transferred on the sale consisted of the premises No. 3 Winthrop Street, held under a lease, dated 16th September, 1867, for a term of ninety-six years from the 29th September, 1856. The plaintiffs were incorporated on the 14th September, 1934, and on that day, the day preceding the agreement for the sale, by agreement with the vendors, they entered into possession and occupation of No. 3 Winthrop Street, and, after a short delay caused by the closing of the premises for decorative work, continued to carry on the hairdressing business there.
The new Company took on most of the old staff, but several, including a Mr. Busby, who had been dismissed, did not apply for employment by the plaintiffs. This omission to apply was clearly due to the dismissal of Mr. Busby and other matters connected with employment by the old firm and also to what were understood to be the conditions of employment by the Company. These old employees who were not taken on are the defendants other than Thomas O’Gorman, who is a representative of the local trades union. The defendants then started picketing the premises, and in respect of that picketing the plaintiffs say they have a cause of action on two grounds. The first is that the acts of the defendants constituted a trespass, the plaintiffs being, as they allege, the owners of the soil of the highway, i.e., Winthrop Street, ad medium filum viae,and the defendants’ picketing not being a reasonable and proper user of the highway. The second ground is one of conspiracy to interfere with the plaintiffs in the conduct of their business. In respect of each of these complaints the plaintiffs seek an injunction.
As regards the trespass I have already held, in the judgment which I delivered in this action on the 24th July last, that sect. 2 of the Trade Disputes Act, 1906, does not preclude a plaintiff, who is the owner of land, from showing that acts which are within the section, and in themselves lawful, are in a particular case an infringement of his rights as such owner, and therefore a trespass. The section does not contain a statuory licence to commit a trespass. It does not say that for the purpose of doing the acts made lawful the persons in question may enter upon any lands “at or near such house or place of business where a person resides or works or carries on business or happens to be.” The right of entry on the lands is an entirely different question. They might in fact belong to someone else. Consequently, I entirely agree with the contention of the plaintiffs that the question of trespass on the soil of the highway, of which the plaintiffs claim to be owners ad medium filum viae, is quite open. But I did not hold on the preliminary question already determined, and am far from thinking, that, when the question of whether in fact a trespass has been committed comes to be considered, the enactment of the Trade Disputes Act, 1906, has no bearing whatever on the question of what is a reasonable user of the highway and whether particular acts covered by the section can be regarded as within the scope of the fictitious dedication of the highway.
The growth of legislation responds to and expresses the development of civilization, and such development must be regarded as within the purview of the dedication. Hence the “reasonable extensions” of which Collins L.J. speaks in Hickman v. Maisey (1). The acts contemplated by sect. 2 are almost always acts performed on a public highway, and, consequently, the section seems to me almost a statutory recognition that the acts described are not necessarily a trespass, and that the reasonable user of the highway includes user by acts of the kind described in the section. But it is not sufficient to say that the acts in question are within the section, and, therefore, not a trespass. For, while they may be performed in such a way as not to be unreasonable, they may easily be performed in such a way as to be unreasonable and thus to infringe the rights of the owner of the soil. The mode of user must also keep in view the primary or fundamental right of the public, which is one of passing and repassing on the highway, and it can never be less than a secondary or subsidiary incident to that right. In peaceful picketing, as we know it, the effort to effect compliance with this requirement may seem somewhat farcical. But peaceful picketing has been going on ever since the Act of 1906 and for a good while before, and it would seem rather late in the day to discover that, no matter how it is conducted, it is a trespass on the rights of the owner of the soil. It is a form of traffic on the highway, concentrated on a limited portion for the purpose of conveying information to persons who are unquestionably using the highway in the normal manner, and it is coincident with their user for the purpose of reaching particular premises. The ownership of the soil can hardly put these persons who are visiting the particular premises out of reach or make a protected area.
In the present case the picket formed by the defendants consisted generally of from 4 to 6 persons, who paraded up and down in front of the plaintiffs’ premises. As the frontage of these premises is only about 20 feet the picket would merely take a few steps forward, then turn and go back a few steps. This monotonous procedure they continued during all business hours, calling out at intervals:”Strike on here; strike still on.” It is proved that they uttered these words in unison. There was conflicting evidence as to the loudness of their voices. While I have no doubt that they made quite sure of being heard some of the evidence produced on behalf of the plaintiffs appears to have been exaggerated. I entirely accept the evidence of the Garda, and in the account which they gave I can fix on nothing that would clearly distinguish the picketing in this case from some other kind of attendance at or near the premises in question for the purpose of peacefully obtaining or communicating information, or of peacefully persuading persons to work or abstain from working, so as to be able to say that this is a particular form of picketing that amounts to an abuse of the public right of user of the highway and a trespass, whereas some other form would not be a trespass.
During the hearing of part of the evidence for the plaintiffs I thought it might be open to hold that there was a mono-polising of the frontage by the picket and that it might be distinguished on that ground. But on hearing the whole of the evidence I came to the conclusion that such a monopolising was not proved. In order to make the acts of a picket which does no more than was done in this case, an unreasonable user of the highway and consequently a trespass, it would seem to me to be necessary to import into the acts some conception founded on a general hostile attitude towards all forms of picketing, and that does not seem to me to be allowable having regard to the provisions of the Trade Disputes Act, 1906.
Similar observations apply to the allegation in par. 17 of the statement of claim that the action of the picket constituted a nuisance.
But, as I have indicated, the question of trespass, as well as of any other possible infringements of private rights, is still open, and it may be the duty of the Court to define the limits more precisely when a proper case for intervention arises.
I come now to the claim in respect of conspiracy. The common law on this subject is fundamentally explained by the fact that the free exercise by persons of their rights may impede or prevent the free exercise by others of equal rights. To a certain extent this interference is inevitable and its consequences have to be accepted, but the law has recognised that in the case of concerted action the burden may become intolerable, and so has intervened when the interference itself is the motive of the concerted action. That is the gist of the common law action for conspiracy. It is upon this common law doctrine as applicable to cases not within the Trade Disputes Act, 1906, that the plaintiffs rely. They contend that in the present case there was not a trade dispute within the meaning of the Act, and consequently their counsel stressed the statements of the law in Sorrellv. Smith (1), in which case the dispute was one between trader and trader and so not within the Act, and the law as stated in J. Lyons & Sons v. Wilkins (2), and in Quinn v.Leathem (3), both of which were cases before the Act.
I must hold, however, that the acts of the defendants complained of were acts done in furtherance of a trade dispute. The contention of the plaintiffs is twofold. First of all they say that there was no existing dispute at all, and that the only dispute there ever was was one with the former proprietors.
……… For the purpose of the Trade Disputes Act it is not necessary to go into the merits of the dispute. The proposition put forward on behalf of the plaintiffs was most disputable, and was disputed, and it seems to me only to have widened and deepened the existing dispute that was mainly concerned with the dismissal of a Mr. Busby, but had also to do with other matters affecting conditions of employment and characteristic of a trade union dispute. The Distributive Workers Union in fact expressed willingness to submit the matters in dispute to arbitration. The plaintiffs further contend that if the alleged dispute was a dispute at all it was not a trade dispute because it was not one between the plaintiffs and their own workmen. The wording of the definition in sect. 5 is very wide and there is nothing in it to suggest the limitations for which plaintiffs’ counsel contend: Dallimore v. Williams (1).A workman does not cease to be a workman because he has been dismissed and is out of employment or has been forced to take up other work. Mr. Busby was obliged to start business in a small way for himself, and some of the other employees in the old business who were not taken on by the plaintiffs have obtained some other work, but the union is still fighting their cause. If Mr. Busby alone was concerned, and if he had abandoned the character of workman desiring employment as such, and there was only rivalry between the plaintiffs’ hairdressing establishment and “Maison Boni,” the establishment set up by Mr. Busby, then the plaintiffs could contend that there was no more a trade dispute than in the case of Sorrell v. Smith (2). But the whole history of the dispute makes it clear that, if the matters in dispute, including the far-reaching question whether a company taking over an existing business as a”going concern” must be regarded as starting, so to speak, with a clean slate, had been submitted to arbitration, they would all have been such as are characteristic of trade disputes, and that, if the defendants’ demands had been met, the picketing would have stoppedand that is the test, not whether the demands and contentions were reasonable or not.
For these reasons I must hold that the plaintiffs’ action is unsustainable and must be dismissed with costs.”
Ryan v. Cooke and Quinn
[1938] I.R. 518
Johnston J.
“The plaintiff alleges that this picketing is not a legal or permissible one within the meaning of the Trade Disputes Act, 1906, that there is no justification for it whatever, and that it has seriously damaged her trade and impeded her business.
I had occasion quite recently in the case of Ferguson v. O’Gorman (1) to take into consideration the provisions of the Act of 1906, and I decided that the picketing of shop premises in the city of Cork was not unlawful merely by reason of the fact that it took place in a public street upon which the shop in question abutted. That decision was upheld by the Supreme Court.
“In my opinion no trade dispute existed which would have justified the trade union in placing a picket on Mrs. Ryan’s premises in Henry Street, and the reliance of the defendants upon the provisions of the Trade Disputes Act is of no avail. A trade union cannot create a trade dispute simply by declaring that a trade dispute exists, thereby giving themselves the right to adopt “the drastic action” (as they themselves call it) of putting a picket on any business premises that their eyes alight upon.
But the placing of this picket upon Mrs. Ryan’s premises was unlawful in other respects. I may mention one or two. The Act of 1906 provides that the work of the picket must be done “peacefully.” Now, it is admitted that in this case the persons picketing carried banners or posters which set out in glaring type this announcement: “This firm refuses to employ trade union labour. Support fair traders.” This was a falsehood of a most dangerous type. Mrs. Ryan had never, by act or word, refused to employ trade union labour and it cannot be described as a “peaceful” way of “communicating information” to disseminate a falsehood. Furthermore, the trade union had no right in the course of carrying out a picketing of a business firm to recommend the public to go to a rival shop. Sect. 2 of the Act does not suggest any such procedure. On another placard the falsehood was repeated:”Trade disputeMonument Creamery refuses to employ trade union labour.” This was even more dangerous than the first poster, because it suggested, in designedly ambiguous language, that a dispute existed in the Monument Creamery between the firm and its workers and that the firm had dismissed employees who were trade unionists. That is the construction which the ordinary passer-by in this busy street would hastily put upon the announcement, and the result of course would be very injurious to the plaintiff. The public would of course not know that the most perfect relationship existed between the Monument Creamery and the entire staff, that no dismissals had taken place, and that the conditions of employment were most favourable and acceptable to the staff.
I may say also that I am not entirely satisfied with the evidence of the defendants, who stated that they gave no verbal information to the public, but merely pointed, in dumb sorrow, I suppose, to the placards. If that matter were more fully investigated I am afraid that it would scarcely be borne out by the facts. I doubt also if the choice of Henry Street, the most congested street in Dublin, rather than Lower Camden Street, where the headquarters of the firm are situated, was entirely innocent.
This case depends almost entirely upon the facts that have been proved as applicable to the provisions of the Act of 1906, and the cases that have been cited are not of much importance. In the case of Ward, Lock & Co., Ltd.,v. Operative Printers’ Assistants’ Society (1), no question of law is decided, and the same may be said of Dallimore v.Williams and Jesson (2). The Court of Appeal simply said that there was no evidence to support certain findings of a jury, and a new trial was directed. The matter involved in these two cases is more clearly brought out in the short reports which are to be found in the 57th volume of the Solicitors’ Journal at p. 77, and in the 58th volume at p. 470, respectively.
The case from which I have got most assistance is that of Conway v. Wade (3), in which the House of Lords discussed whether or not a trade dispute had been proved under the particular circumstances in that case, and certain principles were laid down by the members of the House who heard the case which are of the highest importance. Lord Loreburn L.C., in regard to the existence or nonexistence of a trade dispute said (at p. 510) that “a mere personal quarrel or a grumbling or an agitation will not suffice. It must be something fairly definite and of real substance.” “If the Act [of 1906] is to be interpreted or applied,” he added, “in the view that stirring up strife is the aim and object of any part of it, then indeed it will be a foundation of bitter waters.” Lord Atkinson (at p. 517) said:”In order that a dispute may be a trade dispute at all, a workman must be a party to it on each side, or a workman on one side and an employer on the other, and an act done in furtherance of a dispute is not protected unless the dispute be one of that character. It is help, assistance, or encouragement to such a dispute that the Legislature apparently had in view when it used the words ‘in furtherance.’ Must it not, when it uses, in juxtaposition with these words, the words’ in contemplation,’ be held to have had in view a dispute which must, at the time the act it designed to protect was done, have been, at all events, ‘thought of’ by some person who should be a party to it when it arose, if it was to be a trade dispute within the meaning of the Act? Otherwise an intruder, such as Wade, would be shielded from liability simply because of his own mental outlook, however peculiar that outlook might be, and however unknown to, or unshared in by, others.” At At p. 518 Lord Atkinson said further:”It is impossible to suppose, I think, that the Legislature ever intended that where perfect peace prevailed in any factory or establishment, and an intruder, a mere mischief-maker, actuated by greed, or some feeling of revenge, interfered, and by threats and molestation stirred up strife and disputes which neither employer nor workmen theretofore thought of, he should be made irresponsible because of the very mischief he intended and hoped to stir up.”
This case was applied by the Irish Courts in the case of Barton v. Harten (1).
Struck by the difficulties that I have been pointing out, counsel for the defendants then put into the witness-box a number of young men, all trade unionists, who gave evidence to the effect that they “objected” to the conditions which, according to them, prevailed in the plaintiff’s premises; but these persons did not suggest that they ever had any dispute with any one, or that they or any one else ever took part in any dispute. Their evidence in my opinion amounts to no more than an expression of their”mental outlook” which, as Lord Atkinson points out, would not have shielded them from liability if they had taken part in this picketing.
I may say that I am in entire agreement with Mr. Kelly as to the principles of trade unionism and as to the necessity for the continued existence of trade unions; but there is not a word in the evidence which suggests that Mrs. Ryan is not equally in accord with those principles, or that she does not thoroughly believe in the continued existence of trade unions.
For the reasons that I have stated I am of opinion that the provisions of the Trade Disputes Act, 1906, afford no protection to the defendants for what they did. Their conduct was wrongful, whether it is viewed from the point of view of conspiracy or of nuisance. Nothing could have been more damaging than the picketing of premises in a congested thoroughfare like Henry Street, with the display of placards upon which a false announcement to the public was made, coupled with the presence of the police, who would give a sort of official sanction to the picketing in the eyes of some people and a sort of suggestion of a row in the eyes of others. The mental intelligence and the moral stamina of the people who frequent Henry Street in such crowds are of very varying quality, and probably the majority of the passers-by would not be in a very discriminating mood. I rather fancy, too, that Mrs. Ryan, in the evidence that she gave as to the effect of the unlawful conduct of the defendants upon her business, minimised rather than exaggerated the loss that she had incurred.
There must therefore be an injunction in the terms of the statement of claim, with costs, including the costs of the motion.”
Malincross Limited v Building and Allied Trades Union
v Neville Farrelly v Eddie Traynor v Jonathan Campbell and v Patrick Loy (defendants)
2001 No. 16252P
High Court
30 November 2001
[2002] 13 E.L.R. 78
(McCracken J)
delivered his judgement on November 30 saying: This is an application for an interlocutory injunction to restrain picketing by the defendants at a building site at Naul Road, Balbriggan, Co. Dublin. The background to this application is somewhat unusual.
A company known as Crescent Park Properties Limited is the freehold owner of the lands at Naul Road and by a licence agreement of July 3, 2000 granted a licence to the plaintiff to develop and build an estate of 135 houses on the said lands. By a sub-contract dated July 5, 2000 the plaintiff entered into a contract with BP O’Sullivan (Leinster) Ltd. (hereinafter called ‘the employer’) whereby the employer agreed to build the said 135 houses using its own labour force. The employees of the employer, including the fifth named defendant, were all members of the Building and Allied Trades Union (hereinafter called ‘the union’) and at some time in early August 2001 the employer dismissed the fifth named defendant, which dismissal gave rise to a dispute between the union and its members and the employer. In furtherance of this dispute the union and *80 its members, including the second, third, fourth and fifth named defendants, commenced to picket the site. Proceedings were taken by the employer against the union and certain of its employees to restrain the picketing, and by order of my colleague O’Donovan J made on September 26, 2001 an injunction was granted restraining the defendants in those proceedings from inciting, processing, assisting, encouraging or organising members of the union or others to congregate or assemble at or near the entrance to the site otherwise than for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working and otherwise than in numbers not exceeding six. It should be noted that the order specifically referred to ‘The plaintiffs premises at Westbrook, The Naul Road, Balbriggan’, that is, the employers’ premises. The pickets continued, and there is no suggestion that they did not comply with the terms of the order of O’Donovan J.
There appears to have been some communication between the union and the Construction Industry Federation on behalf of the employer, but the dispute still remains unresolved.
By letter dated October 23, 2001 the plaintiff wrote to the employer stating that it was imperative that the site should reopen in full production by October 31, and when it became clear this was not going to happen, the plaintiff wrote again to the employer on October 26 calling on it to vacate the site on October 30 and remove all its plant and equipment, and that the sub-contract was thereby terminated. Following this letter, the employer apparently removed all its plant and equipment other than a fork lift truck, which was left on the site, and which was subsequently used by the plaintiff. After October 30, although the employer had vacated the site, two directors of the employer, one of whom was a quantity surveyor, attended from time to time at the site to measure the amount of work already carried out by the employer, for which it was agreed the employer would be paid. These attendances continued up to November 22 when agreement was reached on a final account between the plaintiff and the employer, and there will therefore be no need for any further attendances on behalf of the employer at the site. In addition, the plaintiff purchased the said fork lift truck from the employer, and I have no doubt that there is now no work being carried on at the site by or on behalf of the employer or any of its employees. Notwithstanding this, the union and its members have continued to picket the site.
Mr Kerr, on behalf of the defendants, has made it quite clear that his clients are not relying on the provisions of section 11 (2) of the Industrial Relations Act 1990, and are not seeking protection from the court for secondary picketing. The defendants do, however, seek to justify their right to picket on three grounds which I propose to consider individually.
*81
Construction of section 11(a)
This section provides that it is lawful in contemplation or furtherance of a trade dispute to attend at ‘a place where their employer works or carries on business’. While the defendants accept that the employer no longer works or carries on business at the site, they say that on the proper construction of this phrase, they are entitled to picket at any place they work or carried on work in the past. While to my mind, this is a very strained construction of the present tense used in the section, Mr Kerr referred me to the Dáil debates which disclose that an amendment was moved to add the words ‘or, at the commencement of the dispute, had normally worked or had normally carried on business’. This amendment was withdrawn following a statement by the then Minister for Labour that that situation was already covered by the wording used, which the Minister called ‘The historic present tense’. While I do not think that the views of the Minister in a Dáil debate should determine the construction of this section, nevertheless I think I can have regard to it in determining whether, at the hearing of this action, there is a fair question to be tried, as to the construction of the section. However, I have no doubt that the hearing of an interlocutory injunction is not the time to enter into a detailed discussion on grammar. I am satisfied, however, that there is a fair case to be tried as to the construction of section 11(1).
Section 19(2)
The defendants argue that the court cannot grant an interlocutory injunction because of the provisions of this subsection which reads:
Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.
I am satisfied that the union in the present case held a secret ballot in accordance with its rules, and that those rules were as provided for in section 14 of the Act, and I am also satisfied that the union gave notice of not less than one week to the employer of its intention to take industrial action. I am also satisfied that the union has established a fair case that it was, and I would emphasise that the subsection uses the past tense, acting in contemplation or furtherance of a trade dispute, as there was clearly a trade dispute in existence at the time the ballot was held.
*82
The problem for the defendants exists by reason of the wording of the proposal which was balloted on. The ballot paper read:
SUBJECT — to engage in industrial action with BP O’Sullivan (Leinster) Ltd., including the placing of pickets on company site at Naul Road, Balbriggan.
The ballot paper then contained boxes headed ‘In Favour’ and ‘Against’. There is no doubt that this authorised the original picketing, as it would be quite clearly understood by all members that the site in Balbriggan was what was referred to as ‘the company site’, as it was the site where the employer was carrying on business. The question remains whether this ballot authorised the placing of pickets at the site when it ceased to be the company site of the employer. The extent to which the proposals in the ballot had to identify the nature of the industrial action under section 19(2) was considered by the Supreme Court in G & T Crampton Ltd v. Building & Allied Trades Union & Ors [1998] 1 ILRM 430. In that case the ballot had simply been ‘on proposal to engage in strike or other industrial action’ without specifying the nature of the strike or industrial action at all. In dealing with this issue it is stated at page 437:
I am satisfied that the Affidavits disclosed a fair question to be tried on a question as to whether or not the provisions of section 11(1) applied to the defendants in the proceedings and also that a number of questions stand to be determined with regard to the interpretation of the provisions of section 14 and section 19 of the Industrial Relations Act and the questions to be raised there as to whether or not in the conduct of a ballot a union should be required to particularise the nature of the industrial action for which they seek support of their members and that the proposal being put before those members should particularise such action and (I am expressing no concluded view on it), whether it is not sufficient to comply with the requirements of such act merely to have a ballot favouring a strike or other industrial action without particularising the nature of the industrial action to be taken by the union and for which they seek their members approval. This is a serious issue to be tried in this case because undoubtedly from an examination of the ballot papers, first of all, no actual proposal was placed before the members and even if it were interpreted that the heading ‘Ballot on proposal to engage in strike or other industrial action’ was held to be a sufficient proposal, the question arises again as to whether it is in compliance with the provisions of section 14 and section 19 of the Act.
He then concluded:
That being so I am satisfied that there are two issues to be tried in this case that have been raised by the plaintiff in these proceedings and I am satisfied that there is a fundamental issue with regard to the interpretation of sections 14 and 19 of the Act and that the learned trial judge was entitled to come to the conclu *83 sion that the condition precedent to the implementation of section 19 was not established.
Unfortunately, this case never proceeded to a full hearing, and therefore these matters were not determined, but in my view the issues which arise in the present case are almost identical to those that arose in the G & T Crampton case. The sufficiency of the secret ballot is clearly a condition precedent to the right of the defendants to resist an interlocutory injunction under section 19(2). While the members of the union clearly authorised strike action at the employers’ premises, and therefore direct strike action against the employer, I think there is a serious issue as to whether that in itself is sufficient to justify strike action in relation to what were once the employers’ premises but no longer remain so., The purpose of the Act would appear to be to ensure that, if the union is entitled to the protection of section 19(2), then it must have the clear support of its members. I think there is a serious issue to tried, but no more as to whether the picketing of the plaintiff’s premises once the defendant has left those premises is authorised by the ballot, and until that question has been determined, in my view the condition precedent to section 19(2) has not been established by the defendants.
Transfer of undertaking
The defendants also contend that, even if the employer has ceased to have any function in relation to the site, nevertheless there has been a transfer of undertaking from the employer to the plaintiff within the meaning of the Directive 77/187 as amended by Directive 98/50. This is a very complex matter which would require a great deal more evidence than is before me, and in any event in my view is not a matter to be determined on an interlocutory application. The whole relationship between the employer and the plaintiff would have to be investigated in detail, both in relation to the formation of the original contract and in relation to its termination. It is possibly an arguable point that both were successfully pursuing the same economic activity, namely the development of a housing estate on the site, but it is undoubtedly a matter for the ultimate hearing of the action.
Accordingly, as I have determined that there is a bona fide dispute as to whether the preconditions of section 19(2) have been complied with, the defendant is not entitled to rely upon the subsection (2) to prevent the grant of an interlocutory injunction. In those circumstances, I then have to apply the ordinary principles as laid down by the Supreme Court in Campus Oil Ltd v. Minister for Industry and Energy [1983] IR 88.
If I refuse an injunction and it is ultimately held that the plaintiff was ultimately to succeed, I am quite satisfied that the plaintiff would suffer irreparable loss and damage. The plaintiff has entered into contracts with purchasers of *84 28 different houses, and would be unable to complete those contracts. Quite apart from its loss of profits on the contracts, which would probably be quantifiable, the plaintiff might well also be liable in damages to the 28 purchasers, and its reputation as a developer could be seriously affected. On the other hand, if an injunction is granted and the defendants should ultimately succeed, I think the damage to them would be minimal. While the defendants contend that they are entitled to picket in furtherance of their trade dispute with the employer, they have not demonstrated in any convincing manner just how that trade dispute could be affected by picketing the plaintiff. Certainly, any loss or disadvantage which might be incurred by the defendants would be far outweighed by the enormous damage which would be caused to the plaintiff should an injunction be wrongly refused, and I have no doubt that the balance of convenience strongly lies in favour of the plaintiff. That being so, on terms that the plaintiff give an undertaking as to damages, I will grant the injunction sought.
G. & T. Crampton Ltd v Building & Allied Trades Union and Others
1997 No.359
Supreme Court
12 December 1997
[1998] 1 I.L.R.M. 430
(Nem. Diss.) (ex tempore) (Hamilton CJ, O’Flaherty and Barrington JJ)
HAMILTON CJ
(O’Flaherty and Barrington JJ concurring) delivered his judgment on 12 December 1997 saying: This is an appeal brought by the first and second named defendants in the proceedings and they will be hereinafter referred to as the appellants. This matter comes before this Court by way of an appeal brought by the appellants against the judgment of the High Court delivered on 20 November 1997. The matter had come before the High Court by way of a notice of motion dated 18 November 1997 in which was sought an order *432 restraining the defendants, pending the trial of the action, from watching, besetting or picketing the plaintiff’s construction site at Collins’ Avenue, Glasnevin in the City of Dublin, and from interfering with access to or egress from the plaintiff’s said construction site.
The matter arose because of the fact that the defendants had placed a picket on the plaintiff’s premises on 17 November 1997. The application for the relief sought in the notice of motion was grounded on an affidavit of Mr Patrick Walsh and the affidavits referred to. The matter was dealt with expeditiously by the learned trial judge, as is necessary in all applications of this kind when an application is made by an employer or occupier of the site to restrain picketing of their premises, because of the consequences that such picketing can have including disruption of the business being carried out on the site by employers such as the plaintiff. We all know that picketing is a very strong weapon in the armoury of a trade union, when acting lawfully in furtherance of a trade dispute. As I say the application to the High Court was grounded on the affidavit and the exhibits.
During the course of the hearing further and additional affidavits were filed because of the time constraint placed on the parties to bring all the matters that they considered relevant to the application before the High Court.
The learned trial judge had before her all the relevant information other than the affidavit of Mr Lamond dealing with the circumstances of the ballot carried out by the trade union concerned.
This Court has the benefit of that affidavit and considers itself entitled to rely on it because it is called upon to deal with the circumstances as of the time of the appeal before it and deal with the issues which are before it.
The learned trial judge delivered her judgment on 20 November of this year, the matter of the application having been before her on 18 and 19 November so she is to be commended (as I hope that the parties will commend this Court) for the expedition with which she gave her judgment on the difficult matters and difficult issues which arose upon the hearing before her.
Relevant statutory provisions
The application for the injunction was contested by the defendants on a number of grounds and in particular they relied on, in the first instance, the provisions of s. 11 of the Industrial Relations Act 1990 and also on the provisions of s. 19(1) and (2) of that Act and I think it is desirable at this stage very briefly to refer to the provisions of s. 11 of the Act and in particular s. 11(4) because it is relevant to the position that the appellants take before this Court.
S. 11(1) provides that it shall be lawful for one or more persons acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute to attend at or, where that is not practicable, at the approaches to a place where their employer works or carries on business if they so attend *433 merely for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from work.
And I would like at this stage to emphasise that it does not appear on any of the affidavits before the learned trial judge that the picket that was being carried out was other than a peaceful picket for the purpose of communicating information with regard to the nature of the dispute.
S. 11(4) provides that it shall be lawful for a trade union official to accompany any member of his union whom he represents provided that the members are acting in accordance with the provisions of subs. (1) or (2) and provided that such official is attending merely for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or to abstain from work.
S. 14 deals with the changes to be brought about in the rules of trade unions for the purpose of complying with the requirements of s. 14 of the Act and it is clear from the rules that were handed into court that the rules of the union were amended in accordance with the provisions of s. 14 of the Act. In view of the issues that have been raised in these proceedings and before this Court, the rules provide, inter alia, that the union will not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot to believe will be called upon to engage in the strike or other industrial action.
Rule 6 of the union provides:
The union shall take reasonable steps to ensure that every member entitled to vote in the ballot, votes without interference from or constraint imposed by the union or any of its members, officials or employees and so far as is reasonably possible that such members shall be given a fair opportunity of voting.
This obviously entails the necessity of informing such members of the fact that a ballot is being held, the nature of the ballot and that they should be afforded a fair opportunity of voting on it.
The other section of the Act referred to in these proceedings is of course s. 19 and this is the fundamental one having regard to the fact that the appeal in this case is limited to that brought by the union and its official, the second named defendant. S. 19(1) provides that where a secret ballot has been held in accordance with the rules of a trade union as provided for in s. 14 the outcome of which (or in the case of an aggregation of ballots, the outcome of the aggregated ballots) favours a strike or other industrial action, and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the *434 strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute. Notice was given by the plaintiff, the respondent in this appeal, of its intention to apply for an injunction and that was in effect the application that was heard by Laffoy J.
S. 19(2) provides that:
Where a secret ballot has been held in accordance with the rules of a trade union as provided for in s. 14 the outcome of which or in the case of an aggregation of ballots, the outcome of the aggregated ballots favours a strike or other industrial action and the trade union participating in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, the court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation of or furtherance of a trade dispute.
In this connection it is relevant to point out that the learned trial judge held that a fair case had been made by the defendants, that they were acting in contemplation or furtherance of a trade dispute and that issue is not a contentious issue between the parties in these proceedings.
In order to fulfil the obligations under s. 19 it is necessary for the union to give not less than one week’s notice of the intention to strike or take any other industrial action.
They purported to do this by letter dated 7 November 1997 which provided (and I quote):
as you are aware the Labour Court has now issued a recommendation and this being done the union and its members completely honour the undertaking given on 8 July to exhaust industrial relations procedures in accordance with the terms of the registered agreement.
However, and this is the relevant portion of the letter, ‘the trade dispute with your company has still not been resolved and we are hereby giving you notice of our intention to engage in a strike or other industrial action’.
The findings of the trial judge
The issues before the learned trial judge related to the provisions of s. 11 of the Industrial Relations Act, the provisions of s. 14 of the same Act and the provisions of s. 19. The facts relevant to the issues which come before this Court are set out in detail in the judgment of the learned trial judge and it is not necessary for me at this stage to refer to them. I am very conscious of the fact that in her recital of the relevant facts, she did not have the benefit of the affidavits sworn by Mr Lamond dealing in detail with the circumstances in which the secret *435 ballot was held, the voting thereon and of such like.
Now in the course of her judgment, the learned trial judge stated at p. 8:
There is no evidence whatever before the court as to the outcome of the secret ballot conducted by the union and in particular there is no evidence that its outcome favoured picketing the site.
On this ground alone, she stated:
I am satisfied that there is no evidence before the court that one of the preconditions stipulated in s. 19(2) has been complied with.
I have already stated the provisions of s. 19(2) and the portion thereof that she was referring to was the necessity to have a secret ballot in accordance with the provisions of s. 14 of the Act.
The appellants are, to say the least of it, aggrieved by this particular finding by the learned trial judge. It is submitted that this issue was not raised in the affidavit filed on behalf of the plaintiff and that they had not in view of the shortness of time and the manner in which the case was dealt with, the opportunity of satisfactorily dealing with this point. It is true that the affidavit upon which the plaintiff’s application was grounded referred to a breach of the provisions of s. 19 of the Act; but the affidavit clearly referred to that on the basis that the persons likely to be affected by the decision were not notified of the ballot and were in effect deprived of the opportunity of voting thereon.
As I said, the learned trial judge in the course of her judgment stated in particular that there is no evidence that the outcome favoured picketing the site and I have already stated that picketing is a strong weapon in the armoury of a trade union and this raises the question of the interpretation of both s. 14 and s. 19 of the Act and requirements of what is necessary to have an effective secret ballot on the issues. The Act deals with a strike or other industrial action and the question arises as to the nature of the proposals that should go before the members to have an effective ballot on the issues be it secret or otherwise.
S. 8 of the Act deals with the definitions of strike and industrial action and it is not necessary for me to refer to them other than to say that industrial action encompasses many different activities: picketing is only one of them, and the question arises on a possible interpretation of the Act (and I go no further) as to whether there is an obligation on the union in conducting a ballot to phrase the proposals so as to give a clear indication of the nature of the action to be taken by the trade union. The notice given by the letter to which I have referred dated 7 November relates to ‘strike or other industrial action’ and does not purport to particularise the nature of the industrial action sought to be taken and a question arises on the interpretation of ss. 14 and 19 as to whether it is sufficient merely *436 to have a proposal before members on the question of strike or other industrial action without specifying the nature of the action for which the members’ approval is sought and necessary by virtue of the terms of ss. 14 and 19.
In my opinion, on this issue alone there is a fair question to be tried. There is also a fair question to be tried as to a need for the entire of the circumstances of the ballot to be investigated for the purpose of ascertaining whether or not the members whom it was reasonable to expect at the time would be called upon to engage in the strike or other industrial action were given a fair opportunity of voting. It is alleged on behalf of the appellants that all the members who were likely to be so affected were notified of the ballot, it is submitted on behalf of the employer by Mr Stewart SC that other members of the union who were likely to be affected were not balloted or given an opportunity of voting on the proposal. So there is another issue to be tried there as to the adequacy of the ballot.
It is quite clear from a consideration of the ballot papers that it is just described — ‘official ballot paper, ballot on proposal to engage in strike or other industrial action’. Then you have the word ‘proposal’ with a blank space after it and below that the words ‘in favour’ and ‘against’. But the ballot papers do not contain the proposal or indeed any proposal upon which the members were being called to ballot. Now whether the ballot paper is adequate to comply with the requirements of s. 14 of the Industrial Relations Act or the rules of the trade union is also a relevant issue which arises on the proceedings.
The learned trial judge also found that there is a fair issue to be tried between the plaintiff and the defendants on the question as to whether or not the members Messrs Leonard and Deacon are entitled to the protection of s. 2(1) of the Act. She had regard to what she described as the very comprehensive arguments advanced by Mr Kerr on behalf of the defendants and by Mr Horan on behalf of the plaintiff in this regard. She went on to say that the nub of Mr Horan’s argument was that as regards union members picketers the plaintiff was not their employer in the context of which the expression is used in s. 11, whereas Mr Kerr contended that it was having regard to the definition of employer in s. 8 of the 1990 Act which defines that word as meaning, inter alia, a person for whom one or more workers seek to work having previously worked for that person. She said on the evidence before her that she had no doubt that the plaintiff’s contention that the picketers are not entitled to the protection of s. 11 raises a fair issue to be tried between the parties.
When a court holds that there is an issue to be tried, the position is as set out in the judgment of the former Chief Justice, Finlay CJ in Westman Holdings Ltd v. McCormack [1992] 1 IR 151; [1991] ILRM 833 with which judgment my colleague, O’Flaherty J, concurred and I would like to refer to the portion thereof reported in [1992] 1 IR 151; [1991] ILRM 833. The passage to which I would refer is contained at pp. 157/838 of the report: *437
Having regard to the decision of this Court in Campus Oil v. Minister for Industry and Energy and in particular the judgment of O’Higgins CJ in that case, I am satisfied that once a conclusion is reached, that the plaintiff seeking an interlocutory injunction has raised a fair question to be tried at the hearing of the action in which if he succeeded he would be entitled to a permanent injunction, the court should not express any view on the strength of the contending submissions leading to the raising of such a fair or bona fide question but should proceed to consider the other matters which then arise in regard to the granting of an interlocutory injunction.
I am satisfied that the affidavits disclosed a fair question to be tried on the question as to whether or not the provisions of s. 11(1) apply to the defendants in the proceedings and also that a number of questions stand to be determined with regard to the interpretation of the provisions of s. 14 and s. 19 of the Industrial Relations Act and the questions to be raised there as to whether or not in the conduct of a ballot a union should be required to particularise the nature of the industrial action for which they seek support of their members and that the proposal being put before those members should particularise such action and (I am expressing no concluded view on it), whether it is not sufficient to comply with the requirements of such Act merely to have a ballot favouring a strike or other industrial action without particularising the nature of the industrial action to be taken by the union and for which they seek their members’ approval. This is a serious issue to be tried in this case because undoubtedly from an examination of the ballot papers, first of all, no actual proposal was placed before the members and even if it were interpreted that the heading ‘Ballot on proposal to engage in strike or other industrial action’ was held to be a sufficient proposal, the question arises again as to whether it is in compliance with the provisions of s. 14 and s. 19 of the Act.
Conclusion
That being so I am satisfied that there are two issues to be tried in this case that have been raised by the plaintiff in these proceedings and I am satisfied that there is a fundamental issue with regard to the interpretation of ss. 14 and 19 of the Act and that the learned trial judge was entitled to come to the conclusion that the condition precedent to the implementation of s. 19 was not established.
She then proceeded to deal with the matter on the basis set forth in the decision in the Campus Oil case and she found that such a question had been raised, she found that damages would be an inadequate remedy and that the balance of convenience was in favour of the granting of the injunction.
In the circumstances which I have attempted to outline at short notice, I am satisfied that she was entitled to come to such a conclusion and that in the *438 circumstances the appeal brought by the first and second named defendants should be dismissed.
Bayzana Ltd. v. Galligan
Finlay C.J.
[1987] IR 241
S.C.
Finlay C.J.
19th November 1986
This is an appeal by the plaintiff against an order made by Hamilton P. in the High Court on the 13th August, 1986, in proceedings brought by the plaintiff against the defendants for injunctions restraining picketing. The learned President granted to the plaintiff an injunction restraining the defendants from trespassing on the plaintiff’s hereditaments, factory premises, farm and lands at Leixlip; from picketing otherwise than in a peaceful manner and limited to two persons at any one entrance, but refused to the plaintiff the remedy they sought in the High Court, namely, an injunction prohibiting all forms of picketing. It is against that refusal that this appeal was brought.
Irish Meat Producers Limited (“I.M.P.”) formerly carried on business producing meat in the premises now owned by the platiff, but in January, 1986, ceased trading in those premises and made all their employees redundant. A claim was made on behalf of the employees for payment of redundancy money substantially in excess of the statutory amount and it is not in issue that since the making of that claim and the refusal of I.M.P. to satisfy it that a trade dispute has existed between the defendants and I.M.P. An official picket sanctioned by the Irish Congress of Trade Unions was placed on the premises on the 30th January, 1986, and has remained on the premises ever since.
In the month of March, 1986, the plaintiff purchased these premises from I.M.P. which in addition to the meat-producing factories and yards contains about 300 acres of agricultural land. It purchased it with notice both of the existence of a trade dispute and of the presence of a picket. The evidence before the Court indicates that that purchase was completed, that no amount is outstanding by the plaintiff to I.M.P. in respect of the purchase of the lands and there is evidence that the persons who had purchased it and who are the beneficial owners of the plaintiff company are not associated with I.M.P.
It is alleged on behalf of the plaintiff in a series of affidavits that upon its completing the sale and entering into possession of the premises the most urgent requirement was, firstly, to harvest a very substantial area of silage which was awaiting to be cut; secondly, to take away from the lands and deliver back to their owners cattle that were grazing there, neither the property of I.M.P. nor of the plaintiff; and thirdly, to dispose of a substantial quantity of meat which was in cold storage which was the property of Hibernia Meats Limited and which had been stored by I.M.P. for them and of which the plaintiff asserts that it is a gratuitous bailee. The plaintiff alleges that these activities were impeded by the existence of pickets and by what is described in detail as intimidating, threatening and violent behaviour on the part of pickets and by the number of persons assembling to picket the premises. All these allegations are fully and amply denied in conflicting affidavits filed on behalf of the defendants.
It would appear that the silage was eventually cut: though the first contractor employed to do the job left the premises, it is alleged by the plaintiff, as a result of activities by the defendants’ picket and it is alleged by the defendants because he ascertained that there was a trade dispute. The cattle would appear to have been removed from the land at night and without the knowledge of any of the parties picketing the premises and the meat has neither been certified nor removed from the land. This meat is intended to be placed into intervention under the E.E.C. regulations, and before that can be done it must be examined and certified by officers on behalf of the Department of Agriculture. Those officers refuse to enter the premises for that purpose until the picket has been removed. If the meat is not certified within a very short time of the hearing by this Court of this appeal, a loss of over £3.5 million in intervention grant from the E.E.C. will be sustained by Hibernia Meats Limited, primarily, and the plaintiff asserts that it is apprehensive that a claim for that amount will be mounted against it by Hibernia Meats.
I.M.P. has other premises in Cork and elsewhere in which they carry on business of meat producers and in which persons are still employed and the defendants have not sought to picket any of these premises.
It is not asserted on behalf of the defendants that any dispute exists between them and the plaintiff, but it is stated that two employees of I.M.P., formerly employed by I.M.P. in the Leixlip factory, have been kept on and are maintaining the refrigeration system in the factory and that in addition, from time to time members of the management of I.M.P. attend at the factory. The defendants have no dispute about the existence of these persons within the factory but assert that that is a sufficient connection between I.M.P. and the premises to warrant the picketing of the premises in furtherance of their (the defendants’) trade dispute with I.M.P.
Counsel on behalf of the plaintiff bases his case on three contentions. Firstly, he asserts that there is a fair question to be tried as to whether the picketing by the defendants of these premises is now in bona fide furtherance of the trade dispute existing between them and I.M.P. Secondly, he asserts that once that fair question to be tried has been established the second test to be applied is whether the balance of convenience favours the granting or refusal of an injunction and he asserts that the balance of convenience overwhelmingly favours the granting of an injunction. Thirdly, and in a sense in the alternative, he asserts that there is a fair question to be tried as to whether the unlawful and violent nature of the picketing which has occurred would justify the granting of an injunction restraining all picketing, at least until the determination of the action.
With regard to those submissions, the defendants, through their counsel, conceded that a fair question as to whether their actions were in bona fide furtherance of the trade dispute between them (the defendants) and I.M.P. existed. Even if that concession had not been made, and I think it was proper that it should have been made, I am satisfied on the affidavits, and having considered the evidence, that there is a fair question to be tried on that issue. The plaintiff does not concede any connection between it and I.M.P. and asserts a total incapacity to influence I.M.P. in regard to the trade dispute existing between that company and the defendants. If that evidence were accepted it seems to me that a consequence of it would be, on the full hearing of the action, that a court could properly reach the conclusion that the picketing of these premises was not at present within the ambit of the statutory protection created by the Trade Disputes Act, 1906.
At this stage, on an interlocutory application, it is neither possible, nor would it be proper for this Court to seek to decide that issue; the only test being whether there is a fair question to be tried.
With regard to the balance of convenience, the defendants assert that the balance of convenience would best be served by maintaining the status quo ante. This they assert was the position prevailing in March, 1986, when the plaintiff purchased the premises namely that a picket existed on them. Secondly, they assert that if the picket is removed, even by an interlocutory injunction, with the result that the meat which is at present in cold storage is released and put in intervention, that their major weapon in their industrial dispute with I.M.P. will have disappeared. They deny that the existence of an undoubted right to picket premises which are occupied by I.M.P. and in which I.M.P. carry on work, is a good substitute for their present weapon in their industrial dispute. In particular they point out that the defendants themselves are persons who live in or around Leixlip, and have for many years been employed by I.M.P. in Leixlip, and that the other premises are in Cork, and, secondly, that if they were to picket the premises in Cork they would affect their former fellow employees of I.M.P. and possibly inflict financial harm on I.M.P. which would leave it less well able to meet the claim for extra redundancy.
The plaintiff, with regard to the balance of convenience, asserts that there is a real risk that if it cannot be put into intervention with the E.E.C. grant, the £5 million worth of meat would become for all practical purposes valueless, and certainly of no greater value than £1 million. It further asserts that it is at present spending a very substantial sum in trying to secure the premises by reason of the picketing alone and that it is completely prohibited by the picketing, apart from the question of the meat, from developing the premises which it purchased in accordance with whatever its commercial plans may be. It asserts that there is no chance that it could recover by way of damages any part of this loss of any significance from the defendants.
I would accept that if it is established by the defendants at the hearing of this action that their conduct in picketing these premises is bona fide in furtherance of a trade dispute, and was something which was likely to put pressure on I.M.P. to settle that trade dispute, that if the picketing is now prohibited by the Court, that they will have lost a significant bargaining weapon in their industrial dispute. I do not accept that they have established that they will have lost all bargaining position or that they will have been deprived of every weapon against their former employers. Apart from the right to picket I.M.P. premises, to which I have already referred, if the defendants succeed at the hearing of the action it must be on the basis that they establish to the satisfaction of the Court that the relationship between the plaintiff and I.M.P. is such that it is possible for the plaintiff to put pressure on I.M.P. to reach a satisfactory conclusion with the defendants in the industrial dispute. If that is so, then the defendants will still have a powerful weapon against the plaintiff to try and force it to adopt that course, for by the resumption of a picket which would then in such an event become lawful, they could paralyse the development or use of this entire premises, both land and factory premises, thus leaving idle an investment which has cost over £2 million.
I conclude that having regard to the amount of loss which is likely to be suffered by Hibernia Meats Limited if this picket is not removed and the potential liability of the plaintiff in a claim for damages against it for that loss and having regard to the other losses which the plaintiff is suffering in connection with the premises which they have purchased, that the balance of convenience is in favour of granting the injunction.
I would therefore allow the appeal and substitute for the injunction contained at para. 2 in the order of the High Court dated the 13th August, 1986, an injunction in the terms contained at para. 1 of the indorsement of claim on the plenary summons herein.
The plaintiff is prepared to give an undertaking as to damages and has given an undertaking that if granted the injunction by this Court that it will enforce it. There must also be an undertaking by the plaintiff that it will expedite the hearing of the action. In the event of there being delay on the part of the plaintiff in the setting down and prosecution of the action, there is liberty to the defendant to apply to this Court to terminate the injunction. Liberty otherwise to apply to the High Court.
Henchy J.
The defendants were employed by Irish Meat Producers Limited (“I.M.P.”). I.M.P. carried on business as meat processors at (amongst other places) a premises at Leixlip, County Kildare, comprising a factory, farm buildings and over 300 acres of agricultural land (“the premises”). I.M.P. ceased to carry on business on the premises in January, 1986, upon which a trade dispute broke out between I.M.P. and their employees (including the defendants) as to the amounts that I.M.P. should pay to their employees as redundancy payments. In March, 1986, I.M.P. sold the premises to the plaintiff for over £2m. At the time of the sale the plaintiff was aware of the trade dispute that was in existence between the defendants and I.M.P. It has not been suggested that the purchase was other than a bona fide one or that since the plaintiff moved into possession in March, 1986, I.M.P. have ceased to trade or carry on any business on the premises. The only connection I.M.P. now have with the premises is that two of their employees have, with the approval of all the interested parties, continued to work on the premises at the maintenance of the cold storage facilities.
The reality of the situation, therefore, is that I.M.P. have no real connection with the premises, in that they have sold it to the plaintiff and have withdrawn from trading or carrying on any business on the premises and the plaintiff is in sole possession of the premises. Nevertheless, the defendants are continuing to picket the premises and claim that they are entitled to do so in furtherance of the trade dispute that undoubtedly exists between them and I.M.P. The plaintiff, pointing out (and this is not denied) that no trade dispute exists between it and the defendants, contends that the picketing of the premises is illegal as not being in furtherance of the only trade dispute that exists. It further contends that, even if picketing of the premises were held to be permitted by the Trade Disputes Act, 1906, the numbers of pickets and the violence and intimidation resorted to by the defendants and their agents have rendered the picketing unlawful. The defendants have adduced evidence by affidavit to controvert the allegations made as to the nature of the picket.
Since this is essentially an application by the plaintiff for an interlocutory injunction to restrain the picketing completely until the trial of the action, and since the evidence on each side is on affidavit, it is impossible to make any judicial conclusion as to the nature and extent of the picketing and, therefore, as to the question of its legality as far as the plaintiff is affected by it.
What is called for is the application to the circumstances of the case of the test for granting interlocutory relief as stated by this Court in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 and as subsequently endorsed by this Court in Irish Shell v. Elm Motors [1984] I.R. 200. In his judgment in the Campus Oil Case (with which the other members of the Court agreed) O’Higgins C.J. said (at p. 107):”
“In my view, the test to be applied is whether a fair bona fidequestion has been raised by the person seeking the relief. If such a question has been raised, it is not for the Court to determine that question on an interlocutory application: that remains to be decided at the trial. Once a fair question has been raised, in the manner in which I have indicated, then the Court should consider the other matters which are appropriate to the exercise of its discretion to grant interlocutory relief. In this regard, I note the views expressed by Lord Diplock, with the concurrence of the other members of the House of Lords, at p. 407 of the report of American Cyanamid v. Ethicon Ltd. [1975] A.C. 396. I merely say that I entirely agree with what he said.”
Applied to this case, that test means that the plaintiff must first show that it has raised a fair bona fide question to be decided at the trial, and if it has, the interlocutory relief sought should be granted only if the balance of convenience requires that all picketing of the premises by the defendants should be restrained until the trial of the action. There is no suggestion that an award of damages at the trial would meet the plaintiff’s claim.
Counsel for the defendants has conceded (quite properly, in my view) that a fair bona fide question has been raised by the plaintiff as to the legality of the picketing. It only remains, therefore, for the Court to decide whether the balance of convenience requires that all picketing should be restrained until the hearing of the action.
Apart from complaints of the inconvenience, disruption and intimidation caused by the picketing, the trading losses generally and the expense incurred in providing extra security, the plaintiff points to one circumstance which, according to it, makes it imperative that the defendants should for the present be ordered to desist from picketing. That circumstance derives from the fact that, upon purchasing the premises, the plaintiff became involuntary bailee of 1,280 tons of frozen meat which is in cold storage in the premises and is worth about £5m. This meat is the property of Hibernia Meats Limited. Hibernia Meats Limited wish to sell this meat outside the E.E.C., but for that to happen it would be necessary for veterinary officials of the Department of Agriculture to inspect and certify the meat on behalf of the E.E.C. However, those officials are not prepared to pass the defendants’ picket to do that inspection and certification. Hibernia Meats Limited is also anxious to have the meat removed from the premises by independent contractors, but such contractors would be deterred by the picket from doing so. In fact, it is said on behalf of the plaintiff that if the meat is not satisfactorily disposed of by the end of December, 1986, its value will fall from about £5m. to £1.2m.
In the special circumstances of the case, I consider that the balance of convenience requires that the picketing of the premises be raised until the trial of the action. This means that the defendants will, at least temporarily, be deprived of the picket as a weapon in their dispute with I.M.P. about the amount of redundancy payments. But it has to be remembered that the defendants have no trade dispute with the plaintiff; and I.M.P. is not carrying on any business on the premises. If it be held at the trial that the defendants are entitled to picket the premises, they can resume doing so in a peaceful manner. But pending the trial, I think it entirely proper that the plaintiff, who is an innocent party in the dispute and is being sued by Hibernia Meats Limited in respect of the meat, should have all pickets on the premises withdrawn so that the meat may be satisfactorily disposed of.
I would allow this appeal by the plaintiff to the extent of varying accordingly the injunction against picketing granted in the High Court. The plaintiff has given an undertaking as to damages and that it will take all steps necessary to enforce the High Court order as hereby amended. It must also give an undertaking to make a special application in the High Court for an early hearing. Save as to a breach of any undertaking given to this Court, there will be liberty to apply in the High Court.
Griffin J.
I agree with the judgment of the Chief Justice. In deference however to the arguments made before us I would like to add a few words of my own.
It is well established that on the hearing of an application for an interlocutory injunction, where damages would not be an adequate remedy, two questions arise for determination, i.e., whether the party applying for the injunction (invariably the plaintiff) has raised a fair question to be tried at the hearing of the action, and, if so, whether the balance of convenience and the preservation of the status quo was in favour of the granting or refusal of the interlocutory injunction ” see Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 Irish Shell v. Elm Motors [1984] I.R. 200.
In the present case, counsel for the defendants accepts that, while there is a trade dispute between the defendants and Irish Meat Producers Limited (I.M.P.), there is no trade dispute between the defendants and the plaintiff. Their counsel maintains that the defendants are entitled to picket the premises of the plaintiff by reason of the fact that the two employees of I.M.P., who maintained the refrigeration plant on the premises when the premises were owned by I.M.P., still attend the premises for the purpose of maintaining such plant, and also that some of the management staff of I.M.P. from time to time visit the premises to ensure that the refrigerated meat is maintained in good condition. It is claimed on behalf of the defendants that, whilst they cannot assert that the maintenance of the picket puts any financial pressure on I.M.P., the fact that those employees of I.M.P. attend the premises is sufficient to establish that the picketing is in furtherance of their trade dispute with I.M.P. and is accordingly entitled to enjoy the protection of the Trade Disputes Act, 1906. The defendants accept however that there is a fair question to try as to whether their picketing of the premises is in furtherance of their trade dispute with I.M.P. On this question, it should be noted that the presence of the employees of I.M.P. on the premises is and has at all material times been acceptable to the defendants, for the very good reason that it is in the interests of all parties to ensure that the refrigeration plant is kept in proper working order and that the condition of the meat is not allowed to deteriorate ” an arrangement that seems to accord with sound common sense on the part of the defendants and their trade union, as meat that is no longer wholesome is of no benefit to anyone.
The real issue in the case is therefore whether the balance of convenience is in favour of granting or refusing the interlocutory injunction. In my opinion, in the circumstances of this case, the balance is clearly in favour of granting the injunction. If the picketing of the premises is permitted to continue, the effect on the plaintiff will be that its lands and its factory premises are effectively sterilised indefinitely, it will continue to require the expenditure of substantial sums in the maintenance of a 24 hour security on the premises, and the benefit of the intervention grants available to the owners of the meat (Hibernia Meats Limited), estimated at £3.5 million, will be lost within a matter of weeks, without any real material benefit to the defendants, but with a possible contingent liability on the plaintiff, who cannot in the meantime put any effective pressure on I.M.P. to settle their trade dispute with the defendants. If, on the other hand, the injunction is granted, whilst the defendants would have been temporarily deprived of the advantages which the maintenance of the picket gives to them pending the trial of the action, and whilst the meat would almost certainly be removed from the premises and be put into intervention in the meantime, the rights of the defendants would, at most, be only temporarily postponed. If, at the trial, it is held that the picketing was not in bona fide furtherance of a trade dispute, any picketing would have been unlawful and the defendants would not have suffered any loss in not being permitted to picket the premises. If, on the other hand, they succeed at the trial, they could then restore a picket on the premises, provided that the picket was a peaceful picket within s. 2 of the Act of 1906 ” a picket which would be maintained on a premises consisting of 300 acres of land and a factory premises worth a sum in the region of £2.3 million. Their bargaining power would be restored, and they could effectively sterilise those premises once again until their trade dispute is settled.
In these circumstances, the balance of convenience is clearly in favour of granting the interlocutory injunction. I would accordingly allow the appeal, and concur in the order proposed by the Chief Justice.
Hederman J.
I concur with the judgment of the Chief Justice.
McCarthy J.
The plaintiffs own a meat slaughtering and processing factory at Barnhall, Leixlip, County Kildare and 300 acres of land adjoining. At the time of the purchase of these lands from Irish Meat Producers Limited (10th March, 1986) a trade dispute existed between I.M.P. and their former factory staff and employees, members of the Irish Transport and General Workers Union; the dispute had been made “official”. Official pickets were placed on the factory premises on the 30th January, 1986, and have been there since. The defendants have been amongst those acting on the picket. In a cold room in the factory there is a large quantity of meat which is the property of Hibernia Meats Limited; this circumstance requires the regular attendance of two maintenance men employed by I.M.P. who “called regularly into the premises to check and maintain the cold storage.” ” affidavit of Patrick Galvin.
As I understand it on this motion for an interlocutory injunction to restrain the defendants and, consequently, any other persons who may act in concert with the defendants or in pursuit of the same course of action, the plaintiff’s case is that ”
(a) there is no dispute, trade dispute or otherwise, between Bayzana and the defendants; the defendants’ dispute is with their former employer, I.M.P. Consequently the picketing which it is admitted has taken place does not enjoy the protection of s. 2 of the Trade Disputes Act, 1906, as not being, to use a neutral term, related to a trade dispute between Bayzana and the defendants;
(b) the actions of the defendants, whilst they may well arise out of the trade dispute with I.M.P., are not in contemplation of or in furtherance of that trade dispute, since I.M.P. has, so to speak, severed its connection with the lands and premises in question;
(c) in any event, the picketing has been excessive in a variety of ways and not merely should such excessive picketing be restrained, as was ordered by the learned President, but the defendants and those acting in concert with them have forfeited their statutory right to picket as conferred by s. 2 of the Act of 1906;
(d) there is a fair question of law to try touching upon the defendants’ right to picket at all and that the balance of convenience lies in granting the injunction sought.
The learned President concluded that the premises “are so closely connected with the dispute as to bring them within the principles set out in Ellis v. Wright [1976] I.R. 8. There is in existence a trade dispute and the picketing is being carried out in furtherance of that dispute. Whether that picketing will be successful, or can have the effect of producing a settlement of the dispute is irrelevant.” He acceded to the submission that on the facts as alleged on behalf of the plaintiff the picketing was excessive and he granted an injunction restraining the defendants from picketing other than in a peaceful manner, restricting the number of picketers to two persons at any one time at any entrance to the premises; the latter part of the injunction was, in effect, to order that the defendants should not disobey the law. The kernel of this decision is that the picketing of the premises was in furtherance of a trade dispute; it can hardly be in doubt that the defendants believe they are acting in furtherance of a trade dispute, but counsel for the defendants, on enquiry from the Chief Justice, conceded that there was a fair question as to whether the acts done are in furtherance of a trade dispute. For myself, I would not have made such a concession; as at present advised, I share the view of the learned President that, in the circumstances of this case, the picketing of the premises, where the defendants were formerly employed, of the premises wherein two of the I.M.P. employees are regularly working for the maintenance of the cold store in which a large quantity of meat was authorised to be put by I.M.P. is on its face in furtherance of the trade dispute being, as the learned President said, so closely connected with the dispute. Whilst, no doubt advisedly, Mr. White made this concession, he pointed to what is a more relevant feature of the several events that I have sought to outline. An interlocutory injunction restraining an individual from doing something which it is lawful to do is, apart from certain other legal considerations, primarily founded upon the desirability of maintaining what is called the status quo (to complete the phrase, the status quo ante bellum). In the course of argument, Mr. Salafia cited part of my judgment in Irish Shell v. Elm Motors [1984] I.R. 200, a case concerning a solus agreement in which I expressed the view, with which the other members of the Court agreed, that the proper time for considering balance of convenience was, in that case, as of the date of the hearing in the Supreme Court. That, surely, in the ordinary case of an injunction being sought is not the “bellum” the state before which must be preserved. On first principles, in an action to restrain picketing, one would look either to the time at which the picketing began or to the time, as in this case, when the party seeking the injunction was first directly involved. That was on the 10th March, 1986, although it is not too much of a stretch of inference to conclude that the plaintiff must have been aware of the picketing throughout the negotiations that led to their purchase and were prepared to buy and to enter upon the premises, in the knowledge that a trade dispute existed between the former employees and the vendors and that the employees were picketing in apparent furtherance of that trade dispute. It now seeks, in the light of subsequent events, the silage problem having been resolved, to rely upon a continuing additional expense of £1,000 per week in the provision of security and an alleged potential liability to Hibernia Meats Limited in respect of the meat presently stored in the factory and stated to be worth approximately £5,000,000. Since any potential liability to Hibernia Meats does not form part of the plaintiff’s claim as detailed in the statement of claim delivered on the 28th August, 1986, and was only peripherally mentioned in the hearing before the learned President, in whose judgment it makes no appearance, I think it right to refer verbatim to para. 6 of the affidavit of Patrick Galvin, general manager of Bayzana, which affidavit was filed on the 16th October, 1986, some two months after the judgment of the learned President.
“A main cause of difficulty for the plaintiff is the continued pressures of approximately 1,280 tons of meat belonging to Hibernia Meats Limited which was in a cold store in the premises at the time that the premises were purchased and possession taken over by the plaintiff. The plaintiff has never had and does not have any contractual relationship with Hibernia Meats, but has been forced as a bailee to attempt to safeguard that meat while it is on the premises. The meat is worth approximately £5,000,000 and there have been frequent and continuing fears both by the owners thereof and by the plaintiff that because of the ease with which the refrigeration plant at the plaintiff’s premises could be disrupted, that (sic) the meat would become totally worthless while in the plaintiff’s premises. I say and believe that Hibernia Meats Limited is extremely anxious to remove the meat from the premises, and in fact instituted proceedings in the High Court to try and restrain the picketing, but such application by Hibernia Meats was unsuccessful. I.M.P. Limited itself does not appear to have done anything to try and safeguard its position as the person with whom Hibernia Meats has its contract, and does not appear to have been able or willing to resolve the trade dispute which it has with its ex-employees. I say and believe that the ex-employees are claiming redundancy monies in the region of £1,950,000 which is considerably in excess of their statutory entitlements, and that I.M.P has offered something in the region of £1,350,000. Notwithstanding that I.M.P. is a subsidiary of Cork Marts Limited and has many other premises which were capable of being directly affected by the ex-employees at Leixlip, these employees appear to have chosen to do nothing about picketing other premises actually belonging to I.M.P., but are content to make the premises at Leixlip totally worthless, in the knowledge that they are putting at risk the meat belonging to Hibernia Limited, which are on the plaintiff’s premises. Bayzana Limited itself is not a party to the dispute between I.M.P. Limited and its ex-employees, and in no way can contribute to the resolution of that dispute between the parties. I say and believe that Hibernia Meats is not a party to that dispute either and again is in a position of a person whose products had been caught in storage at the time the dispute broke out.”
All of these circumstances must have been known to Bayzana at the time of the negotiations for purchase and the completion of the sale on the 10th March, 1986. How, then, does one fix the bellum date in the circumstances of this case? The plaintiff seeks an equitable relief; the defendants say that the picket weapon is the only effective one they can bring to bear in this dispute; they live in Dublin or indeed in the Leixlip area and cannot maintain a picket in Cork, at least personally. In effect, they say, Bayzana bought the premises warts and all and if an injunction is to be granted pending the trial of the action the effect would be to rob the defendants of their only real weapon in the dispute ” to bring pressure on I.M.P. by making it as awkward as possible for I.M.P. and that they are entitled to do that because of the existing connection and, in particular, because as of the date of the bellum, I.M.P. was the owner of the property.
It is notorious that in actions of this kind, the resolution of the interlocutory motion is, effectively, the resolution of the action. This does not mean that the plaintiff has established his right to win, but that the plaintiff wins if he can get an interlocutory injunction. This should not be the case but it is. In the course of argument, I asked Mr. Salafia to refer to any case in the last decade or two in which an injunction had been granted restraining picketing, where there had been a subsequent trial, irrespective of the result. He was unable to do so. The reason is a very practical one, quite apart from the natural reluctance to endanger union funds in respect of law costs. If an interlocutory injunction is granted, either at first instance or on appeal, by the time the trial takes place, however relatively short the interval may be, the bloom has gone off the steel of industrial action; men give up ” seek other jobs ” go elsewhere for that purpose ” emigrate. Worst of all, they may well settle for less than what are their true rights because, they think, however mistakenly, that the dice are loaded against them in the Law Courts ” see submission of the Irish Transport and General Workers’ Union to the Commission on Industrial Relations, January, 1979. We have not been referred to any case in which an attempt was made to pursue a claim for damages by a trade union or its members pursuant to an undertaking to that effect given by an employer or other party seeking and obtaining an interlocutory injunction. Such an undertaking is very appropriate to many types of interlocutory injunction but, as I asked Mr. White and Mr. Salafia during the hearing, how do defendants in a case such as the present prove any loss, if they win the case, if a trial does take place? Any attempt to prove by parole testimony that, in the view of the trade union, they would have got a better settlement if they hadn’t been stopped carrying out their industrial action would hardly stand cross-examination of any competence, if it wasn’t already bedevilled by the natural reluctance of a trade union official to admit that he did not get the best possible settlement. In my judgment, there is no reality whatever in the undertaking as to damages proferred on the part of the plaintiff here; I do not doubt that it is well able to pay damages but that is not the point. It seems to me, accordingly, that the balance of convenience is to be measured by weighing on the one side a loss of £1,000 per week (Mr. Galvin’s first affidavit) or £2,500 per week (Mr. Galvin’s affidavit of the 16th October) and a theoretical liability of Bayzana to compensate Hibernia Meats for any loss sustained by the failure to have the meat released from cold store. This would involve Bayzana being held liable for the non-delivery of such meat, the same being occasioned, in part at least, by the refusal of officers of the Department of Agriculture to pass a picket which was there at the time of the purchase by Bayzana and, presumably, would have resulted in the same official refusal at that time. That loss would be nearly £4,000,000, since there is no evidence as to what price would be available in the market other than in the European Common Market where it is said the meat will become ineligible for subsidies unless it is inspected, certified and exported outside the Common Market by the end of November, 1986. The real loss is, of course, that of Hibernia Meats. The plaintiff did further advance the argument that there was some public or social element to be considered; I am unaware of there being any such consideration relevant to the issues in a case of this kind. There are instances, indeed, where industrial action can have the most destructive effects upon the business interests of totally disinterested parties; a simple example was the postal strike of 1979 which had most damaging
effects both directly and indirectly ” in the financial as well as in the commercial world. A strike by C.I.E. employees could ruin many a delivery business; considerations of that kind however, appear to be more for the Legislature than the Courts. In my view, the sweep of potential loss is irrelevant, save in so far as it is clearly a loss to be incurred by the parties. On its face, I find difficulty in seeing how Bayzana can be under any legal liability to compensate Hibernia Meats even if the meat is ineligible in the circumstances stated; even if the loss is incurred by Hibernia Meats. In this regard, incidentally, I echo Mr. White’s observation as to the absence of any information concerning the exact nature of the transaction between I.M.P. and Bayzana ” the nature of the contract ” the nature of the indenture ” the nature of the arrangement as a whole. This is particularly apposite since the directors and shareholders of Bayzana are plainly non-beneficial; I do not overlook Mr. McAuliffe’s statement on affidavit that none of the beneficial owners of Bayzana ever had any beneficial ownership or entitlement or had any interest in Irish Meat Producers, Cork Co-Operative Marts Limited or Hibernia Meats Limited. Mr. McAuliffe, as he was entitled to do, stopped short of saying who the beneficial owners are although counsel for the plaintiff suggested that the defendants must believe that there is some connection between the beneficial owners of Bayzana and those of I.M.P.
In the circumstances, I would uphold the decision of the learned President. As I have already indicated, Mr. Salafia at one stage argued that excessive picketing forfeited the right of legal picketing; I sought authority from him in support of that proposition but none was forthcoming. I would wish to take the opportunity of stating that I can find no principle upon which to base any such proposition. I do not subscribe to the view that an individual who abuses the statutory right to picket by excess of numbers or by misconduct in the picket itself thereby forfeits the right to picket lawfully.
An application for an injunction is calling in aid the equitable jurisdiction of the courts and requires good faith on the part of those seeking the equitable remedy; such good faith, in my judgment, requires that the applicant will call in aid the court’s sanction to enforce an injunction by attachment where the terms of the injunction granted have been flouted. In the instant case, according to the supplemental affidavit filed, the defendants have been in flagrant breach of the injunction granted by the learned President, but no step has been taken by Bayzana to attach those in breach of the injunction despite compelling evidence supported by photographs of the scene of the alleged breach. I would be loathe to lend the court’s assistance by way of further and more stringent injunctive orders at the suit of the same applicant against the same defendants. When asked to do so Mr. Salafia undertook on behalf of Bayzana to seek the court’s sanction if the more stringent form of injunction were granted. This is somewhat late in the day. Such an undertaking should be required of anyone who seeks to invoke the equitable jurisdiction of the courts along with what may well be a meaningless undertaking as to damages, for the reasons which I have sought to outline.
In the result I would dismiss this appeal.
Ardmore Studios (Ir.) Ltd. v. Lynch and Others.
McLoughlin J.[1965]
1 I.R. 1
MCLOUGHLIN J. :
5 Oct.
The plaintiff Company is a private limited liability company incorporated in Ireland and having its registered office in Dublin. As its name implies, it has a film studio premises in Ardmore, Bray, in the County of Wicklow, where it carries on the business of managing such studio and providing scenery, staging and other equipment for the production of films at the studio. It maintains at all times a small permanent staff at the studio; it does not itself carry on the production of films, but it lets the studios and equipment for the production of films by production companies, and for this purpose it also employs and provides the services of whatsoever staff, carpenters, electricians and other workers may be required for the productions. The defendants are electricians, members of a trade union which is called the Electrical Trades Union (Ireland), having its offices in Dublin, the first-named defendant being the general secretary of the Union.
On the 9th June of this year the defendants, other than the first-named defendant, George Lynch, attended outside the gates of the plaintiff Company’s premises at Ardmore and picketed the premises by parades outside, carrying placards designed to suggest to the other employees of the Company and to the public that the Union and its members were in dispute with the Company. The defendants admit that the premises were so picketed but they say that it was done in furtherance of a trade dispute and that they were entitled so to do and in so doing were protected by the provisions of s. 2 of the Trade Disputes Act, 1906. The summons in this action was issued on the 18th June last and it claimed a declaration that no trade dispute exists in a furtherance of which it might be lawful for the defendants to picket the premises and claiming also an injunction to restrain the defendants and each of them from so picketing. On the same date an order was made by Mr. Justice Teevan, granting an interim injunction to restrain the defendants from picketing the premises until after the 28th June and giving liberty to the plaintiffs to serve short notice of motion, seeking an interlocutory injunction, returnable for that date. When the motion came on for hearing on that date before Mr. Justice Budd it was agreed between the parties that, instead of continuing with the hearing of the motion, the pleadings in the action should be expedited and the trial of the action listed for hearing as early as possible. This was done, the pleadings were closed and the action came on for hearing before me on the 22nd July and subsequent days. Mr. Justice Budd not being then available.
This was not the first occasion that the studio was picketed by members of the Electrical Trades Union (Ireland). In February, 1963, the premises were so picketed and this fact gave rise to similar proceedings to the proceedings in this action which were heard and determined by Mr. Justice Budd in July of 1963.
Although the circumstances under which the picketing was conducted this year differ materially from the circumstances under which it was conducted in February, 1963, having regard to the way in which I base my decision I find it necessary to refer to the history of the previous action and to the facts and circumstances giving rise to it.
The studio premises were built in 1957. In 1958 the Company commenced business and rented its premises for the production of films to production companiesI think they were all British companiesand five films were produced between that date and the production of the films that gave rise to the industrial dispute that resulted in the earlier action. I do not find it easy to ascertain what in fact were the arrangements between the studio Company and the Union in the earlier part of this association. On the 1st January, 1959, there was completed an agreement between the Company, of the one part, and what was called the Trade Unions Studio Committee, of the other part. This committee was composed of representatives of signatory unions catering for various classes of workers from actors to labourers; the signatory unions included the Electrical Trades Union (Ireland) and another union which caters for electricians, but to a lesser extent, called the Irish Engineering Industrial and Electrical Trade Union.
Although dated, as I have said, the 1st January, 1959, the agreement was expressed to commence on the 3rd April, 1958. It would seem that prior to the date of the making of the agreement arrangements must have been made for the employing of electricians and it would appear that they were supplied mostly from among the members of the Electrical Trades Union (Ireland) but to the number of about three from the other union I have mentioned. Later it would seem that the electricians from this latter union resigned from it and joined the Electrical Trades Union (Ireland) and their names were placed on a list of electricians of the Electrical Trades Union (Ireland) from which list electricians were supplied to the studio for production work as and when required. This list became known as the “seniority list,”because when required by the studio electricians were supplied from this list in the order in which their names appeared on it. This was an arrangement which suited the Union and its members and also suited the Company because it got, each time it required electricians for the production of a film, men who were experienced in the specialised work of a film studio.
By a letter, dated the 1st January, 1962, the Electrical Trade Union (Ireland) terminated this agreement by giving three months’ notice in accordance with a term in the agreement. Notwithstanding this fact the Company continued to employ, and the Union to supply, electricians in accordance with the seniority list pending negotiations for a new written agreement, which got as far as draft form by July, 1962, but nothing further came of it.
The defendants in paras. 10 and 11 of their defence in this action plead as follows:
“10. The defendants say further that in an action in the High Court entitled ‘1963, No. 346 P. THE HIGH COURT. Between Ardmore Studios (Ireland) Ltd., Plaintiffs, and George Lynch, Anthony Kelly, Roland Hill, Michael Doyle, Leo Murphy, Thomas Murphy and Dermot Moloney, Defendants,’ which was instituted by the plaintiff Company and wherein the present defendants, George Lynch, Anthony Kelly, Dermot Moloney and Leo Murphy, were among the defendants, it was (inter alia) adjudged and held by Mr. Justice Budd on the 30th day of July, 1963, as follows:
(i) That the said seniority list was in existence on the 25th day of February, 1963, being the date of the picketing concerned in the said action and that the said seniority list then contained the names of 20 electricians, all of whom were members of the said Union, though members of two other Unions could also be on it.
(ii) That members of the said Union were drawn from the said seniority list by the plaintiff Company from the first day of January, 1962, to the time when the trade dispute concerned in the said action took place; and
(iii) That the said Union and its members up to and on the 25th day of February, 1963, held the genuine and bona fide belief that the said Union had a binding agreement with the plaintiff Company that electricians required for work at the Ardmore Studios would be drawn from the said seniority list and that the said Union and its members acted on that belief.
The defendants say and will submit to the Court that the plaintiff Company is precluded and estopped in this action by the said findings and judgment of Mr. Justice Budd and that the plaintiff Company ought not to be admitted to say, as against the defendants or the said Union or the members thereof, that the facts are otherwise than are found by Mr. Justice Budd and set forth at (i), (ii) and (iii) of this paragraph.
11. The agreement relied upon by the defendants respecting the said seniority list has not been altered or varied in any way since the 25th day of February, 1963, or since the 30th day of July, 1963, when judgment was delivered as aforesaid by Mr. Justice Budd, and the said agreement remains in full force and effect. The defendants and the said Union and the members thereof hold and have at all material times continued to hold the genuine and bona fide belief that the said agreement respecting the seniority list is still subsisting and in full force and effect as an agreement binding upon the plaintiff Company and on the receiver as agent of the said Company and upon the said Union and its members. The defendants say and will submit that by reason of the said belief a valid trade dispute was at all material times and is in existence between the plaintiff Company, or the said receiver as agent of the said Company and the said Union acting on behalf of workmen members, and/or the defendants.”
In view of this plea I find it necessary to recite here the entire judgment of Mr. Justice Budd in the former action, which details the evidence as given before him and sets out his findings of fact. This may mean a wearisome repetition of facts which are not in dispute, but, sooner than reading selected extracts I prefer to read it in full as it was read in the hearing before me.
The judgment is not reported, but I am reading now from a copy certified by the official reporter and which is as follows:
“The plaintiff in this action (hereinafter referred to as ‘the Company’) is a private company incorporated in Ireland and carrying on the business of managing film studios, and providing stages, scenery, equipment and necessary plant for the production of films at the studios. The Company lets out its studios and equipment to film producers and production companies and employs a staff of technical employees, some of whom are permanent employees, others of whom are employed on a temporary basis. Amongst these employees there are electricians. The defendant, George Lynch, is the general secretary of the Electrical Trades Union (Ireland) (hereinafter called ‘the Union’) and the other defendants were all members of the Union at dates relevant to this action.
On the 25th February, 1963, the defendants other than George Lynch are alleged to have picketed the Company’s premises, known as the ‘Ardmore Studios,’ in the manner set out in the statement of claim. Interim and interlocutory orders restraining the picketing of the premises, pending the determination of the action, were obtained by the Company.
The Company in its statement of claim, having set out the facts which I have summarised above, states that there is no strike or trade dispute as defined by the Trade Disputes Act, 1906, relating to the Company, the defendants or any of them, or the business of the Company and that there never was any such dispute or strike. It is further stated that the picket indicates to the public that such a strike or dispute does exist, and that by reason of the activities of the defendants, nuisance and annoyance has been caused to the Company and its customers, and that such activities were engaged in to coerce the Company to employ as electrical workers, members of the Union. It is stated that the consequences to the Company of such activities are very serious financially and otherwise, and that the defendants will continue their activities unless restrained by order of the Court.
In these circumstances, the Company seeks:
(1) A declaration that no trade dispute exists in furtherance of which it might be lawful for the defendants to watch, beset, or picket the Company’s premises at Ardmore, Bray, Co. Wicklow;
(2) An injunction to restrain the defendants and all of them from attending at or near these premises for that purpose and from disturbing the Company in the conduct of its business and from interfering or attempting to interfere with the Company, its employees, customers, invitees and the like.
The defendants in their amended defence having traversed a number of the allegations of fact set forth in the statement of claim and having denied that there is no trade dispute in existence, state that their activities are lawful by reason of the provision of s. 2, sub-s. 1, of the Trade Disputes Act, 1906, and they rely in particular on the facts set out in paras. 7 and 8 of the amended defence as supporting this contention. In these two paragraphs it is alleged that in the year 1959 it was agreed between the Company and the Union (with the consent of the Irish Engineering Industrial and Electrical Trades Union) that whenever the Company required labour for employment on electrical work at the studios they would apply to the unions for the necessary personnel and that such persons would be drawn from a seniority list of the members of the unions. It is stated that the seniority list consisted of members of the unions who had first been selected as suitable for the type of work which the Company would require to be done from time to time at the studios in connection with film production, and that this list was revised by the Company and the unions from time to time. As from 1961 it is said that the seniority list was in fact composed entirely of members of the Union. It is alleged that persons were supplied to the Company from the seniority list as required and when requested. The defendants then plead that the Company, in breach of the arrangements made and agreed upon, failed to employ electricians from the seniority list, or any other members of the Union for the purpose of the production of a film known as ‘Of Human Bondage,’ production of which started on or about the 25th February, 1963. They plead that this was a breach of the agreement and rely upon this fact as the foundation of the argument that a trade dispute within the meaning of the Trade Disputes Act, 1906, exists, and that their actions are accordingly lawful.
In their reply the Company makes specific answer to the allegations regarding the agreement referred to in the statement of claim, and says that the said arrangements, if made, were made in consequence of an agreement in writing, dated the 1st January, 1959, made between the Company and the Trade Unions’ Studios Committee, composed of the signatory unions, including the defendants’ Union; that that agreement was terminated on the 31st March, 1962; that by reason thereof there was no agreement in force at the date of the alleged trade dispute of which a breach could be relied upon as the basis of such a dispute.
This outline of the allegations pleaded gives a general picture of the situation, as it stood on the 25th February, 1963. For the purpose of forming an accurate picture of the situation it is necessary to refer briefly to the agreement of the 1st January, 1959. It is unnecessary to refer to the entire agreement, but I should refer to its effect in a general way in so far as it is relevant to this action.
The agreement was made between the Company and the Trade Unions’ Studios Committee which was composed of certain unions and affiliated unions referred to in the agreement, and amongst whom there appears: 1, the Electrical Trades Union (Ireland) and 2, the Irish Engineering Industrial and Electrical Trades Union.
The agreement is to commence on the 3rd April, 1958, and it is determinable after the 30th September, 1959, by either party on giving three months’ notice to the other party. By the agreement the Unions’ Studios Committee and the affiliated unions agreed to a central agency for persons required for work by the Company at its studios. The agency was to be comprised of representatives of the unions, and it was specified that whenever labour was requested by the Company their representatives would inform their members who in turn would apply for the work. The agreement also contained provision that nothing therein would (1) restrain the Company from terminating the employment of members of the Union; (2) abrogate from the right of the Company to deal in its discretion with all matters relating to the engagement and dismissal of members having regard to the seniority of service, provided all other things were equal; and it was expressly provided that the Company would be at liberty to employ persons for any grade of work if labour of a suitable nature was not available from the Irish Transport and General Workers’ Union or any of the unions mentioned in the agreement. The agreement also contained provisions as to the settlement of certain disputes, to which it is not necessary to refer in detail.
I have already referred to the provision relating to determination of the agreement. By notice in the form of a letter, dated the 1st January, 1962, G. Lynch, as general secretary of the Union, notified the Company of the termination of the agreement in the following terms:
‘In accordance with the agreement entered into, arising out of our recent dispute, I am instructed by the executive council to inform you that as from this date, that the existing studios agreement be terminated in accordance with clause 11 of the agreement.
Further I am to request that a meeting be held, to open discussions on a new agreement, on Tuesday, 9th January, 1962, at 11 a.m.’
It appears that a list of workmen, known as the seniority list, who would make themselves available for work at the studios as and when required in accordance with the nature of the work being done at the studios at any particular time, was prepared and agreed upon between the Company and the Union. This list was revised from time to time and men were drawn fron this list when the Company sought electricians for work at the studios. Subsequent to the termination of this agreement, negotiation took place with a view to arriving at a new agreement, but none was agreed upon.
From March, 1962, to February, 1963, when difficulties arose between the parties, five major films were produced at Ardmore Studios. On the first, called ‘The Very Edge,’ there were employed eight electricians and one gaffer. On the second eleven electricians were employed. On the third, eleven electricians were employed; on the fourth, ten electricians; and on the fifth, twenty-two electricians. These electricians were sent by the Union and no other electricians were employed. In January, 1963, after some negotiations had been in progress, the film, ‘Of Human Bondage,’ was about to start on production at Ardmore Studios. This film was sponsored by Seven Arts Productions, an English concern, who intended bringing nine electricians from England to work on the production. In addition to these electricians, they required nine more electricians whom they intended to recruit from Irish sources. Correspondence was entered upon regarding the employment of these nine English electricians and as the dispute which arose has its basis in this correspondence I will read it in full. First, there is a letter of the 21st January 1963, from Ardmore Studios to the General Secretary of the Union which reads:
‘Production “Of Human Bondage.”
I wish to apply on behalf of Seven Arts Productions Ltd., who are producing the above mentioned picture, for nine electricians to operate that production, which will commence on or about February 18th, 1963.
Yours faithfully,
Ardmore Studios (Ireland) Ltd.
Signed. J. Collins.’
There followed a number of letters, all dated the 23rd January, 1963, the most important of which reads:
‘I acknowledge receipt of your letter dated 21st inst., applying on behalf of Seven Arts Productions Ltd., for nine (9) electricians to be available on or about 18th February, 1963.’
That letter was signed by G. Lynch and addressed to Mr. Collins at Ardmore Studios. The next letter, written by Mr. Lynch to Mr. Collins, was dated the 24th January, 1963, but was not received by Mr. Collins until the 29th January, 1963. That letter reads:
‘Further to my letter of the 23rd inst., acknowledging receipt of application to supply 9 (nine) electricians on the 18th February, 1963, the executive council direct me to inform you that arrangements are being made to supply all the electricians required for the filming of the picture “Of Human Bondage.”‘
From the terms of that letter it is clear that at that stage the Union were claiming the right to supply all electricians required for the production of the picture. On the 30th January, 1963, Mr. Collins replied to the letter of the 24th January as follows:
‘re. “Of Human Bondage.”
I have received your letter which although dated the 24th inst., only arrived the 29th inst. As you know, my letter of the 21st inst., inviting the nomination of nine electricians was sent to you in courtesy only.
It was imperative that I received an immediate and unqualified reply since it was a matter of urgency to make arrangements for the commencement of works on the production. In the absence of a prompt and satisfactory reply from you there was no alternative but to engage other electricians who are, of course, within the agreed group of unions. In these circumstances, we are unable to renew our invitation to your Union.’
That letter clearly indicates that the Studios did not intend to employ electricians supplied by the Union, and we know that in fact the Irish electricians who were employed came from the members of the Irish Engineering Industrial and Electrical Trades Union.
The next letter is dated the 8th February, 1963, and is from Mr. G. Lynch to Mr. Collins and reads:
‘Production of “Of Human Bondage.”
Further to your letter of the 21st ultimo requesting to supply 9 electricians on behalf of Seven Arts Productions Ltd., and our acknowledgement on the 23rd ultimo, I am instructed to advise you that we are now in a position to supply 9 electricians from the seniority list, as heretofore.’
At this stage the Union had agreed to supply 9 electricians and would appear to have been retreating from the attitude that they should be allowed to supply all the electricians required. The reply to this letter from Ardmore to G. Lynch, dated the 9th February, 1963, read as follows:
‘We have received your letter of the 8th inst. The contents are quite surprising having regard to your letter of the 24th ult., our telephone conversation and our reply of the 30th ultimo.
We have nothing further to add to our letter to you of the 30th ult.’
This letter shows that Ardmore Studios were taking up the attitude that they would employ electricians who were members of the trades union group referred to, but would not confine themselves to the members of the Union. The letter from the Union to Ardmore Studios, dated the 19th February, 1963, was in the following terms:
‘The executive council have considered your letter of the 30th January, 1963. It was decided that this is a breach of the mutually agreed arrangements for the supply of electricians to the Company in accordance with our seniority panel.
Due to this, the executive council have now decided that this matter is in official dispute with your Company and reserves the right to take whatever industrial action is deemed necessary.’
This makes it obvious that at this stage the Union was taking up the attitude that the Company was in breach of an agreement which was alleged to exist and which confined the supply of men for the studios to men to be taken from the seniority list. By letter of the 20th February, 1963, the Company denies that any such agreement existed. Finally, Mr. Lynch wrote the letter of the 22nd February, 1963:
‘I acknowledge receipt of your letter of the 21st instant. The Company’s record of the employment of electricians since its commencement will prove that members of this Union were recruited by the Company. Further, reference to the Company’s productions for the past few years will show clearly that the Company have recruited electricians strictly in accordance with a seniority list, which was mutually compiled on the basis of their service with the Company. Accordingly, the statement made in your letter that the decision of the executive council is without justification is not correct.’
At this stage it was clear that the issue between the Union and the Company was whether or not there had been agreement to employ electricians from the seniority list only and no others. The Company had already recruited men from the Irish Engineering Industrial and Electrical Trades Union to fill the nine places which were vacant. Later a picket was placed on the studios. This picket consisted of members of the Union who were on the seniority list of members of that Union and who would have been employed if recruitment of labour from that list had been followed.
From the correspondence and from what transpired at the hearing of the action it is evident that the bones of contention between the parties were:1, whether the seniority list validly existed; and 2, whether there was agreement between the Company and the Union that only men who were on the list should be employed whenever vacancies occurred at the studios for electricians.
There was, I should say, a certain background to all this. The English Electrical Trades Union had endeavoured to stipulate that its members should be employed on the making of the film, ‘Of Human Bondage.’ They had done the same in connection with the film, ‘The Ballad of the Running Man.’ After considerable negotiations between the interested parties, a compromise was agreed upon and it was agreed that labour would be recruited as to fifty per cent from the English union and fifty per cent from the Union. I need not consider the background further.
From this state of facts certain disputes of law are said to arise. The plaintiffs in the first instance say that this disputeif any really existedwas between the Union and the Company; that no workmen are involved; that the Union is not acting on behalf of any specified workers or members of the Union; and that the Union is not acting on behalf of any person employed by the Company. It is further asserted that even assuming that a dispute did exist, it was not a dispute of the type contemplated by the definition section of the Trade Disputes Act, 1906. The plaintiffs also say that before you can have a dispute within the meaning of that Act, there must be in existence a real dispute between employer and employee; that there cannot be a real dispute on invented facts; and they allege that there was no agreement in existence regarding recruitment of labour from the seniority list, and that accordingly, there was no arrangement that could have been broken. They say that, in these circumstances, it was not open to the Union to compel the Company to employ their members only and that, accordingly, they could not raise a dispute if the Company failed to do so. Finally, the plaintiffs say that any dispute which did exist was manufactured, and not such as would make it lawful to picket its studios.
Counsel for the Company rely in particular on the decision in Ryan v. Cooke and Others (1) and Doran v. Lennon and others (2) in support of their claim in this action. In both these cases it was held that no trade dispute within the meaning of the Trade Disputes Act, 1906, existed and on that account the picketing, of which complaint was being made, was held to be unlawful. The decision in these cases must now be read with the decision in the case of The Silver Tassie Co., Ltd. v. Cleary and Others (3), with which I will deal at a later stage.
The Union and the defendants counter this argument by submitting that a trade union can legitimately dispute on behalf of its members with an employer even though there is no dispute between that particular employer and any of his employeeswhether trade union members or notat the time. They say, for example, that in this case the dispute is being raised by the Union on behalf of the men on the seniority list and that such a dispute can exist notwithstanding that none of the men are employed at the moment of dispute. They say that this dispute was made on behalf of the men on the seniority list. It is also submitted that the existence or non-existence of a trade dispute does not depend upon whether the facts, upon which a dispute is raised on behalf of the Union members, are in fact well founded or not. That is to say, that although a court would not necessarily find the facts to be as the Union alleges, it is sufficient if there is a genuine belief on the part of the Union that a state of facts exists which creates a dispute between the Union, acting on behalf of its members, and the particular employer concerned. They say that when there is a dispute between workmen, acting through their Union, and an employer, it is a dispute within the Act. I should say that the differences between the English and the Irish Union had been settled up, but the defendants say that a dispute did exist between the Company and the Union as to the employment of the remaining nine Irish electricians.
I should here refer to the definition of a trade dispute as set out in the Trade Disputes Act, 1906, which is as follows: ‘. . . any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour, of any person, and the expression “workmen” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises.’
It is noteworthy that this section covers disputes as to the non-employment of any person and that the expression, ‘workmen,’ covers persons employed in a trade or industry not in the employment of the employer with whom the trade dispute arises.
I should also refer to s. 2 of the Act which reads:'(1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working.’
In this case I am not concerned with the latter part of s. 2, but it is of significance on the first point that has to be decided that picketing may be lawful if done on behalf of a trade union, which carries at least some implication that the Legislature regarded trade unions as bodies with whom disputes may arise, but I would consider that taken in conjunction with the definition of a trade dispute it must be shown that the union is acting on behalf of its workmen members. In so far as this Court is concerned, the first point
is I think concluded by my own decision in Brendan Dunne Ltd. v. Fitzpatrick (1). That case was decided in favour of the plaintiff on the basis that the method of picketing was unlawful, but a question as to whether a trade dispute existed was also decided and I held that it did.
The facts relevant to this second issue were (I quote from the headnote):’Prior to the year, 1956, B.D. carried on the business of an interior decorator, furniture designer, and furniture salesman in premises at Dorset Street, Dublin. He employed a staff who were paid a basic wage and, in addition, received a bonus calculated on the yearly profits of the business. About the month of May, 1956, the employees suggested to B.D. that the premises should remain open after the usual business hours on Thursday evenings each week for the purpose of facilitating the public, and with a view to improving business. B.D. agreed to the suggestion and thereafter the premises opened for business on Thursday evenings from 7.30 p.m. to 10.0 p.m. In the year 1956, the business was transferred to premises at Dawson Street, Dublin, and later in that year the plaintiff Company was incorporated and continued to trade at these premises. The arrangement as to late hours of trading on Thursdays was continued. The first-named defendant, as secretary of the Irish Union of Distributive Workers and Clerks, by a letter addressed to the Company, requesting that the practice of late opening for business on Thursdays be discontinued. The company refused to comply with the request, whereupon large numbers of persons, members of the Union, grouped together, and marched or paraded in Dawson Street and other streets in the neighbourhood on Thursday evenings when the premises were open for business until 10.0 p.m.’
Now in that case none of the employees of the plaintiffs were in dispute with their employer and it was the union of which the defendants were members who had raised such disputes as existed, though no doubt acting on behalf of their members working in allied trades to that of the plaintiff. At page 36 of the report, I said:’In order to obtain the protection of the Trade Disputes Act, 1906, the defendants must show that their actions were justified as being done in contemplation or furtherance of a trade dispute within the meaning of the Act and did not exceed what is permitted by the Act. The term, “trade dispute,” is defined in s. 5, sub-s. 3, of the Act and in so far as is relevant to these proceedings it means any dispute between employers and workmen or between workmen and workmen connected with the terms of employment or with the conditions of labour of any person.
The expression, “workmen,” means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises. The dispute relied on by the defendants was a dispute between the Union acting on behalf of its members, including the defendants, as workmen, on the one hand, and the plaintiff Company and its employees, on the other hand, they being employers and workmen, respectively, within the meaning of the definition. A contest arises between the parties, however, as to whether, as the plaintiff Company says, the dispute was as to the hours of trading of the Company, or, as the defendants say, it had to do with the terms of employment or the conditions of labour of the plaintiff Company’s employees.’
I decided that the picketing was excessive, but in the course of the case the question arose as to whether a trade dispute existed. I decided that it did, notwithstanding that none of Mr. Dunne’s employees were in dispute with him and that it was the Union which raised the dispute on behalf of workers employed in allied trades. Having found that the dispute related to the terms of employment of the Company’s employees, I said (at p. 43):’It follows that the dispute relating to the attendance of the plaintiff Company’s employees on the Company’s premises on Thursday evenings to work after the usual trading hours between the defendants, or the Union acting on behalf of its members, on the one hand, and the plaintiff Company’s employees, on the other hand, is a trade dispute within the meaning of the Act. The existence of a trade dispute involves the right to picket, but it still remains to be decided whether or not the particular form of picketing adopted by the defendants was justified under the provisions of the Act.’
My decision on that case amounts to a finding that a union, acting on behalf of the workmen members, not employees of the particular employer with whom a dispute arises, can validly create a dispute with such an employer so that it falls within the definition of a trade dispute within the meaning of the Act. I am unaware of an Irish decision to the contrary and, what is more, I venture to think that the view which I then formed is supported by certain observations of members of the Supreme Court in other cases.
In Smith and Another v. Beirne and Others (1) in the course of a judgment, dissenting on other matters, the present Chief Justice adverted to the point in issue. I should make it clear that the decision of the Supreme Court was that no valid trade dispute existed, but at p. 38, O’Dalaigh J. (as he then was) said:’Finally, with regard to s. 2, sub-s. 1, of the Act of 1906, the sub-section made it lawful “for one or more persons acting on their own behalf or on behalf of a trade union . . . in furtherance of a trade dispute” to picket peacefully. The employees of the Club in picketing the Club premises could not be said to have been acting on their own behalf; they were not a party to the trade dispute but rather in a sense were the subject-matter of the dispute, which was between their Union and the Club. But it was claimed they picketed on behalf of their Union. That claim was valid as the letter of 16th September, 1952, from Mr. Beirne, the general secretary of the Union, showed. The Union had among its membership persons who were not”workmen” within the Act of 1906. Accordingly, a question arose whether such a Union speaking on behalf of its members,”workmen” and non-workmen alike, could raise a trade dispute. His Lordship was of opinion that it could, in that its”workmen” members in themselves satisfied the requirements of the statute that “workmen” be a party; that the Union also spoke on behalf of others who were not “workmen”was, in his Lordship’s opinion, of no moment.’
Those words I think support the view I took in Dunne v.Fitzpatrick (1). Again, in Esplanade Pharmacy v. Larkin and Others (2) the Supreme Court held that there was no valid dispute in existence since the dispute then alleged to be a trade dispute was a matter concerned with the employers’ business rather than the employee’s conditions. Mr. Justice Lavery, at p. 292, said:’I accept that the parties to this dispute were the plaintiff Company, on the one hand, and the Union, acting on behalf of workmen engaged in the trade, on the other.
The learned Judge in the course of his judgment said:”You cannot have, under the Act, a dispute between a union, solely on the one side, and the employers on the other. There must be employeesworkmeninvolved in the dispute, otherwise than merely as being members of the union.” The appellants submit that the learned Judge was wrong in this.
It is unnecessary to consider whether in other circumstances a union could raise a trade dispute as, in my opinion, in the present case there was evidence that the Union did so on behalf of workmen members, and I have no doubt that, so doing, a dispute arose between workmen and an employer and that this dispute might be a trade dispute if it otherwise satisfied the meaning of the expression. I think the learned Judge in the passage quoted may have been regarding the Trade Union as involved in a dispute between employers and not on behalf of its workmen members, and so understood I agree with his view.’
The quotation, I think, also supports the view stated in Dunne v. Fitzpatrick (1) assuming, of course, that the union is acting on behalf of its workmen members.
I also refer to the observations of Mr. Justice Murnaghan in the course of his judgment in Sherriff v. McMullen and Others (2), when he said:’There may, I think, be occasions on which members of a trade union may have a trade dispute with an employer although none of the latter’s employees is a member of the union; but it is not every dispute with a trade union which is a trade dispute.’
The evidence adduced satisfies me that the Union was acting on behalf of its members in raising the issues which it did with the plaintiffs, and in the view of the law that I take the fact that the Union raised the dispute does not prevent the particular dispute from coming within the provision of the Trade Disputes Act, 1906, so as to justify and protect picketing, provided that the nature of the dispute was such as brought it within the scope of the Act.
I should say on this aspect of the case that I fully accept the statement of Mr. Lynch, the secretary of the Union, that there were several meetings with the men who were kept fully informed at all times. Even apart from that evidence it is, I think, self-evident that the Union was acting on behalf of those of its members who were on the seniority list. Who else could it in all fairness be said to be acting on behalf of? I am satisfied that the men on the seniority list could, and did, raise a trade dispute within the meaning of the Act. That disposes of the first point relied upon by the plaintiffs.
I now turn to a consideration of the law as to what constitutes a genuine trade dispute within the meaning of the Act.
First, I wish to refer to an observation of Mr. Justice Lavery, in Quigley v. Beirne and Others (3) which, I believe I am right in saying, shows that the Trade Disputes Act, 1906, permits actions, which I assume would include picketing, in cases other than those where strictly contractual rights are concerned. He said, at p. 76:’The Trades Disputes Act, 1906, is designed to permit within carefully defined limits certain actions to secure recognition of extra-legal claims of a particular nature and to bring pressure to bear on employers to observe certain principles and standards which the law does not impose.
Trade disputes may involve matters of legal right but ordinarily they are concerned with other matters. Where contractual or other legal rights are concerned the Courts are the appropriate place for their enforcement.
In so far, therefore, as the learned trial Judge has based his conclusion that there was no trade dispute in existence because no legal right has been impinged he is in my opinion wrong.’
If I construe the learned Judge’s statement correctly it would seem to me to have an important bearing on the issue I am dealing with, where part of the contention of the plaintiffs is that no agreement existed between the Union and the Company on the breach of which a dispute could arise. What was said would seem to indicate that the absence of a legally enforceable agreement would not put the claim of the Union outside the ambit of the Act.
There were, however, certain portions of the judgment of the Supreme Court in the case of the Silver Tassie Co., Ltd. v.Cleary and Others (1) which have an important bearing on the question as to what may constitute a trade dispute within the meaning of the Act.
To give the background I refer briefly to the facts as summarised in the report:
‘Alexander James Pinkerton was the managing director of the plaintiff company. He wished to take a more active part in the business and decided to become a working official of the company in the bar. He thereupon dismissed one of the employees McK. His reason for doing this was because, as he had entered the business himself, redundancy would result. The Union objected to the dismissal and stated that Mr. Pinkerton was victimising McK. because of previous demands which the Union had made to him. They further alleged that Mr. Pinkerton was attempting to turn his house into a nonunion premises. The Union warned Mr. Pinkerton that if he did not re-instate McK. they would picket his premises. Mr. Pinkerton refused to accede to their request.
Shortly afterwards the Assistant Secretary of the Union visited the premises. He called the employees out. Each denied that they had any dispute with Mr. Pinkerton but Cleary continued to call them out. Under protest they left and commenced picketing.
The company obtained an interlocutory injunction on the grounds that the Union had based their dispute on alleged victimisation, no victimisation had been shown to exist, therefore there was no dispute. The following morning members of the Union again called at the Silver Tassie; they demanded McK’s re-instatement. This was refused; they commenced to picket once more and by reason of this the company obtained a further injunction. Walter H. Beirne, Secretary of the Union, admitted in evidence that the Union at all times were disputing the dismissal of McK.’
It was held, affirming the judgment of the High Court, ‘that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather on the bona fides of the parties to the dispute. To hold that there cannot be a dispute about the existence of a state of facts unless the Court has first found that such a state of fact exists would be to remove from the protection of the Act a large number of disputes and to impose on the definition of a trade dispute a limitation not found anywhere in the Act.’ The judgment of the Court was delivered by the Chief Justice, who, at p. 31 of the report, says:’The principal argument upon which the plaintiffs based their case in the Court was that the belief by the defendants in the existence of a state of facts which induced them to cause a dispute does not make such dispute a ‘trade dispute’ within the meaning of the 1906 Act, unless the Court finds the facts to be as the defendants believe them to be, or to put this in another way, the Act cannot give protection to this dispute unless the Court finds as a fact that the dismissal of McK. was an act of victimisation by the plaintiffs and that their purpose of so dismissing him was to turn the Silver Tassie into a non-Union house. No authority was cited for this proposition, but it was argued that unless the Court finds that the reasons put forward for the dispute are well founded, the defendants were being allowed to be the judges in their own cause.’
The Chief Justice also referred to the case of Conway v.Wade (1) in the following passage which also appears at p. 31:’ Conway v. Wade (1) is authority for the proposition”that a mere personal quarrel or grumbling or an agitation will not suffice; it must be fairly definite and of real substance”:per Lord Loreburn L.C., at p. 506. Further than this the cases have not gone. The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on the bona fides of the parties. The Court took the view that to hold that there could not be a trade dispute about the existence of a state of facts unless the Court had first found that such a state of facts existed would be to remove from the protection of the Act a large number of disputes and to impose on the definition of a trade dispute a limitation not found anywhere in the Act.’
Finally, I wish to refer to what the Chief Justice said, as it appears at p. 32 of the report:’The Court thought that the trial judge was right not to determine the issues between the Union and the plaintiff company; it was sufficient that he should be satisfied that the dispute between the parties was bona fide. The Court was of opinion that the dispute raised by the Union was H. McK’s dismissal and the refusal by Mr. Pinkerton to re-instate him. It may well be that the matters of victimisation and the alleged attempt to turn the Silver Tassie into a non-Union house were the motives which led the defendants to raise the dispute but the trial judge looked upon those two issues for one purpose and one purpose only,i.e. to ascertain whether the dispute was a genuine one or not. He found that the dispute was bona fide and in that the Court took the view that he was right.’
‘The Court was of the opinion that the finding and order of Mr. Justice Dixon, in which he dismissed both actions, ought to be affirmed and in the circumstances of the case the Court did not think it necessary to express any view on the point as to whether a dismissal simpliciter was sufficient to constitute a dispute to gain the protection of the Act of 1906 and no more.’
From what was stated in this judgment I draw the conclusion that what I have to determine on the facts of this case is not whether there was in law a mutually agreed arrangement of a binding nature for the supply of electricians to the Company in accordance with the seniority panel, but rather whether there was on the part of the Union a genuine and bona fide belief that such an arrangement existed. This involves also, of course, considering whether or not the Union was in reality inventing facts on which it could be stated that a dispute existed.
I do not then propose to make a finding on the difficult question as to whether there was all agreement binding in law between the Union and the Company but rather to confine myself to the issue as stated above. I shall next refer to certain portions of the evidence which seem to me to be relevant on this point.
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.
Mr. McConway gave evidence on behalf of the defendants. He is the secretary of the Dublin District of the Union. He gave the Court particulars of the seniority list which I need not repeat. He said that he drew up a list in December, 1961, and that it was checked by Mr. Collins on behalf of the Company by phone. He said that Mr. Collins would phone for men as they were required, and men would be supplied as of the order of the seniority list. He said that there had not been any departure from that list prior to the dispute: that there had not been any refusal to take men from the seniority list until the dispute: that there was nothing to prevent English electricians trade union members from going on it; that members of the Engineering Union could go on the list; that after the letter of the 9th February, 1963, the dispute was as to the men on the seniority list not being employed.
On cross-examination he said that it would have been a breach of the 1959 agreement to employ men other than those in the group of affiliated unions: that the seniority list did not form part of the 1959 agreement. He agreed that but for this agreement, Ardmore could employ whom they liked. He also gave evidence that the Engineering Union was aware of the seniority list. He agreed that the first dispute in 1963 was about English union men, and again, that their coming on to the list would have been considered a breach of the agreement about the seniority list. He referred to the discussion regarding retention fees in connection with the seniority list
and stated that this showed that the existence of the list and of an agreement in respect of it was recognised by the Union and Ardmore. He also said that the settlement with the English Electrical Trades Union was arrived at for the purpose of preserving the position of some of the Irish members on the seniority list. It had been decided to allow in more members of the English Union rather than cause a loss of future employment.
Mr. Collins, studio manager for the Ardmore Studios, gave evidence on behalf of the plaintiffs, some of which is relevant to this part of the case. He acted on behalf of the studios in dealing with the Union. He agreed that a panel system operated from October, 1958, and said that the seniority list became established and worked from April, 1958, to January, 1961, and crystallised into a list of twenty men who made up a pool from which men could be drawn at short notice. He said that when this list was established with a membership of twenty all these men were members of the Electrical Trades Union (Ireland). He agreed that the men recruited for pictures made from March, 1962, to February, 1963, all came from the seniority list and that no other source of labour was looked to. He did not suggest that any other arrangement was made with the Union. He agreed that when reference was made to the requirement of nine men in the letter of the 21st January, 1963, the letter was intended to refer to the taking of men who were on the seniority list, and he would have taken all the eighteen electricians required for the film, ‘Of Human Bondage,’ from the Electrical Trades Union (Ireland) but for the pressure from England. He also said that there was no undertaking by him to honour the seniority list, but I think it is right to say that the actions of the Company never showed that it did not recognise an undertaking as to that list. He also said that the Company were not using the situation which arose with the English unions as an excuse to break with the Electrical Trades Union (Ireland) but that the reason for making arrangements with the English union was that the Studios could not afford to loose the production.
Apart from the oral evidence of witnesses certain important documentary evidence exists which aids me in arriving at a conclusion on this part of the case. Firstly, there is the letter, dated the 9th April, 1962, written by the general secretary of the Union to the Minister for Industry and Commerce. This letter was written as a result of an earlier meeting and the following passage should be quoted:’Subsequently another British film commenced in Ardmore Studios and we were informed by the producer, Mr. Lukwell, that he had had to give a guarantee to the British Electrical Trade Union to employ an electrician in Ireland. This we cannot agree to as we have a seniority list and an agreement with the Studios in an attempt to establish continuity of employment there.’ This clearly shows that the general secretary considered his Union as having a seniority list, and an agreement with the studios whereby it was agreed that such men as were required for employment would be taken from the list. A copy of that letter was sent to the Studios through Mr. Collins and its contents were never refuted by or on behalf of the Studios.
Secondly, the letter of the 28th June, 1962, written by Mr. Collins, on behalf of Ardmore Studios to Mr. Lynch, general secretary of the Irish Union, is of importance. The contents of the letter are as follows:
‘Re. Production”The Very Edge.”
At a pre-production meeting in London the producer of the above film, scheduled to start at Ardmore on the 9th July, was informed by the E.T.U. that they would require him to employ one electrician from England. This is to be the total and final demand by that Union on this production.
In conversation with Mr. McConway I was told the decision of your executivethis is that any electrician coming from England must first be approved for temporary membership of E.T.U. (I.) and on approval will be placed at the bottom of the seniority list at Ardmore.
I conveyed this to the production manager of the film in London with my own request that he speak to the appropriate officials in order to clear the matter. This he did but no alteration was made in the decision of the E.T.U.
The ultimate position will be that if an electrician comes from England he will not be able to work as only eight electricians will be needed and his name would not be reached on the list. The producer feels strongly on this as he will not pay a man’s wages and living allowance and not be allowed employ that man.
I am placing these facts before you in the ardent hope that your executive will take some immediate action in the matter. It is not improbable that Mr. Stross, the producer, could withdraw the film from Ardmore and I think you will appreciate that this action would be disastrous for us.’
It will be noted that in that letter it is stated that the English electrician ‘will be placed at the bottom of the seniority list at Ardmore.’ In that letter Mr. Collins recognises the existence of the seniority list. It was suggested to Mr. Collins that his letter recognised the existence of an agreement and an obligation to draw from the list and that he was seeking a relaxation of an existing agreement. He agreed that the letter could be construed in that way.
The letter of the 16th July, 1962, from Mr. Collins to Mr. McConway refers to a revised draft of a new agreement with the Electrical Trades Union (Ireland). I refer to para. 4 of the draft agreement to which this letter referred which sets out at ‘(a) The Union undertakes with the Company to supply labour at Ardmore Studios (Ireland) Ltd. in accordance with the seniority list now in existence.’ The letter of the 16th July which accompanied the draft agreement did not deny that a seniority list was in existence.
Again, there is the letter of the 1st September, 1962, written by the general secretary to Mr. Collins of Ardmore Studios. It reads as follows:
‘The Ballad of the Running Man.’
‘Further to the correspondence and meetings which have passed between us regarding the supply of electricians for the above picture I am instructed by the Executive Council to write you as follows:
Discussions took place on the 30th ult. with representatives of the English E.T.U. on this matter. They proposed that we agree to allow nine of their members to work at the Studios, on the production of the above picture, and that they would submit proposals to cover all future contingencies, regarding the working arrangement covering membership of both unions working in either country. These proposals, as you will understand, are at variance with our agreements with you to supply electricians for all pictures produced at the Ardmore Studios.
Further, we trust you will appreciate that we have endeavoured, since the establishment of the studios, to meet your requirements at all times. If there is any attempt made to allow other than electricians, members of this Union or the I.E.I. & E.T.U., to work at the Studios, I am to say that it may automatically create an industrial dispute between Ardmore Studios and this Union.’
That letter clearly refers to an agreement in existence with the Studios for the supply of electricians from Union members for production at Ardmore. If no such agreement existed one would have expected that Mr. Collins would have seen the importance of replying to the effect that no such agreement was in existence. He did not do so. Finally, the letter of the 21st January, 1963, requested that nine men be supplied, and Mr. Collins agrees that this letter was intended to refer to 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.”
Following this judgment on the 30th July, 1963, an order was made by Mr. Justice Budd dismissing the action.
A considerable part of this judgment deals with the law as to what constitutes a trade dispute and as to the circumstances in which a union or its members are entitled to the protection of the Trade Disputes Act, 1906. With Mr. Justice Budd’s decision on the law, as expressed in his judgment, I respectfully agree, and as to his findings of fact I certainly see no reason to differ.
It is necessary now to determine what were the facts and circumstances following the dismissal of the action.
Captain Justin Collins in his evidence stated that the result of the action worsened the business of the Company which got no further work from any British production companies as they were apprehensive about the labour problem. The first step the Company took consequent on the judgment was to reduce its permanent staff. Captain Collins, himself, the general foreman and the chief electrician were given three months’ notice of dismissal, expiring on the 31st October, 1963. They were kept on on a temporary basis and during the month of Augustand perhaps into September no production work was done in the studio except a few small commercial films. The outlook for the Company was that the business of the studio had come virtually to a standstill.
The cause for the standstill was apparently the opposing pressure of forces operating from the British Electrical Trade Union, on the one side, and the Electrical Trade Union (Ireland), on the other. The pressure imposed by the latter was its insistence that all its members whose names were on the seniority list must be employed on the production of films in the studios before any others were employed and if this pressure was not yielded to that picketing of the studios, with the usual consequences, would be adopted. The pressure from the British Electrical Trade Union was exerted on the Company through the British producers. The British union catered not only for electricians employed on the production of films, but also for electrical staff, projectionists, etc., employed in the business throughout Britain, and so were in a position to prevent the exhibition in Britain of films produced in the Ardmore studios if British electricians were not employed in the production. These opposing pressures, as I have said, brought the business of the Company virtually to a standstill and gave rise to a conference, which was held in the Department of Industry and Commerce some time in the month of September, 1963. It was attended by officials of the Department, directors of the Studios, including Mr. Collins, a representative of the British Film Producers’ Association, representatives of the British Electrical Trades Union and the Electrical Trades Union (Ireland), including Mr. George Lynch. I do not know who instigated this meeting, but I gather from Mr. Lynch’s evidence that the main purpose of the meeting was to see if the British union and the Irish union could come to some compromise which would make possible the production of films by British producers at the Ardmore studios and so enable the business of the Company to continue. According to Mr. Lynch the first offer of compromise came from the British side which agreed to reduce its requirements to fifty per cent; this was rejected by the Irish union which offered to permit a ten per cent British proportion of electricians. That was completely unacceptable to the British union, and the negotiations broke down and the conference ended. As Mr. Lynch said in evidence, “the British Electrical Trades Union had no intention whatsoever of departing from the fifty per cent and as a result the meeting broke up and nothing happened.”
On the 31st October, 1963, a receiver for debenture holders, Mr. William Sandys, went into possession of the Company’s studios and other mortgaged property and took over the management of the Company. He retained in the services of the Company Captain Collins on a short term basis until he would get another job, which he did in March, 1964. Mr. Sandys also re-employed the Company secretary, general foreman and chief electrician and a gardener/caretaker whose employment had been terminated by the Company on the same date. There was no administrative staff at that time, Captain Collins’s secretary having left to take up other employment.
The receiver was appointed under deed of appointment, dated the 31st October, 1963, on behalf of the Industrial Credit Company Limited, who were lenders under deed of mortgage and charge recited in the deed of appointment. These documents were in evidence and some of the terms in them will require to be dealt with later in the course of this judgment.
Some time after going into possession the receiver, as he was entitled to do, advertised the studios for sale as a going concern in papers overseas.
Some time in the early part of this year there was an approach made by a British producer about the production of a film. It never got further than an enquiry, but it seems to have prompted a letter of the 19th February, 1964, written by the Union’s solicitor to Mr. Sandys, as follows:
“re Ardmore Studios.
Dear Sir,
We have been informed that you have been appointed to act as receiver on behalf of the Ardmore Studios Company. Further we understand that arrangements have been made for the production of a film at the studios shortly.
Therefore we wish to claim that the obligations of the Ardmore Studios Company regarding the supply of electricians for the production of the film be arranged in accordance with the seniority list legally recognised by the High Court.
A reply to this letter is also requested for the next executive council meeting on Thursday, 20th February, 1964.”
This letter was not answered, and again, on the 28th February, the solicitors wrote to the secretary of the Company at its registered office in the following vein:
” re E.T.U. v. The Company.
Dear Sir,
We herewith enclose copy letter which we forwarded to the liquidator of the Company but to which, to our surprise, we have not received a reply. We would be obliged if you would please let me have the courtesy of a reply with reference to the contents of same.”
They wrote to the secretary again on the 12th March as as follows:
“Re Ardmore & E.T.U.
Dear Sir,
We are surprised that we have not received the courtesy of a reply to our letter to you of the 28th February. We are being pressed in this matter and would be obliged if you would please let us hear from you by return if possible.”
Mr. Sandys, in giving evidence, said that their letters were not replied to because at the time there was in fact no production of a film in prospect, the enquiry having gone off. This was, I assume, probably known to the Union because no further step was taken until its solicitor wrote again on the 25th May letters in identical terms to the secretary of the Company and to the receiver.
” re Ardmore Studios v. The E.T.U.
Dear Sir,
As you are aware we act on behalf of the Electrical Trades Union (Ireland) Ltd., 5, Cavendish Row, Dublin. We refer you to the Court order obtained in this matter by our clients, we now understand that it is intended to re-open the Studios and we have been directed by the executive council that our clients are prepared to supply the electricians, and to request a meeting with your representative as soon as possible. Due to the nature of the Court order a reply by return is expected.”
Earlier in the month of May the receiver had made arrangements with a British producer for another film to be made in the studios. This suited the efforts the receiver was then making to sell the studios as a going concern. To provide labour for the production Mr. Sandys, in his capacity as receiver, after negotiations, entered into a written agreement, dated the 26th May, 1964, with a group of unions. The unions comprised in the group were substantially the same as those comprised in the group covered by the group agreement of the 1st January, 1950; it included the Irish Engineering, Industrial and Electrical Trades Union, but it did not include the Electrical Trades Union (Ireland) who had opted out of that earlier agreement. In all other respects the two agreements are identical except, e.g., that the normal working week was reduced and the rate of wages increased in the new agreement.
At the time the new agreement was negotiated and entered into Captain Collins had ceased to be employed by the Company, having left the previous March, and up to the date of his leaving from the 30th July previous when the former action was dismissed there was no contact between Captain Collins and the Union or any of its members, except on the occasion when he attended the conference in the Department of Industry and Commerce in September, 1963.
The receiver replied to the letter of the 25th May by letter of the 27th May as follows:
“I am in receipt of your letter of 25th May and note what you state.
The Company is not carrying on business in the Studios but I, in my personal capacity as receiver, am endeavouring to do so. In these circumstances I do not consider that the Court order to which you refer is relevant at this time.”
Mr. Lynch then wrote to the receiver a letter, dated the 29th May:
“I refer to your letter to our solicitors, dated the 27th May, 1964, in reply to our claim for the supply of electricians for the production of films at Ardmore Studios.
I am directed to inform you that we claim that the electricians required to carry out the above work are employed in accordance with the seniority list as endorsed by the High Court.
Any failure to honour the seniority list will be regarded by my Union as a very serious matter and may give rise to industrial action.
As a reply to this letter is urgently required I shall be obliged for same by phone message on Saturday at 11 a.m. and confirmation by letter on Monday, 1st June, 1964.” And again, on the 30th May, the solicitors for the Union wrote to Mr. Sandys:
“Dear Sir,
A consultation was held yesterday arising out of your recent letter to us. Senior Counsel directed that we obtain a copy of the deed creating your receivership. We would be obliged if you would please forward the required copy by return.”
On the 2nd June the solicitors wrote to the receiver:
” E.T.U. v Ardmore .
Dear Sir,
We wish to acknowledge receipt of your letter dated the 27th ult. the contents of which we note. We are now placing this matter in the hands of counsel to prepare the proceedings necessary in this case.”
Then there was further correspondence as follows:
“W. Sandys, Esq.,
Receiver,
Griffin Lynch & Co.
26, Lr. Baggot Street,
Dublin 2.
4th June, 1964.
Ardmore Studios.
Dear Sir,
Our solicitors today received the copies of the documents which you agreed to furnish. The executive council of my Union has now received advice regarding your position as receiver, having regard to the terms of these documents, and it is to the effect that you are carrying on the business of Ardmore Studios (I.) Ltd. and employing labour at the studios, as the agent of that Company.
In these circumstances, my Union has been advised that the statements in the second paragraph of your letter of the 27th ult., to our solicitors, are inaccurate, and that, as receiver, you are obliged to honour the seniority list which was endorsed by the High Court decision given last July.
We have already notified you that we are prepared to supply the electricians you require from the seniority list. We are aware that on Tuesday last, notwithstanding our prior representation, you employed three electricians in disregard of this list, and in a telephone conversation with the writer to-day you declined to give any undertaking to respect the seniority list in the employment of electricians.
The position is that none of our members, who are entitled to employment by virtue of seniority on the list, and who are prepared to take up work at the studios, have been employed, although you were made aware that their services were available. This is a clear breach of the seniority list agreement, in respect of which my Union would have taken action before now, if the documents had been available which disclose what your position is in this matter.
The executive council of our Union, having considered all of the above mentioned, wish to inform you that this matter is in dispute. Accordingly, and without further notice, pickets will be placed at the studios on account of breach of the seniority list agreement.
Yours faithfully, G. Lynch, General Secretary.”
“Griffin Lynch & Co.
26, Lr. Baggot Street, DUBLIN, 2.
5th June, 1964.
Ref. WS./PmcN-1533.
George Lynch, Esq.,
General Secretary,
Electrical Trades Union of Ireland,
5, Cavendish Row,
Dublin, 1.
Dear Sir,
I am in receipt of your letter of the 4th inst. I have never been a party to the agreement in regard to the seniority list which was alleged to exist in the proceedings between you and Ardmore Studios (Ireland) Ltd. If such an agreement existed, it would certainly seem to have been terminated by the events which took place in Court.
However, it was my duty as receiver to make such new agreements as would be for advantage of the Company. As you are aware, I have repudiated existing agreements and entered into fresh contracts for any business proposed to be carried on. I find it difficult to see how it can be alleged that I am bound by any pre-existing arrangements in regard to a seniority list, even if you believe that such arrangements had existed prior to my appointment.
I would greatly deprecate any hasty action on your part, which I consider would not be in the interest of either party.
Yours faithfully, W. Sandys. Receiver. Ardmore Studios (Ireland) Ltd.”
“The Electrical Trades Union (I.) Ltd., 5, Cavendish Row, DUBLIN, 1. 10th June, 1964.
G.L./M.L.
Your Ref: W.S./PmcN1533.
W. Sandys, Esq.,
Receiver,
Griffin Lynch & Co.,
26, Lr. Baggot Street,
Dublin, 2.
Dear Sir,
I am in receipt of your letter of the 5th instant which I submitted to the executive council of my Union.
Notwithstanding the shape which the matter has now reached, I am desired by the council to point out, regarding certain statements in your letter, that nothing which took place in Court in the proceedings heard by Mr. Justice Budd could have the effect of terminating the seniority list agreement, also that this agreement has not been terminated in any other manner.
Yours faithfully, G. Lynch, General Secretary.”
In the course of this correspondence there was furnished to the Union copies of the deed of mortgage and deed of appointment of the receiver, and it appears from the evidence of Mr. Lynch that the executive of the Union having read these documents was advised, or advised itself, that the Union and their members were entitled to regard the seniority list agreement, as they allege it to be, to be binding on the Company and on the receiver and to entitle them to take the industrial action of putting a picket on the premises because, as they allege, the Company and/or the receiver were in breach of their agreement by not employing electricians from their list to work on the film which was then being produced. The electricians who were in fact employed were some from the Irish Engineering, Industrial and Electrical Trades Union and some, I think, British electricians.
Mr. Lynch also said that the other defendants discussed these matters with their executive and required their Union to take industrial action. He said further that the picketing was done to enforce the seniority list agreement. The picket was thereupon placed on the premises on the 9th June and remained on for some days until the interim injunction order was made by Mr. Justice Teevan.
I have already referred to the issue of res judicata raised in the defence. The further issues as presented in the argument before me may be shortly stated as follows:
The defendants contend that the seniority list agreement is still a valid and subsisting agreement and was at all times binding upon the Company, and, in the alternative, that the Union and the individual defendants bona fide believe that the agreement is a valid agreement binding on the Company, and that the action is one brought by this Company; and that the receiver, in accordance with the terms of the mortgage deed and deed of appointment, is merely the agent of the Company which is solely responsible for his acts. Accordingly they contend that the receiver is bound by the seniority list agreement, and in the alternative that the Union and the defendants have a bona fide belief that the receiver is so bound.
On behalf of the plaintiffs these contentions are rejected and it is submitted that, if there ever was an agreement as to the seniority list between the Company and the Union, this could not be held to continue to exist since the decision in the former action, and that there are no rational grounds for a bona fide belief in its continued existence. Is it further submitted that, even if it could be held to continue to exist as a valid agreement vis-a-vis the Company up to the date of the appointment of the receiver, the receiver was entitled to repudiate or to disregard such agreement; that it was not binding on him as receiver; that he was entitled to enter into the group agreement which he in fact did enter into; and that there could not be any rational ground for a belief that the so-called seniority list agreement was binding on him as receiver, and that such a matter is a matter of law and not of belief.
Mr. Justice Budd in his judgment said:”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 the men would be drawn from the seniority list and acted on that belief.”
I accept the decision of Mr. Justice Budd on the legal aspect of the case which he decided. I interpret his finding that there was (I quote) “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 . . .” to refer to the evidence that was given before him that from 1958 the Company and the Union acted on a form of list up to the date of the group agreement of the 1st January, 1961; that the list became operative again after the Union withdrew from the group agreement, and became crystallized with twenty names on it about December, 1961; and particularly that, whereas the Union in its letters to the Company had described these arrangements for the supply of electricians to the Company as an agreement, the Company had never repudiated the allegation that these arrangements did constitute an agreement; that the conduct of the manager, Captain Collins, was such that he, in effect, up to the time of the dispute giving rise to the earlier action, accepted the contention that there was such an agreement.
For myself I find it difficult to see how, having regard to its uncertain executory nature, this agreement could be held to constitute a legally enforceable contract. This view of mine does not detract from the finding of Mr. Justice Budd in regard to the dispute which he was investigating that there was a genuine belief on the part of the Union that such an agreement existed and that there were reasonable grounds for such a belief.
I have earlier in my judgment reviewed the facts and circumstances occurring since the determination of the former action. In the light of these my view iscertainly since the deadlock that resulted from the failure of the British and Irish unions to come to terms at the conference in September, 1963that there could not continue to be an accord or agreement between the Company and the Irish union as to the employment of electricians nor could there be any reasonable grounds for a bona fide belief in the existence of such an agreement.
After the conference the Union must have known that the deadlock would result in the Company being unable to undertake the production of further British films and that, consequently, there would be nothing left on which to operate the agreement.
This brings me to consider the effect of the appointment of the receiver on the relationship between the Company and the Electrical Trades Union (Ireland). On this aspect it is relevant first to refer to paragraphs 14 and 15 of the deed of mortgage and charge:
“14. The lender may at any time after the mortgage debt shall have become payable appoint by writing under its seal a receiver of the mortgaged property or any part thereof and remove any receiver so appointed and appoint another in his stead and the following provisions shall have effect:
(a) Such receiver shall in the exercise of his power authorities and discretions conform to the directions from time to time given by the lender.
(b) The lender may from time to time fix the remuneration of any such receiver and direct payment thereof out of the mortgaged property.
(c) The receiver shall be the agent of the borrower and the borrower shall be solely responsible for his acts and default and for his remuneration.
15. A receiver so appointed shall have power:
(a) to enter upon take possession of collect and get in the mortgaged property or any part thereof and for that purpose to take possession in the name of the borrower or otherwise as he may deem fit.
(b) To carry on or concur in carrying on the business of the borrower or any part thereof and in particular (without restricting the generality of the foregoing power) to employ and dismiss managers, agents, servants and others upon such terms and with such salaries wages or remuneration as he shall think proper and to pay out of the mortgaged property or the proceeds thereof for materials and machinery and things as he may consider necessary and (with the consent in writing of the lender) to raise money on the mortgaged property or any part thereof in priority to this security.
(c) To sell or concur in selling all or any part of the mortgaged property and to carry any such sale into effect by assuring the same in the name and on behalf of the borrower.
d) To make any arrangement or compromise which he shall consider expedient.
PROVIDED that nothing in this clause shall prejudice the right or power of the lender itself as mortgagees to enter into possession of the mortgaged property or any part thereof or to exercise the power of sale applicable hereto and other mortgagee powers hereby or by the Statute conferred.”
In pursuance of the powers contained in this deed the lender by deed of appointment appointed Mr. Sandys to be receiver and delegated to him the powers set out in para. 2 of the deed of appointment, which reads as follows:
“2. Delegate to the receiver the powers following that is to say:
(a) Power to enter upon take possession of collect and get in the mortgaged property or any part or parts thereof and for that purpose to take proceedings in the name and on behalf of the borrower or otherwise as it may seem expedient.
(b) To carry on or concur in carrying on the business of the borrower or any part thereof and in particular (without restricting the generality of the foregoing powers) to employ and dismiss managers, agents, servants and others upon such terms and with such salaries wages or remuneration as he shall think proper and pay out of the said mortgaged property or the proceedings thereof for materials and machinery and things as he may consider necessary and with the consent in writing of the credit company to raise money on the security of the mortgaged property or any part thereof in priority to the said recited mortgage debenture and deeds of further charge.
(c) To sell or concur in selling the mortgaged property or any part thereof and to carry any such sale or sales into effect on behalf of the borrower or otherwise convey the same to a purchaser.
(d) To make any arrangement or compromise which he shall think expedient in the interests of the credit company.
(e) To do all such other acts and things as may be necessary and expedient in pursuance of the powers conferred on the receiver by law and by the said recited mortgage debenture and deeds of further charge.”
There is also the proviso in the deed of appointment,”Provided always that the receiver shall for all purposes be the agent of the borrower and the borrower alone shall be responsible for his acts and defaults.”
It is also relevant to quote s. 316, sub-s. 2, of the Companies Act, 1963, which is as follows:
“A receiver of the property of a company shall be personally liable on any contract entered into by him in the performance of his functions (whether such contract is entered into by him in the name of such company or in his own name as receiver or otherwise) unless the contract provides that he is not to be personally liable on such contract, and he shall be entitled in respect of that liability to indemnity out of the assets; but nothing in this sub-section shall be taken as limiting any right to indemnity which he would have apart from this sub-section, or as limiting his liability on contracts entered into without authority or as conferring any right to indemnity in respect of that liability.”
This sub-section is similar to sub.-s. 2 of s. 369 of the English Companies Act, 1948, as to the effect of which I have been referred to Palmer’s Company Precedents (16th ed., 1952, Part 3), at p. 19:”It is usual to provide that the receiver shall be the agent of the company so as to prevent him being held to be the agent of the debenture holders or being personably liable on contracts entered into by him. Sect. 369 (2), however, now provides that he is to be personably liable to the same extent as if he had been appointed by the Court, on any contract entered into by him in the performance of his functions, ‘except in so far as the contract otherwise provides.'”
Now as of the date of his appointment, the 1st October, 1963, the receiver went into possession of the mortgaged property and took over the management of the business of the Company in exercise of the powers of the lender under the deed of mortgage delegated to him by the deed of appointment, and advertised the mortgaged property for sale.
In the course of the argument I have been referred to many cases as to the effect of the appointment of a receiver for debenture holders but I do not find it necessary to refer to all of them. I obtained most assistance in dealing with this branch of the case from those which I shall now refer to and I shall quote from the reports.
In re B. Johnson & Co. (Builders) (1) is not directly in point on the issue whether or not the receiver is bound or not by the alleged seniority list agreement, but many of the views expressed by the distinguished judges who constituted the Court of Appeal in that case are certainly helpful. At page 644 Evershed M.R., after stating some of the powers given to the receiver under the debenture, which are similar to those in this case, continued:”The situation of someone appointed by a mortgagee or a debenture holder to be a receiver and manager as it is said, ‘out of Court’is familiar. It has long been recognised and established that receivers and managers so appointed are, by the effect of the statute law, or the terms of the debenture, or both, treated, while in possession of the company’s assets and exercising the various powers conferred upon them, as agents of the company, in order that they may be able to deal effectively with third parties. But, in such a case as the present at any rate, it is quite plain that a person appointed as receiver and manager is concerned, not for the benefit of the company but for the benefit of the mortgagee bank, to realise the security; that is the whole purpose of his appointment, and the powers which are conferred upon him, and which I have to some extent recited, are . . . really ancillary to the main purpose of the appointment, which is the realisation by the mortgagee of the security (in this case, as commonly) by the sale of the assets.
All that is perhaps elementary; but it bears upon what I shall have to say as regards the charges made against the receiver; for it appears to me inevitably to negative the proposition that a person appointed, as Mr. Aizlewood was appointed, owes some duty to the company to carry on the business of the company and to preserve its goodwill.”
Jenkins L.J., in the course of his judgment, says (for the sake of brevity I begin the quotation in the middle of a paragraph, at p. 661):”. . . whereas a receiver and manager for debenture holders is a person appointed by the debenture holders to whom the company has given powers of management pursuant to the contract of loan constituted by the debenture, and, as a condition of obtaining the loan, to enable him to preserve and realise the assets comprised in the security for the benefit of the debenture holders. The company gets the loan on terms that the lenders shall be entitled, for the purpose of making their security effective, to appoint a receiver with powers of sale and of management pending sale, and with full discretion as to the exercise and mode of exercising those powers. The primary duty of the receiver is to the debenture holders and not to the company.”
Finally, Parker L.J., at p. 664, says:”What, however, in my judgment, is decisive of the case is that any work of management done by a receiver is not done as manager of the company. The powers of management are ancillary to his position as receiver, and, in exercising those powers, he is not acting as manager of the company but as manager of the whole or part of the property of the company.”
This case, of course, is not an authority binding on me, but the views expressed in it are very persuasive and deserving of respectful consideration.
Another up-to-date English case, Robbie & Co. v. Witney Warehouse Co. (1) is not directly in point, but, in effect, seems to support the contention that a receiver appointed by debenture holders is not bound by a contract made by the company before his appointment.
During the course of the argument I was referred to many other English casesno Irish cases were cited to me on this branch of the casebut I did not get much assistance from them, many of them being liquidation and winding up cases and cases where the receiver was appointed by the Court and subject to control as an officer of the Court.
The defendants’ argument put most reliance on the clause in the debenture deed that the receiver is made the agent of the Company, but it should be pointed out that this does not make him the servant of the Company, the same clause number 14 (c) of the debenture deedalso provides that the receiver shall in the exercise of the powers authorities and discretions conform to the directions from time to time given by the debenture holder. As agent for the Company, the Company is made fully responsible for his acts but it is not a corollary to this that he is bound by all Company contracts and agreements entered into by the Company before the date of his appointment.
The mortgaged property of which the receiver entered into possession as defined by the deed includes also the property charged and assigned, i.e., all the undertaking and assets, machinery, book debts and goodwill; the argument of the defendants amounts to this: that he also took over, by operation of law, the obligations of the Company under the alleged agreement by the Company to employ the Union’s electricians on the production of films in the studio. In as much as I find that it was the Union’s insistence on this agreement that gave rise to the circumstances leading to the debenture holders putting in a receiver over all the Company’s property and assets, this would seem to lead to an absurdity. I have no hesitation in holding that there is no legal basis for their contention that the agreement as to the seniority list, even if it existed as an agreement on the date of the appointment of the receiver, became binding on him.
The last line of defence of the defendants is this: it is argued for them that, even if the agreement was not binding on the receiver the defendants bona fide believed it to be so binding and had reasonable grounds for so believing. Now it is quite clear in this case that there was no contact between the receiver and the Union or its members until at the end of May of this year. The Union tried to raise a dispute; the receiver had never employed any of the Union’s electricians or sought to employ them; the dispute the Union sought to raise was based on a contention that the seniority list was binding on the receiver and that it was his breach of that agreement which entitled the Union to put a picket on the premises at Ardmore. This is evidenced by the correspondence which took place between the parties at the end of May and beginning of June, which I have already read.
The Union was entirely misconceived in stating that the seniority list was endorsed in the High Court and, as I have already stated, I cannot see how anybody could reasonably believe that the Company could be held to agree to carry on on the basis of the seniority list after the conference that was held in the Department of Industry and Commerce in September, 1963. All the more so, it must be said, that no person could reasonably believe that the receiver could be bound by such agreement.
It may be that the Union executive was wrongly advised on the law. If that was so, it is not, in my opinion, sufficient to raise a justifiable trade dispute and the burden for their mistake must fall on the Union and its members, not on the receiver for the debenture holders.
In the result, I find that the plaintiff Company in this action, brought at the instance of the receiver in the name of the Company, is entitled to the relief claimed.
The Roundabout Ltd. v. Beirne and Others
Dixon J. [1959] IR 426
DIXON J. :
15 Jan.
I do not think that it is necessary for me to reserve my decision, as the matter seems to come down to a very net point, a technical one perhaps, but the whole subject of trade disputes is itself rather technical. There is no doubt that a trade dispute was raised and existed between the Trade Union and some of its members, on the one hand, and the Marian Park Inn Company, on the other hand. That company has ceased to carry on business in these premises, and the only question in this case is whether the trade dispute survives as against the new company which has been formed and which has taken a lease of the premises from the Marian Park Inn Company. The trade dispute still exists with what I may call the old company, and the question is whether the Union can avail itself of that dispute for the purpose of picketing the premises which are now occupied, and in which business is now carried on, by the new company.
The new company is in law a distinct entity, as is the old company. Each company is what is known as a legal person. I have to regard the two companies as distinct in the same way as I would regard two distinct individuals. I must therefore proceed on the basis that a new and different person is now in occupation of the premises and carrying on business there.
It has been suggestedand there is some basis for the suggestionthat the new company was formed for the purpose of getting rid of the trade dispute and also of enabling the employment of Union staff to be dispensed with. There is considerable substance in that suggestion. I think that it is quite permissible to describe the formation of the new company as a subterfugea legal subterfugeto put an end to the trade dispute and enable the business to be carried on without the inconvenience of being subject to the picket. To this description there are two qualifications: first, that even though the formation of the new company may be a subterfuge, the question I have to decide is not ruled by that; the question which I must determine is whether it is a successful subterfuge, capable of effectually achieving its purpose. The second qualification is that I do not think that the sole, or possibly even the primary, purpose of the formation of the new company was to get rid of the trade dispute. I think that there was a genuine idea of getting new blood into the business and a genuine idea of the business eventually being taken over in some way by which the Morans would cease to have a substantial interest, and might possibly cease to have any interest in the premises or business. At the moment, indeed, the Morans are in control, constituting the three permanent directors of the new company. The other directors of the new company are at their mercy in a sensein the sense that, if the permanent directors see fit to remove the other directors, they can require them to transfer their entire shares or interest in the company. The new directors, however, are satisfied with that position; they are satisfied to rely on the Morans, and to trust to the Morans that the new directors will not, as it were, be thrown out, and that, to put it it colloquially, there will eventually be something in it for them.
While this new arrangement contains a considerable element of subterfuge, as a scheme designed to get rid, if legally possible, of the existing trade dispute, that is not the whole end and object of the arrangement. I must regard the new company as what it is, a distinct legal entity, and approach the position from the same point of view as if some individual or company totally unconnected with the old company had taken a lease of these premises similar to the lease taken here. The question then is whether a picket can be placed on the premises of the new owner by reason of a trade dispute with the previous owner. In the only case decided in this country on that matter, Ferguson. v.O’Gorman and Others (1), Meredith J. held that, in the circumstances of that case, the existing trade dispute did attach to the premises when purchased by the new company, but there are distinctions between the facts of that case and those of the present case, which, I think, render the decision in that case inapplicable to the present case. In that case a company was formed which purchased the premises and took over the business of a partnership as a going concern, so that a new owner of the premises was substituted for the old, and the legal effect was the same as if the partnership had converted itself into a company.
In the present case, that is not the legal position. The old company still has not merely an interest in, but the ownership of, the premises. The new company has taken a lease of the premises from the old company; it has not taken over the business as a going concern.
Another distinction between the two cases is that, in the present case, the new company are not “employers” in the sense that would bring them within the terms of the Trade Disputes Act, 1906. To make picketing lawful within that Act it must be conducted “in contemplation or furtherance of a trade dispute” and a “trade dispute” is defined, in s. 5, sub-s. 3, of the Act as being (so far as material here) a”dispute between employers and workmen . . .” There is no doubt that “workmen,” within the definition thereof in the Trade Disputes Act, 1906, are involved in this dispute, but there must, on the other side, be employers. “Workmen”are defined, in s. 5, sub-s. 3, of the Act as “all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises.” The practical effect of that definition is that, if a trade dispute arises between workmen and employers in one premises, it might, and in most cases would, be permissible for the workmen or for other members of their trade union to picket entirely different premises owned or occupied by a totally different employer. It is an everyday feature of trade disputes that the dispute does not exist with the particular employer who is being picketed; the object of that provision of the Trade Disputes Act is to legalise sympathetic or consequential picketing. Before such picketing can be legalised the person whose premises are being picketed must first be an employer, for the obvious reason that the object of the picketing must be to act by influence or persuasion on employees. The distinction is perhaps a fine one, but where there is no trade dispute with the individual owner or occupier of the premises which are being picketed, such picketing can be justified only if such owner or occupier is in fact an employer.
The new company here is not an employer. It is true that it is a potential employer in the sense that it may well in the future be compelled by circumstances to take on staff, but at present it is not, and never has been, an employer in the sense in which that term is used in the Trade Disputes Act, 1906. It is true that the directors of the company do work in the licensed premises, but a distinction must be observed between directors who do work for a company and workmen who are employed by the company. The former cannot be regarded as working in pursuance of any contract of employment, and, therefore, cannot be regarded as workmen of the company. The fact that the company may at some future time be an employer is not sufficient to entitle me to hold that it is at present an employer, so as to entitle the defendants to claim the protection of the Trade Disputes Act, 1906.
The onus of establishing the existence of a trade dispute lies on the persons alleging its existence; in my view no trade dispute has been shown to exist between the plaintiffs, Roundabout Ltd., and the defendants, and accordingly the plaintiffs are entitled to have the interim injunction continued in a more permanent form. I propose, however, to grant the perpetual injunction only against the four named defendants. The plaintiffs are also entitled to the costs of their action against the defendants.
James McMahon Ltd. v James Dunne and Patrick Dolan
High Court
9 November 1964
[1965] 99 I.L.T.R 45
Budd J.
Budd J.:
The plaintiffs in these proceedings are timber merchants and builders’ providers carrying on business in Limerick. The first named defendant is the general secretary of the Marine, Port and General Workers’ Union (hereinafter generally referred to as the Union) The second named defendant is a member of the union and is the head checker employed by Messrs George Bell and Company, stevedores.
The plaintiffs issued proceedings on the 20th October last against the defendants claiming an injunction to restrain the defendants or their servants or agents, in combination or otherwise, from interfering with, or preventing, the performance of certain contracts between the plaintiffs and certain firms stated and named in the plenary summons, or procuring, or inducing breaches of such contracts There was also a claim for damages for conspiracy to procure breaches of contract and for damages for wrongfully procuring the same The summons contained the usual claim for further or other relief.
The plaintiffs having obtained an interim injunction from Henchy J. on October 20th, 1964, then served the notice of motion now before me seeking an interlocutory injunction restraining the defendants, and each of them, and their respective servants and agents, until after the trial of this action from preventing, or interfering with, or authorising the prevention or interference with, the delivery or removal of goods consigned to the plaintiffs which are now in the port of Dublin The plaintiffs have sought an amendment to this notice of motion to cover further consignments of goods expected shortly to arrive The plaintiffs state that they accidently confined themselves in their application to seeking an injunction that only covered goods at present in the port of Dublin Since further cargoes are due to arrive it will obviously lack all reality in the circumstances if any injunction to be given was confined to cargoes at present in the port. Such a course would lead to an utterly unnecessary expenditure in costs, because, if an injunction with regard to the goods at present in the port were to be granted, the plaintiffs could obviously come in tomorrow and obtain an injunction with regard to future cargoes. In my view it is therefore right and proper to grant the amendment sought The application to amend was opposed but it was agreed that if the amendment was to be granted the form of the amendment should be to insert in the notice of motion after the word “now” the words “or may arrive in the port of Dublin pending the trial of the action by doing any act tending to further or promote any interference with the removal or movement of the said goods” in lieu of the words originally in the notice of motion after the word “now” Accordingly I will grant the amendment in that form The allegations of conspiracy were not pursued at this stage of the proceedings.
The proceedings arise out of the following circumstances. The plaintiffs had of recent times entered into contracts with the companies or firms specified in the plenary summons. foreign suppliers of timber, for the sale to them of certain quantities of timber to be delivered to the plaintiffs in Dublin Ten lots of the timber so ordered arrived in the port of Dublin during the months of August, September and October of this year, were discharged over the ship’s side and duly paid for The plaintiffs are also expecting the arrival of these further cargoes of timber in the near future The plaintiffs say that they have been prevented and impeded from removing the aforesaid cargoes from the port of Dublin to their business premises and that the vendors have been prevented from delivering the timber in question to the plaintiffs in breach of their contracts, as a result of an embargo placed on all building materials lying at the port of Dublin by reason of a trade dispute between workers employed by builders’ providers in the Dublin area and their employers They say that this embargo has been implemented by the Union directing the “checkers” in the port, who are members of the Union, to withdraw their labour in connection with the said building materials and other goods consigned to builders’ providers, including the above-mentioned cargoes. This the plaintiffs say resulted in the employees of the plaintiff *46 company being unable or unwilling to carry out their employers’ instructions with regard to taking delivery of the said timber.
From what the plaintiffs say it would appear that it is necessary in order to complete the delivery of the said timber that it should be examined by a “checker”, who is an employee of the shipping agent or stevedore or other persons in similar positions concerned with the ship in which the goods have arrived and its unloading They also say that it is the duty of a “checker” having examined the cargo when unloaded to issue to the consignee a delivery note to enable the timber to be removed by the consignee from the dock in order that the contract between the vendor and the consignee may be completed. The withdrawal of the “checkers” labour in the above connection they say has resulted in the vendors not delivering the said goods in breach of their contracts. That breach the plaintiffs say was procured inter alia, by the first named defendant as regards all the contracts and by the second named defendant with regard to some.
An alleged instance of failure to issue the necessary delivery note on the part of the second named defendant is referred to in the affidavit of Mr. Fennessey, the secretary of the plaintiff company, used in support of the application It is alleged that, when employees of the plaintiffs attended at the docks on September 7th, 1964, for the purpose of taking delivery of the timber referred to, they were informed by the second named defendant that the plaintiff company had been included on a list, compiled by the Union, of firms whose goods would not be handled at the port owing to such firms being involved in a trade dispute in progress with building workers in the Dublin area The checkers were thereupon. it is said, directed to withdraw their labour in connection with the above-mentioned cargoes, which they did, resulting in the employees of the plaintiff company being unable or unwilling to carry out their employers’ instructions regarding the timber It is further alleged that the second named defendant gave as the reason for this inclusion of the plaintiff company in the said list (referred to by the plaintiffs as a “black” list) the fact that the plaintiff company held a controlling interest in a firm of builders’ suppliers in Dublin named James McMahon (Dublin) Ltd., a fact disputed.
The second named defendant demes these allegations and says that in fact no embargo existed on the date mentioned at the instigation of the Union and that no withdrawal of labour in relation to the checking out of materials to the plaintiff company took place until after September 11th. There is thus a disputed question of fact which cannot however be resolved at this stage. The allegations are however there even though disputed. It is perhaps of more importance that it appears from Mr. Dunne’s affidavit that the embargo was implemented as from September 11th against the plaintiffs. No doubt the facts will be further illuminated at the trial if the injunction is granted.
Apart from the above matter I should point out at this stage that the second named defendant himself states that a lorry driver of the plaintiffs did approach him to obtain delivery of timber on October 13th, 1964, that he was at first authorized by the Union to release it and proceeded to do so, but that the officials of the Union came down to the docks and countermanded the order for its release. He stops short there, but the plaintiffs say that the implication is that the second named defendant must in the circumstances have positively refused to release the timber as distinct from doing nothing It is common case, however, that an embargo of the kind mentioned was imposed by the Union and implemented as stated. Further, it is conceded that the first named defendant, as secretary of the union, conveyed directions to the “checker” members of his union, to withdraw their labour in connection with the type of goods above-mentioned and the cargoes referred to There is no question but that the embargo covered goods consigned to the plaintiffs passing through the port from some time in early September.
None of the plaintiffs’ employees are members of the Marine, Port and General Workers’ Union The plaintiffs have no trade dispute with their employees and allege that none exists between them and the defendants or the union.
As soon as the plaintiffs ascertained that the embargo applied to them they commenced these proceedings and obtained the interim injunction mentioned from Henchy J. on the 20th October, 1964, which was in similar terms to that sought in the notice of motion as unamended.
A short reference to the background of the situation may serve to clarify the position. On or about August the 18th of this year, consequent upon a trade dispute which had arisen between the Federation of Builders, representing a number of Dublin building *47 firms, on the one part and a group of trade unions representing workers in the said firms, on the other part, a strike commenced which resulted in the withdrawal of labour from the said employers and other industrial action. This strike continued until on or about the 16th October. Neither the plaintiffs nor the defendants were directly concerned with this strike, though affected by it in certain ways The strike, however, had repercussions and towards the end of August certain members of the Timber, Cement and Fireclay Branch of the Federated Union of Employers, who were builders’ providers, issued protective notice to their employees that their employment might be terminated if the building strike continued. On or about the 7th September last the union served on the member firms of the said Timber, Cement and Fireclay Branch of the Federated Union of Employers a notice on behalf of the members of the union employed by the said firms claiming a reduction in their hours of labour. On the 10th September the said firms gave notice to their employees that they were closing down from that evening. The union regarded this as an unjustified lock out. Arising out of this state of affans and the union’s view thereon the labour of the checkers on the docks, who were members of the union, was withdrawn to the extent that such labour was required to obtain the release of the supplies in the docks to firms which had shut down and the union say that a trade dispute either then or shortly afterwards came into existence between the aforesaid parties. According to the plaintiffs’ this dispute cut across deliveries to them, and they took up the matter with the union. The building strike was settled, apparently, on the 16th October. On the same date the union gave notice to the Federated Union of Employers, Timber, Cement and Fireclay Branch, that on and from the 19th October a trade dispute would exist between the union and the branch, in relation to the claim for the forty hours week. Also on the same date the Executive Committee of the union resolved that instructions should be given to “checker” members on the Dublin docks to withdraw their labour insofar as it was required for securing the release of materials for the building industry or in any way concerned with it or required for firms of builders’ providers in any part of the country, unless the union should authorise them to do otherwise. According to the affidavits sworn by the first-named defendant the purpose of this resolution was to place a total embargo on the release of any building materials or anything in the nature of building materials from the docks pending the settlement of the trade dispute. It is relevant to note that the embargo was in fact in existence before this resolution was passed. Mr. Dunne in his first affidavit says that it applied at all material times to the plaintiffs as well as to the firms above referred to but from what he says this must mean after September 10th.
The first named defendant claims that these actions were taken in furtherance of the said trade dispute and for the purpose of bringing pressure to bear on the firms directly concerned and also upon all firms in any way connected with the trade or industry of builders’ providers to use their influence to bring about a settlement of the dispute.
On October 19th Mr. Dunne informed the plaintiffs through their solicitor that the embargo extended to their goods.
The plaintiffs allege that the tort of inducement of a breach of contract has been committed against them by the first named defendant. They say that the actions of the first named defendant in communicating the resolution of the Executive Committee of the union to the “checker” members of the union and his giving them directions as to the withdrawal of their labour, pro tanto, as regards the delivery of the plaintiffs’ goods to them, resulted in such withdrawal of labour. That withdrawal of labour they say resulted in the consgnors of the goods, parties to the various contracts referred to, being unable fully to perform their contractual obligations to the plaintiff company in that they were unable to deliver the goods to the plaintiffs as the plaintiffs maintain the various contracts required. This then resulted in the procurement of a breach of these commercial contracts and an unlawful interference with the plaintiffs’ trade or business. Such breaches of contract they further say, were brought about by unlawful means, that is to say, by procuring the checkers to commit a breach of their contracts with their respective employers in failing to carry out the normal duties of their employment, which they say are sufficiently indicated in Mr. Fennessey’s affidavit to support this allegation.
They also say that the actions of the second named defendant in refusing to release the goods in the manner alleged constituted the procuring of breaches of two or *48 more of the contracts by the commission of unlawful breaches of his contract of employment and therefore by unlawful means.
The tort of intentionally procuring a breach of contract by one party thereto, without legal justification, and resulting in damage to the other party thereto, is now well established. It had its origin in Lumley v. Gye (1853) 2 E. & B. 215, a decision so familiar to lawyers as to make it unnecessary to expatiate on it. It is also true to say that it is also authoritatively accepted that the tort extends in its ramifications to the case of the procurement of a breach of contract by unlawful means, such as the procuring of a breach of a contract of employment on the part of an employee of the contract breaker. That this ingredient may also extend to the case of procuring a breach of the contract of employment of an employee of a third party appears to have grounds of support will appear later. The difficulty however exists of stating, in the first instance, precisely what the ingredients of the tort are. That is not fully and authoritatively decided here. Furthermore the application of the law to the facts, and deciding whether established facts bring any particular case within the scope of the ingredients of the tort, established or thought likely to be established, is not without difficulty. It has only to be stated that recently the House of Lords reversed the Court of Appeal in England in a case bearing a good deal of analogy to this case, after a lengthy hearing for an interlocutory matter, and after taking time for consideration, for it is to be seen that a formidable task confronts any Judge of first instance charged with the matter of dealing with the various facets of law and fact touched on in this case. I turn to an examination of the relevant law and matters in issue.
Salmond on Torts (1961 Edition) at page 657 describes the tort as follows:—“Intentionally and without lawful justification to induce or procure anyone to break a contract made by him with another is a tort actionable at the suit of that other, if damage has resulted to him.”
It is pointed out at page 659 of the work above referred to, adopting in this respect the pronouncements of Jenkins, L.J., in Thomson v. Deakin [1952] Ch. at 693, that, apart from cases of conspiracy to injure, “Acts of a third party lawful in themselves do not constitute an actionable interference without contractual rights merely because they bring about a breach of contract, even if they were done with the object and intention of bringing about such a breach”. Certain instances of cases where the necessary ingredients of an actionable interference-with contractual rights exist are then, however, cited. No. 5 at page 660 is as follows.— “When a third party, with knowledge of the contract and intent to secure its breach, definitely and unequivocably persuades, induces, or procures the servant of one of the parties to break his contract of employment, provided that the breach of contract forming the alleged subject of interference in fact ensues as a necessary consequence of the breach of the contract of employment.” This is in fact a paraphrase of the views of Lord Justice Jenkins in the same case at page 696, relating to the necessary ingredients, in his view, of the tort of procuring of a breach of contract by unlawful means. The author goes on to say that it must be clearly shown that the effect of the withdrawal of the services of the particular servant concerned was to render it quite impracticable for the contract breaker to perform his contract, and that it must be distinctly shown that unlawful means were advocated with the intent of interfering with the performance of a particular contract A prima facie reasonable and logical argument can be made, in my view, for the extension of the ingredient of procuring by unlawful means to the case of the procuring of the servants of a person, not one of the parties to the contract, to break their contracts of employment. Such a view appears to be implicit in the speeches in the House of Lords in Stratford v. Lindley [1964] 3 All E.R. 102.
Having made reference to the views of Jenkins L.J., stated in the case of Thomson v. Deakin it would only be right and proper to state them fully, especially since they were much relied upon by the defendants. He says that he would hold the form of actionable interference, dealt with in Salmond above as strictly confined to cases where it is clearly shown, “first, that the person charged with actionable interference knew of the existence of the contract and intended to procure its breach; secondly, that the person so charged did definitely and unequivocally persuade, induce or procure the employees concerned to break their contracts of employment with the intent (he had mentioned), thirdly, that the employees so persuaded, induced or procured did in fact break their contracts of employment; and, fourthly, that breach of the contract forming the alleged subject of interference ensued *49 as a necessary consequence of the breaches by the employees concerned of their contracts employment”.
He also had some observations to make with regard to the expression “necessary consequence” which I also quote:
“I should add that by the expression ‘necessary consequence’ used here and elsewhere in this judgment I mean that it must be shown that, by reason of the withdrawal of the services of the employees concerned, the contract breaker was unable, as a matter of practical possibility, to perform his contract, in other words, I think the continuance of the services of the particular employees concerned must be so vital to the performance of the contract alleged to have been interfered with as to make the effect of their withdrawal comparable, for practical purposes, to a direct invasion of the contractual rights of the party aggrieved under the contract alleged to have been interfered with, as, for example (in the case of a contract for personal services), the physical restraint of the person by whom such services are to be performed.”
The facts of the case of J. T. Stratford & Son Limited v. Lindley, to which I have referred as appearing to extend the nature of the ingredient relating to unlawful means, are briefly as follows. In 1963 a company named Bowker and King Limited, having previously rejected joint invitations of the Transport and General Workers’ Union and of the Watermen, Lightermen, Tugmen and Bargemen’s Union to negotiate terms and conditions of employment, came to agreement in negotiation with the Transport Union alone, the Watermen’s Union not being informed of the negotiations. The agreement covered the terms and conditions of service of all Bowker and King’s union employees. These were forty-eight in number, forty-five of whom belonged to the Transport Union and three belonged to the Watermen’s Union. The respondents were officers of the Watermen’s Union. Having learnt of this agreement and knowing that Mr. Stratford was chairman of J. T. Stratford & Sons Limited (hereinafter sometimes referred to as Stratfords) a company that controlled Bowker and King Limited, as well as chairman of Bowker and King Limited, the union struck at Stratfords by placing an embargo on their union’s members handling barges of Stratfords. That latter company did not employ members of either union. Stratfords owned and hired out barges and repaired barges. The hirers of the barges employed lightermen to take charge of the barges, to deliver cargo and return the barges to Stratfords. Master lightermen had dock workers allocated to them pursuant to certain dock regulations made in England. As a result of the embargo Stratfords were caused heavy financial loss, their barges being immobilised, mainly by being tied up by the watermen to the nearest buoy after having been used for the hirer’s business and not returned to Stratfords. Barges also were not brought in for repair. If damages were recoverable the respondents would in fact be unable to pay, so that damage would be irreparable. J. T. Stratford & Sons Limited brought an action against the respondents and obtained an interlocutory injunction which was discharged on appeal. An interlocutory injunction was however granted by the House of Lords.
The House of Lords took the view that Stratfords had made out a prima facie case that the respondents, with sufficient knowledge of the barge hiring contracts, had either induced breaches by the barge-hirer customers of their contracts with Stratfords by failing to return barges to Stratfords at the conclusion of hirings, and had induced such breaches by unlawful means, that is to say by procuring breaches of their contracts of employment with the master lightermen by the union members’ refusal to handle Stratfords’ barges or had induced such breaches without lawful justification. On either view loss had thereby been inflicted on Stratfords and they were accordingly. prima facie, entitled to recover, on the principle of Lumley v. Gye (1859) E. & B. 216, damages for the wrong done to them by the respondents.
I should say with regard to the above synopsis of the facts of the case that it was the view of Lord Upjohn that the contracts of employment of the bargemen was with the master lightermen and that my reading of what Lord Reid and Lord Radcliffe said leads to the view that they came to the same conclusion. On this basis the procuring of a breach of a contract of employment existing between a servant and an employer. not a party to the contract, the breach of which is complained of, constitutes the use of unlawful means sufficient so far as that ingredient is concerned to support the tort.
The interlocutory injunction was granted to preserve the status quo pending the hearing because the respondents would suffer no loss therefrom whereas Stratfords would suffer heavy financial loss if the embargo continued, which the respondents would be unable to make good. *50
With reference to the breaches of their contracts of employment by the bargemen there is a passage in the speech of Viscount Radcliffe to which I think it is useful to refer. He says at page 108:—“The immediate thing that the embargo was intended to achieve was that the union’s order to ‘black’ the appellants’ barges was to be imposed on a dock worker’s normal duty to carry out his employers’ lawful directions in his job To that extent they were to obey the union, not the employer, I regard that as a direct instruction to the dockers not to obey their employers’ orders pro tanto. ” The plaintiffs in these proceedings say that the embargo placed by the Marine, Port and General Workers’ Union had the same result with regard to a “checker’s” normal duty to carry out his employer’s lawful directions in his job It resulted in the checkers refusing and failing to carry out the normal duties of their employment with regard to the issue of delivery notes and the release of the goods of the plaintiffs and their is thus a similar position here to that existing in the above case. the plaintiffs contend They say also that the decision is authority, prima facie at any rate, for the proposition that inducing the breach of a contract of employment with a third party, as distinct from procuring a breach of a contract of employment existing between one of the parties to a contract and his employees, would be a use of unlawful means assuming that a breach of contract was procured thereby. Furthermore they claim that the decision shows, prima facie again, that it is unnecessary to prove actual knowledge on the part of the intervener of the existence of any specific contract of which the procuring of the breach is alleged on the part of the intervener or its precise terms. It is sufficient if the intervener can be fixed with implied or constructive knowledge of the existence of such a contract containing terms of the kind of which it is alleged a breach was procured The analogy which the plaintiffs draw with regard to the knowledge of the defendants of the contracts of which a breach is alleged to have been procured I deal with later.
While I have touched upon certain matters involved in the above decision relevant to the facts of the present case it should be stated that it was the view of the House of Lords that a trade dispute did not exist between the respondent’s union and the appellants so as to enable the respondents to rely on such protection as the Trade Disputes Act, 1906, might afford them in the circumstances. The position in this case is somewhat different in that the defendants say that a genuine trade dispute of the nature outlined above exists between their members employed by the builders’ providers above mentioned and the members of the defendant’s union employed by them, and, they further claim that the existence of such trade dispute entitled them lawfully to take industrial action against persons not actually parties to that dispute for the purpose of bringing pressure on them so that they in their turn might be moved to bring pressure on the employers of the defendants’ union members to persuade them to come to terms on the matter of the existing trade dispute and it is claimed that their actions are protected by the provisions of the Trade Disputes Act, 1906.
So far I have referred in a general way to the facts of the case and to some relevant matters of law claimed by one party or the other to be relevant thereto. Certain particular submissions still remain to be dealt with, but, before proceeding to consider them it is appropriate to remark that this is an interlocutory application on which no final determination is made on the facts at issue or as to the correct interpreation of the law to be applied to them, unless in a very clear case. Such observations as I make on both matters are to be read in that light The correct approach in dealing with an application of this kind is set out in the decision of the Supreme Court in the case of the Educational Company of Ireland Limited v. Fitzpatrick and Others 96 I.L.T.R. 161, [1961] I.R. 323. It is convenient at this stage to refer briefly to portions of the judgments therein.
Lavery J., in the course of his judgment quoted with approval from Kerr on Injunctions. Paraphrasing these quotations as far as relevant in the present proceedings the following principles emerge. An interlocutory injunction does not conclude a right but is merely provisional in its nature, the effective object being to keep matters in status quo until the hearing. The Court does not, in general, profess to anticipate the determination of rights but merely gives its opinion that there is a substantial question to be tried and that until trial a case has been made out for the preservation of the property in status quo. It is sufficient for a person seeking an interlocutory injunction to show that he has a fair question to be raised as to the existence of the right which he alleges and for the preservation of the *51 property meantime. A fair prima facie case must be made in support of the title which he asserts and he must show that there are substantial grounds for doubting the existence of the alleged legal right the exercise of which he seeks to prevent. The Court must, before disturbing any man’s legal rights, or stripping him of legal rights, be satisfied that the probability is in favour of his case ultimately failing. The mere existence of a doubt as to the plaintiff’s right, interference with which he seeks to restrain, does not of itself constitute a sufficient ground for refusing an injunction, though it is always a circumstance which calls for the attention of the Court.
It is highly relevant to point out that Lavery J. said that the case then before the Court raised questions which had not been decided in any Court whose decision bound the Supreme Court. It had been submitted that the decision of the Court of Appeal in England in the case of White v. Riley [1921] 1 Ch. 1 had been accepted and that so far as interlocutory relief was concerned it should be accepted. The learned Judge having pointed out that the plaintiffs had to establish that there was a fair question to be decided at the trial, took the view that the arguments heard indicated that there was such a fair question and in his view a difficult one. He then proceeded to consider what Order should be made on the basis that a fair question for trial had been established. He quoted with approval some passages of the article on Injunctions in the Hailsham edition of Halsbury’s Laws of England. In the first part of the quotation is contained the statement “in the absence of very special circumstances (the Court) will impose only such restraint as will suffice to stop the mischief and keep things as they are until the hearing” The quotation continues —
“Where any doubt exists as to the plaintiff’s right, or if his right is not disputed, but its violation is denied, the Court, in determining whether an interlocutory injunction should be granted, takes into consideration the balance of convenience to the parties and the nature of the inqury which the defendant, on the one hand, would suffer if the injunction was granted and he should ultimately turn out to be right, and that which the plaintiff, on the other hand, might sustain if the injunction was refused and he should ultimately turn out to be right. The burden of proof that the inconvenience which the plaintiff will suffer by the refusal of the injunction is greater than that which the defendant will suffer, if it is granted, lies on the plaintiff.”
Some other passages in the judgment were submitted to be relevant to the facts of the present case and I think that they are. The injunction sought was to restrain picketing and the plaintiffs claimed that the damage might be caused by the continuance of the picketing pending the trial would be serious and in the sense in which the word is used in this connection, “irreparable”. Lavery J. said: “Clearly it would be very difficult, if not impossible, for the plaintiffs to show that loss of trade or diminution of their profits, if sustained, should be attributed to the picketing and not to other circumstances or combination of circumstances.” Having pointed out that the defendants were in that case asserting what they considered to be a fundamental principle and agreeing that it was of very great importance, the learned Judge took the view that in that particular case no serious damage could be caused to them if, by order of the Court, the picketing was restrained until the trial of the action. He further stated his view that the case came to be decided under the principle which Smyth v. Beirne and Anr. was decided by the Supreme Court, the grounds of the decision being twofold. First, that the facts might be in dispute and second, that a serious question of law arose as to whether there was a trade dispute in existence. He was also of opinion that further facts might well be elicited at the trial. Kingsmill Moore J. also stated that he was not convinced that all the relevant facts were established or admitted. He was of opinion that a plaintiff was entitled to have his case fully investigated in the ordinary course of legal procedure and that it would be undesirable in the absence of consent to decide a legal question of the magnitude there involved merely on the affidavits filed for the purpose of the interlocutory motion.
Have the plaintiffs then shown that they have raised a fair question or questions to be decided at the trial?
First of all there arises what may be described as a preliminary point. The plaintiffs in the first instance rely on the procuring of breaches of the contracts referred to The defendants say that on the true construction of the contracts in question no breach of contract ever occurred. Accordingly the action is unsustainable and interlocutory relief sought should not be granted. *52
The contracts were produced and appear, with a possible exception, to provide for delivery in Dublin. The plaintiffs say that on their true construction, viewed in the light of the surrounding circumstances this must mean delivery to them in Dublin. They cannot be delivered in vacuo so to speak This construction is not agreed to by the defendants who say that the contracts were completed by delivery over the ship’s side and that thus no breach of contract was procured. The plaintiffs’ construction would appear however to be reasonably open. The opposite contention does not appear to me to be so clearly correct as would justify a ruling in favour of the defendants’ contention at this stage. The true construction would appear to be a matter for determination at the trial if it is otherwise thought proper to grant the injunction sought.
On the matter of the knowledge of the contract (the procurement of the breach of which is alleged) on the part of the intervener, a good deal of debate took place. It was contended on the one side at first that before the intervener could be fixed with liability he must be shown to have known of the existence of the particular contract the breach of which he is charged with procuring. It was said that there was no room for “ought to know” or “should be presumed to know”. It was however then conceded, as I understood it, that it need not be shown that the intervener had a knowledge of the particular contract in fact existing between the parties thereto, the breach of which is alleged to have been procured It would suffice if the intervener had actual knowledge that a contract existed between these parties, without full knowledge of its terms and, I take it, from what was said, that the intervener had sufficient knowledge of it to know that what he was doing or causing to be done or not done, would result in a breach thereof. There is, I think, involved in this, some departure from the nature of the ingredient of knowledge laid down by Jenkins L.J. in Thomson v. Deakin, which would appear to require knowledge of the contract.
The plaintiffs contended that it was unnecessary to support their action in respect of this particular tort to show that the de-defendants had actual knowledge of any of the particular contracts involved. That it was sufficient if the defendants could be fixed with constructive, as distinct from actual knowledge, that a contract existed either between the actual contracting parties or between the party injured and some other party, the important thing was that the intervener would know that his intervention would procure a breach of contract, which would result in injury to a known party to the contract. They say that as regards the law they have raised a fair question be tried as to what precise degree of knowledge the law requires in this way. They say that there is no reason, in principle, why a plaintiff should be held in any straight jacket as regards the requirements as to knowledge. If he is entitled to obtain damages in a case where he can show that the intervener had knowledge of an actual contract between known parties is there any reason in principle, they ask, for refusing him compensation where the wrongdoer knows full well that a contract exists with the plaintiff of such a nature that his actions will procure a breach of it, to the plaintiffs’ damage. They thus rely on constructive or implied knowledge of the contract.
With regard to the law on the matter of knowledge certain observations relative to the matter of the sufficiency of constructive knowledge were made in the case of Stratford v. Lindley. Lord Reid thought it reasonable to infer, at that stage at any rate, that the respondents were sufficiently aware of the terms of the contracts between the appellants and the barge hirers by reason of the fact that they knew that the barges were always promptly returned at the completion of the job and it must have been obvious to them that this was done under contract between the appellants and barge hirers. The evidence before the House also satisfied Viscount Radcliffe that the defendants should be treated as having sufficient knowledge of the existence and notice of the hiring contracts Lord Pearse took the view that the hiring contracts were to be implied from an established course of dealing and under them the hirers were under an obligation to return the barges to the appellants when finished with It was in his view no answer to a claim based on wrongly inducing a breach of contract to assert that the defendants did not know with exactitude all the terms of the contract. The relevant question was whether they had sufficient knowledge of it to know that they were inducing a breach of contract The evidence, at the trial, he said would illuminate this point further Lord Upjohn also did not agree with a limited view on this matter and was satisfied that a prima facie case had been made of knowledge of a prima facie breach of the hiring contracts on the part of the respondents, though the matter might have to be explored more fully at *53 the trial. These observations made by whom they were and on a matter where the law of England and Ireland is in most respects similar, entitles the plaintiffs in my view to say that so far as the law is concerned they have strong support for the proposition that constructive knowledge is sufficient knowledge in the context. Just what type of constructive knowledge is sufficient is a new point yet to be decided here. If we have moved to the stage where constructive knowledge is sufficient is there any reason for confining the ingredient of knowledge to knowledge of a specific contract between specific parties or actual knowledge of any particular contract In many instances in modern life it must be obvious to the ordinary onlooker that some transaction is taking place on foot of some contract, particularly where matters of payment and delivery are concerned. This applies a fortiori where the intervener has special knowledge of the course of dealing, the customs prevailing and the surrounding circumstances.
Where a contract is obvious there must also be many instances in which the terms or at least some of the terms of the contract are likewise obvious If some term, such as one requiring delivery to someone, clearly a party to the contract, is itself clearly discernible in the particular circumstances to a person to whom the existence of the contract is obvious, and that person procures a breach of that particular term of the contract, to the detriment of one of the parties is there any valid reason in principle for exempting him from liability for what he has done, merely because he did not know who the other party was or of the existence of any particular form of contract or its exact conditions. I would think that, prima facie, a reasonable argument could be made for fixing such a person with liability on the basis of his constructive knowledge.
It may be decided that strict proof will be required of knowledge of some particular contract or it may be that it will be held sufficient if it is proved that in fact a breach of a contract or of some contract was in fact procured and that the intervener had, from the surrounding facts and circumstances, sufficient knowledge of that contract or of some contract to know that his actions would result in a breach of contract injurious to one of the parties to the contract.
These are matters on which I can come to no decision on an interlocutory application. I am satisfied, however, that a fair question has been raised as to these matters which should be decided at the trial of the action.
On the questions of fact with regard to the matter of knowledge of the contract Mr. Finlay made certain submissions. He was prepared to agree that the defendants might know of the existence of a contract between the actual parties from their work, gleaning it from a course of dealing. He pointed out, however, that neither defendant could have known of the contracts produced and, moreover, submitted that it had not been adequately shown that the defendants had sufficient knowledge of any contract between the plaintiffs and the vendors as would show that they had sufficient knowledge to know that their actions would lead to a breach of contract injurious to the plaintiffs. How could the plaintiffs know, he said, that the particular type of contracts here involved existed as distinct from any other type of contract. There were many contracts relative to these goods which could have been entered into between the vendors and the plaintiffs. There might have been contracts whereby the plaintiffs would have been responsible for the carriage of the goods. The plaintiffs might have had contracts with carriers to carry the goods. There might well have been many other sorts of contracts entered into between the plaintiffs and yet other persons for the collection and delivery of the goods. How were the defendants he said to know in these circumstances what particular type of contract the plaintiffs had entered into.
The plaintiffs say, in reply, that they have made a sufficient prima facie case on the facts with regard to knowledge. They say that the defendants were in a position, from the nature of their work and the everyday knowledge gained therein, to know in a well informed way, as to what goes on with relation to commercial contracts relating to the import of goods. They could scarcely, in Mr. McKenna’s words, think that the timber came to the plaintiff company like “manna from heaven”. They would know that a commercial dealing was involved. The plaintiff company would not be importing timber save under contract, being a commercial firm and sending their lorries for it would indicate also that they were parties to commercial contracts. All this shows, the plaintiffs say, that they have made a good, prima facie, case to fix the defendants with constructive knowledge of a contract. It can, at least, be said that a vendor and purchaser contract was almost certainly involved Evidence in *54 future to be given at the trial may also very well show that the documents in the hands of checkers or even the markings on the goods would show who the vendors were, thus establishing the other parties to the contracts. It is not going too far to say that there would be constant communications between members of the union on the docks and the general secretary of the union as to which particular lots of goods came under the embargo in the course of which he would hear of the whole nature of the traffic and the parties involved, in such fashion at least, as would fix hun with constructive knowledge of the established mode of dealing. That applies, a fortiori, to a “checker”. Then the communications with the plaintiffs and their solicitors, relating to these goods would apprise him of the fact that they in particular were concerned as parties to the contract particularly having regard to the incident that took place on October 13th. All this, it may be reasonably said, would lead him to the inevitable conclusion that the plaintiffs were involved in a commercial dealing and that it would be naive to suggest that he would not know that a contract was involved with whomever they were buying from. The same remarks apply to any other contract likely to be involved such as for the carriage of the goods. All would have the common factor that delivery of the goods to the plaintiffs would be part of the terms of the contract.
It all depends of course on what species of knowledge is required in law before one can say just what must be proved in order to show that the intervener had the requisite degree of knowledge. The plaintiffs submit that they have placed before the Court sufficient material to show, prima facie, that the defendants had sufficient knowledge of the contracts involved to know that their actions would produce a breach of the contracts involved or at least that their actions would procure a breach of a contract to which the plaintiffs were parties, along with another. It cannot, they say, really matter whom the contract is with provided that its existence is evident to the intervener Again, in so far as the facts are concerned it is impossible, they say, to cover every point fully on an interlocutory application, based on affidavits, and that a much fuller investigation of the facts will take place at the trial which will enable a finding to be made as to whether or not the defendants had such knowledge of the existence of the contract or a contract as the law requires.
In any event I am satisfied that a sufficient prima facie case as to the knowledge of the defendants of the contracts or a contract has been made out.
There is also another point with regard to the actual contracts which the plaintiffs had which may be conveniently dealt with at this stage. The form of the contracts with regard to the goods in question is known. They contain clauses exempting the seller from liability in case of force majeure. It was suggested that where such a clause exists and delivery in such a case as I am dealing with is prevented by reason of industrial action taken by persons outside the control of the seller resulting in the frustration of the contract, no breach of contract ensues and that it cannot therefore be said that a breach of contract has been procured by the intervener. I do not very well follow this reasoning because it would seem that such a clause predicates a right to delivery and merely exempts the seller from liability in the case of the intervention of force majeure. In any event I am quite satisfied that there is a fair question to be tried on this matter.
As regards certain other matters of law argued the plaintiffs say that they have established fair questions. The defendants concede that the tort of inducement of a breach of contract is well established but as I understood them took their stand on the ingredients of the tort as stated by Jenkins L.J. in Thomson v. Deakin already referred to Unless there is strict proof of these ingredients they say that the plaintiffs must fail and that prima facie proof of the facts necessary to constitute the required ingredients is not forthcoming. But the plaintiffs say that they do not accept the nature of some of these ingredients stated by that learned Judge and they point out that while Jenkins L.J is a Judge to whom the greatest respect is due on any pronouncement of the law, the precise ingredients of the tort have not been authoritively decided in our Courts, which seems to be the fact.
His views as to some of the necessary ingredients of the tort as laid down by him might not now be followed in England or here, it was pointed out. He appears to confine the ingredient of a procurement of a breach of contract by unlawful means to the instance of a procurement of a breach of the contract of employment existing between one of the parties to the contract, the breach of which is induced, and an employee of that party. The plaintiffs say that the *55 case of Stratford v. Lindley indicates that a wider view is clearly open and that that case indicates that proof of the procuring of a breach of contract of employment between a third party and his employees is sufficient to sustain the tort. I agree with that to the extent that a most arguable proposition on the point is shown and it follows that a fair question to be tried has been raised on this point.
It was further submitted by the defendants that it is a necessary ingredient of the tort to show that the person charged with procuring the breach of contract alleged intended to procure the breach and did procure it by unlawful means. Granted that this is so but a person is presumed to intend the ordinary and necessary consequences of his acts. If the ordinary and probable consequences of the actions of either defendant would be such as to cause a breach of contract then the intent would ordinarily be presumed.
Since I have found that there is a fair question to be tried on the point that the procuring of the employees of a third party to break their contract of employment constitutes the procuring of a breach of contract by unlawful means, the point arises first as to whether or not a prima facie case has been made out that a breach of the contracts of employment between the checkers and their employers, be they shipping agents or stevedores or other persons employing the checkers, has been made out. The suggestion is that the stevedores or shipping agents may have acquiesced in the conduct of the checkers. This is not substantiated in any way so far. There does not however seem to be any question but that it is a normal part of the checkers’ work to check out deliveries and give a delivery note to the consignee A prima facie case is thus made out that the checkers are in breach of contract with their employers. The second question is did the first named defendant, prima facie, procure the breach of the commercial contracts by unlawful means. Admittedly the procuring of the checkers to withdraw their labour pro tanto was procured, inter alia, by the first-named defendant and again, prima facie, that constitutes an unlawful act. Failure to take the necessary steps to enable consignees to take delivery of goods from the port would, prima facie, involve a breach of a contract which involved delivery to the consignee.
It all depends, of course, on the ultimate finding as to what degree of knowledge of the contract or a contract the law requires and whether the facts ultimately found show that the defendants had what ever degree of knowledge is required in law. Admittedly the question of intent is bound up with that of knowledge. If the plaintiffs fail on the knowledge point they will fail on the intent point also. However since I have found that a fair question has been raised as to knowledge of the contract it would seem to me that there is a fair question also to be tried on the question of intent.
There is thus it would seem to me also sufficient prima facie evidence that a breach of the commercial contracts was procured by unlawful means by the first named defendant. There is also I think, prima facie, evidence that the second named defendant by his actions already related procured a breach of the commercial contract by the unlawful means of breaking his own contract of employment.
As to intent, there is before me the terms of the resolutions passed by the general committee of the union relating to the embargo It is in wide terms. Its object has also been stated I have already referred to both. It has been communicated to the plaintiff company that the embargo applies to them and their goods. I have also referred to what occurred on October 13th when an order to release the plaintiffs’ goods was countermanded. The embargo has been implemented against the plaintiffs by both defendants. If knowledge of a contract is assumed for the moment, there is thus prima facie evidence of an intent to procure its breach since the actions of the defendants would, prima facie, at any rate necessarily breach since the actions of the defendants have that result. I am not overlooking Mr Finlay’s point that you cannot have the intention of breaking a contract that you do not know of.
It was next submitted by the defendants that it must be shown that the breach of the commercial contracts ensued as a necessary consequence of the breach of contract by the employees concerned. The suggestion is that some way around might have been found to get delivery of the goods. I think that a reasonable interpretation of the second-named defendant’s affidavit is that he did not release the goods by reason of the embargo. Mr. Fennessy also swears in his affidavit that by reason of the withdrawal of their labour by the checkers the plaintiffs’ employees were unable or unwilling to collect the goods. All the evidence with regard to what happens when a trade dispute takes place cannot of course be put on affidavit *56 but it may be safely assumed that when the case is fully investigated evidence will be before the Court with regard to the practicability of giving delivery on the part of the vendor and taking it on behalf of the purchaser. At the moment it seems to me that to suggest that it was practicable for the plaintiff company to get these goods when an industrial dispute existed and an embargo has been placed on their goods is somewhat unreal. For the present I think that sufficient has been shown to indicate, prima facie, that it is not practicable to give or obtain delivery of these goods. With regard to all these matters I have just dealt with relating to the facts I think that the plaintiffs have established that there are fair questions raised to be decided at the trial.
I now turn to deal with two other formidable questions that arise under the Trade Disputes Act, 1906. Since these two questions largely turn on the wording of section 3 of the Act I quote it herewith:—“An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment or that it is an interference with the trade, business or employment of some other person or the right of some other person to dispose of his capital or labour as he wills.” In connection with the Trade Disputes Act Mr. Finlay says that even if the defendants have done what is alleged against them and committed the tort with which we are concerned the defendants are nevertheless protected by the provisions of Trade Disputes Act.
First he relies on the latter portion of the definition of a trade dispute which is contained in sub-section 3 of section 5 of the Act. The expression trade dispute is defined as follows:—“The expression ‘trade dispute’ means any dispute between employers and workmen or between workmen and workmen which is connected with employment or nonemployment or the terms of employment or with the conditions of labour of any person, and the expression ‘workmen’ means all persons employed in trade or industry whether or not in the employment of the employer with whom the trade dispute arises.” That means, he says, by reason of the effect of the words “whether or not in the employment of the employer with whom the trade dispute arises,” coupled with the second limb of section 3 excepting acts done in furtherance of a trade dispute from actionable liability on the grounds only that they constitute an interference with the trade business or employment of some other person, establishes the right of industrial action such as has occurred in this case taken against employers other than those concerned in the actual dispute. He says that he is supported in this contention by certain observations of Lord Loreburn in Conway v. Wade [1909] A.C. pages 511 and 512, and by the decision by Dixon J. in the Roundabout Limited v. Walter H. Beirne and Ors. [1959] I.R. 523 at pages 528 and 529. What Lord Loreburn and Dixon J. said on the point in these two cases whether it be obiter dicta or otherwise, I think supports him but I do not propose to discuss this point further because I think that there are other reasons for supposing that a fair question arises as to whether the Trade Disputes Act can be relied on as a defence by the defendants.
Mr. McKenna says that whatever grounds may be stated for supporting the proposition that where a trade dispute exists industrial action may be taken against persons not parties to the dispute the point remains open for decision by the Supreme Court and in any event there is persuasive authority that it does not apply to the case of acts done in the alleged contemplation or furtherance of a trade dispute involving the procuring of breaches of commercial contracts by unlawful means. He says that the point is specifically dealt with by Kingsmill Moore J. when dealing with the construction and effect of section 3 of the Trade Disputes Act 1906, in Sherriff v. McMullen and Ors. [1952] I.R. 236 at page 247 as follows:—“It will be seen that procurement of a breach of contract is only protected when the contract is one of employment. The wording cannot be mere accident. Procurement of the breach of any contract other than a contract of employment is not protected, even if the acts which procure the breach are done in pursuance or contemplation of a trade dispute.” Russell J. in Brimelow v. Casson [1924] 1 Ch. 302 gave a similar opinion on the section Upjohn J. in Thomson v. Deakin at p. 664 and Lord Pearce (at p. 113) and Viscount Radcliffe (at p. 109) in Stratford v. Lindley also expressed similar opinions on this section. Gavan Duffy J. in the Supreme Court on the appeal in Sherriff v. McMullen took the same view as Kingsmill Moore J. in the Court below but it is right to say that the majority of the Supreme Court had doubts on the point and preferred to reserve their decisions thereon. These two points raise issues to be decided not yet authoritatively determined by the Supreme Court. They certainly in my view raise difficult *57 questions on the construction of section 3 and sufficient statements of high judicial opinion have been adduced, be they obiter or otherwise, to show that the plaintiffs have raised a fair question to be tried in respect of them.
I must say a word with regard to the matter of status quo. The defendants suggested that the status quo in this case was the state of affairs at present existing in the docks. To say the least of it this somewhat startled me. The object of the interlocutory injunction is to keep things as they were before the alleged wrongful act took place, in other words to stop the alleged mischief, assuming of course that a proper case was otherwise made out justifying the granting of the injunction. I have no doubt that the status quo here is the state of affairs that existed before the embargo was placed on goods in the port consigned to builders’ providers when the plaintiffs were able to obtain their goods freely.
It was also suggested that the granting of an injunction in the present case might be futile. If I thought that the granting of the injunction would be absolutely futile I would not of course grant it. I am not convinced of its entire efficacy. It may be that many more people would have to be drawn within the net to obtain a completely effective order. However, I think that the practical difficulties of a situation such as the present have to be considered. A plaintiff in a case such as the present is faced with great difficulties in deciding as to whom is the proper person to proceed against. If, however, he selects a particular person and succeeds in establishing a sufficient prima facie case against him I think that he is entitled to his order and it is not an answer to say “Oh! you ought to have brought in somebody else too if you want a completely effective order”. An injunction in the terms sought will prevent at least any further directions being given by Mr. Dunne and anyone properly described as his servants or agents, designed to implement the embargo. As regards Mr. Dolan it was alleged against him that he in reality took positive steps by refusing to release the plaintiffs’ goods and by informing the plaintiffs’ employees that the plaintiffs’ company was black listed and subject to the embargo, the result of which was to make it impracticable for the plaintiff company to obtain its goods. It is right to repeat that Mr. Dolan denies having made the statement As to whether he did or not cannot be determined now and I think that there is sufficient prima facie evidence so far as he is concerned to justify an order preventing him from taking any positive action pending the trial of the action.
On the matter of deciding whether a fair question has been raised to be decided at the trial I have found that there is a fair question to be tried on certain matters specifically touched on at the hearing. I wish, however, to add this observation of a general nature on this question. The exposition of the tort of procurement of a breach of contract without legal justification of a compartively recent origin. The frequency of industrial disputes of recent times has led to increased research and continually developing decisions as to the true nature of the tort and the principles to be properly applied according to the circumstances of each case. I take the overriding view also that a fair question has been raised for decision at the trial as to the entire nature and ingredients of this tort and consequently also as to what factual proof is required to sustain an action for procuring a breach of contract. There is at present before me such evidence of a general nature as to enable me to say that a sufficient prima facie case has been made of the procuring of a breach of contract and such as to raise a fair question to be tried.
Having thus come to the conclusion that there is a fair question raised to be tried, what should be the order on the application for the injunction. Finding a fair question predicates some uncertainty and doubt. The balance of convenience must then be taken into consideration. The burden of proof is on the plaintiffs to show that the inconvenience which the plaintiffs will suffer by the refusal of the injunction is greater than that which the defendants will suffer if it is granted.
The plaintiffs have stated that the total cost of the timber present in the port is £11,000 approximately and that by reason of the matters they complain of that their business is being interfered with and that they will be prevented from carrying out their contracts with their customers. It would obviously be difficult for the plaintiffs to show precisely what their loss of trade or diminution of profits would be owing to the embargo. To segregate loss if sustained between that which springs from embargo and other commercial circumstances would be impossible. In the sense in which the word is used in connection with applications of this nature irreparable loss is thus shown.
With regard to the defendants a state of affairs somewhat analogous to that existing *58 in the case of the Educational Company of Ireland Limited v. Fitzpatrick arises. The defendants are likewise here asserting what they consider to be a fundamental principle and there can be little doubt that the right which they claim to take industrial action, where a trade dispute exists, against persons not parties to that dispute, is one of very great importance. The right to picket to compel employers to bring pressure on their employees to join a certain union, recognised in White v. Riley is analogous to the position here. Similarly in this case it appears to me that no serious damage can be caused to the defendants if, by order of the Court, they are prevented from taking steps to implement the embargo. In my opinion the plaintiffs have discharged the onus of proof on them of showing that the inconvenience which they will suffer by the refusal of the injunction is greater than that which the defendants will suffer if it is granted.
Following the views of the Supreme Court as stated in the Educational Company of Ireland Limited v. Fitzpatrick my view is that an injunction should go in this case in the terms of the amendment granted and I shall so order. The plaintiffs must give the usual undertaking as to damages and also an appropriate undertaking to expedite the hearing of the action.
Crowley v. Cleary
McLoughlin J. [1968] IR 26rounda2
MCLOUGHLIN J. :
27 May
I do not find it necessary for the purposes of this judgment to give an elaborate statement of the evidence that was given at the hearing as there was really no dispute on facts.
The plaintiff is a licensed publican carrying on business in Pembroke Street in the City of Dublin. The defendant is general secretary of a registered trade union, called the Irish National Union of Vintners,’ Grocers’ and Allied Trades’ Assistants, which caters, inter alia, for employees of licensed publicans and the defendant is sued in that capacity. The Union has an agreement with the Licensed Grocers and Vintners Protection Association dating from July, 1938. The Association has as members most, but not all, of the licensed publicans in Dublin and Dun Laoghaire. The plaintiff is not, and never was, a member of that Association. This agreement is the usual type of agreement which a trade union seeks to establish with employers for the purpose of getting favourable working conditions for its members in relation to status rates of pay, hours of work, holidays, and so forth. It is relevant to quote one of its terms. Paragraph 6 of the agreement reads:”6. The employer shall have absolute freedom as to whom they (sic) shall employ” [For the moment I stop quoting from para. 6 to remark that what follows indicates that this “absolute freedom” is quite illusory; I continue the quotation:] “but all employees shall be members of the No. 1 Branch of the Union, and with the exception of apprentices, shall be engaged through the medium of the Union.” It is relevant also to note that the agreement indicates a hierarchy of status among employees in the trade, namely, manager, foreman, charge hand and assistants; and that an assistant is a junior till he has completed his sixth year of employment (including his apprenticeship years) when he attains the pay and status of senior assistant.
Not being a member of the employers’ association which entered into the agreement, the plaintiff did not regard himself as bound by its terms. He did, however, in his own interest, pay some regard to them. He paid wages not less than the standard wages and, before the dispute which gave rise to these proceedings, he did at the behest of the Union dismiss an employee who was not a member of the Union and he did, in the early part of 1966, accept on a temporary basis senior assistants who were supplied through the Union. These men were completely unsatisfactory, one of them indeed was dismissed for drunkennessa matter which was not denied. Then in October, 1966, the plaintiff employed a Mr. Murphy, who was not a member of the Union, as a senior assistant, and had then also employed a union member, MacNeill, who was a junior by the accepted standard, and also an apprentice, Taylor. Taylor was not, the plaintiff thought, a member of the Union; in any event the plaintiff did not employ him through the Union.
On the 21st November, 1966, a letter was sent to the plaintiff by the defendant, as general secretary of the Union, containing the following:”I am instructed by my Committee to draw your attention to the fact that you have employed as assistant contrary to clause 6 of the agreement for the licensed trade in Dublin. This clause states that all assistants must be members of No. 1 Branch of this Union and must be employed through the medium of this Union . . .”
The plaintiff said that following this letter he had a telephone conversation with the defendant and that the talk was about Mr. Murphy and whether the plaintiff should keep him on or dismiss him. The further conversation I give verbatim, as accurately as I can, from my notes:
“Plaintiff: I have this man employed. He is not in the Union and is not your responsibility.
Defendant: I have no responsibility for him, but I have to see that the agreement is observed throughout the City.
Plaintiff: I would like to fall in with your requirements as far as I can, but I don’t want my house run by somebody else.
Defendant: We don’t want to run your house or to put you in a worse position than any other trader.
Plaintiff: The legal position is this: you cannot force me to fire him because he is not in the Union.
Defendant: Look, we don’t mind what you do with the man, but we are going to insist that the agreement must be carried out. We’ll be over with a picket if you don’t accept.”
There was some further talk about the position of McNeill who was due to become a senior in January, 1967. The defendant again wrote to the plaintiff on the 5th December, 1966, as follows:”My Executive Committee note that so far you have taken no steps to rectify this matter. In these circumstances my Executive Committee consider that you are in breach of the agreement, and my Executive Committee have therefore no alternative but to serve strike notice on you. Accordingly, we give you notice that members of my Union will picket your premises as from 16th December unless by that date the agreement is complied with.”
The plaintiff replied on the 8th December in these terms:”Thank you for your letter of 5th December 1966, which reached me this afternoon. As you know, following receipt of your letter of 21st November last, I explained on the telephone that I am not and never have been a member of any association that ever concluded an agreement with your union and nor have I done so on my own behalf. You sent me a copy of some agreement signed in 1938 by people I have never heard of, containing a clause which states that all assistants must be members of your union. You maintain that this agreement is accepted throughout the licensed trade. I have been reliably informed that there are nearly 800 licensed premises in Dublin and that only about 500 employ your members. If I were to dismiss one of my men in order to replace him with one of your members, I would be contravening his constitutional rights. I am advised to inform you that no trade-dispute exists.” On the same date the plaintiff’s solicitor wrote stating that, if the threat to picket was not withdrawn, recourse would be had to the courts.
There was some further correspondence between the solicitors for the parties of which it is only necessary to quote the following paragraph from a letter of the 13th December, 1966, from the defendant’s solicitor to the plaintiff’s solicitor:”Our clients wish to make it clear that the trade dispute with your client is not to compel your client to force his non-union employees to join the Union. The stand taken by the Union is clear; it is the Union’s policy to seek to enforce the terms of the agreement not only on members of the Employers’ Association but on non-members of the Association. The Union members also require in accordance with the terms of the agreement that all employees of the trade should be members of the Union and engaged through the Union. Our clients see no reason why they should not exercise their legal rights to picket your client’s premises in furtherance of a legitimate trade dispute.”
The only other matter from the plaintiff’s evidence that I would refer to is this. The plaintiff never brought any pressure on Mr. Murphy to join, or not to join, the Union. No union members employed by the plaintiff ever complained about his own employment or the employment of non-union employees, or revealed any unwillingness to work with non-union employees. The plaintiff said that if his premises were picketed it would seriously damage his business. None of these matters was disputed.
The defendant gave evidence outlining the policy of the Union as to enforcing the agreement on all employers in the trade, whether members of the Association or not. At a meeting of the Executive Committee on the 30th November, 1966, a resolution was passed unanimously that, if the plaintiff did not comply with Clause 6 of the agreement, strike action would be taken. The plaintiff’s union employee was present at this meeting but was not present when the resolution was passed. Further, in evidence he said that there are public houses in the City of Dublin and in Dun Laoghaire Borough, where non-union employees are employed, which are approached and canvassed to get them to join”a closed shop is our policy” he said. I now quote some of his evidence from my notes:”There are some, but few, cases where union members are allowed to work in houses where non-union workers are employed. There is very little one can do about it. Before the Educational Case we could have requested the employers to get rid of the non-union men or else we would call out the union men. Since the decision we just require the employer to comply with Clause 6 of the agreement or, if he didn’t, we would serve strike notice and put on a picket. If the injunction were not granted we would have put on a picket.”
A large number of questions were put to the defendant by Mr. McCarthy and by me to try to elucidate how the plaintiff could comply with the requirements of the Union and the effect it would have on Mr. Murphy. I obtained a transcript of this part of the defendant’s evidence in order to consider fully its implication. It seems to amount to this. The only way for the plaintiff to comply with the Union’s demands was to dismiss Mr. Murphy, unless Mr. Murphy applied for and was accepted as a member of the Union. If he was dismissed and sought and obtained employment with another publican, the same procedure would be adopted; Mr. Murphy would be again out of work and so on ad infinitum. Faced with this dilemma, the defendant gave his evidence with hesitation but with complete frankness and could only fall back on this last line of defence. The Union does not say in so many words that the plaintiff must dismiss Mr. Murphy. All it does say is the plaintiff must comply with Clause 6 of the agreement or else it will picket his premises in furtherance of a trade dispute.
On this evidence two issues arise. First, was there a trade dispute? Secondly, if there was, is picketing justified having regard to the decision of the Supreme Court in Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Others (1)? A trade dispute is defined in the Trade Disputes Act, 1906, as “any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, . . . of any person . . .”There are numerous cases both here and in England as to what circumstances constitute a trade dispute within the definition in the Act. For a review of these authorities no better recourse can be had than to the judgment of Mr. Justice Budd in Educational Company of Ireland Ltd. and Another v.Fitzpatrick and Others (1) from p. 354 to p. 361 of the report. It is stated in many of these cases that the question of whether or not there is a trade dispute is a question of fact. That does not assist me. It seems to me to be a question of the interpretation to be put on the facts and of the interpretation of the wording of the definition of “trade dispute” in the Act. In this case, as in the Educational Company Case (1) as was so found by Mr. Justice Budd, there is not a direct dispute between employer and workmen, or between workmen and workmen; but in the Educational Company Case (1) there was found to be a dispute because the union employees of the company prompted and supported the dispute carried on by the union on their behalf. In this case there is no acceptable evidence that the only union member in the plaintiff’s employment took any action which could be interpreted as involving him in a dispute either with his employer or with his fellow employees. The way the defendant put the issue of the dispute seems to me to be thisit is the policy of the Union to enforce the agreement of July, 1938, on all publicans, whether members of the employers’ association or not, and the plaintiff disputed the Union’s right to take industrial action to enforce this policy.
It is my view that the circumstances of the dispute in this case do not amount to a “trade dispute” within the definition of the Act of 1906, but I do not wish to base my decision on this view as the second issue raised was apparently considered as of more fundamental importance to both parties.
On the second issue, the only question is whether the circumstances in this case are governed by the decision of the Supreme Court in the Educational Company Case (1) in which it was held that the provisions of the Act of 1906, which legalise picketing in furtherance of a trade dispute, are void as being repugnant to the Constitution when the object of the alleged dispute is to coerce people to join an association, a trade union, which they do not wish to join. The effect of the decision was expressed very clearly in the final part of his judgment by Kingsmill Moore J., at p. 398 of the report, as follows:”The Trade Disputes Act, 1906, can no longer be relied upon to justify picketing in aid of a trade dispute, where that dispute is concerned with an attempt to deprive persons of the right of free association or free dissociation guaranteed by the Constitution. The definition of trade dispute must be read as if there were attached thereto the words, ‘Provided that a dispute between employers and workmen or between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union or having as its object a frustration of the right of any person to choose with whom he will or will not be associated in any form of union or association shall not be deemed to be a trade dispute for the purposes of this Act.'”
The circumstances of this case are distinguishable from the circumstances in the Educational Company Case (1) in one feature only, namely, that the trade union in this case took no direct steps against Mr. Murphy. It did not say to Mr. Murphy:”You must join the Union if you wish to retain your employment.” It did not say to the plaintiff:”You must dismiss Mr. Murphy from his employment unless he joins the Union.” But its action and intentions constituted a subterfuge to bring about the same result. It insisted in its policy of requiring that every employee in the licensed trade should be a member of the Union and insisted in enforcing on the plaintiff the agreement for carrying out their policy although he was not a party to it; and its general secretary, the defendant, has acknowledged that the only way that the plaintiff could comply with its requirements was by dismissing Mr. Murphy from his employment because he was not a member of the Union, and the Union threatened that if the plaintiff did not do so his premises would be picketed in furtherance of the alleged trade dispute.
In the circumstances I must follow the decision of the Supreme Court in the Educational Company Case (1) and hold the picketing threatened would be unlawful and, therefore, that the plaintiff is entitled to the injunction sought in the prayer of his statement of claim.
Nolan Transport (Oaklands) Ltd. Plaintiff v. James Halligan,
Henry Nolan, Anthony Ayton and Services Industrial Professional Technical Union Defendants
[S.C. No. 187 of 1995]
[1999] IR 128
Supreme Court 15th May 1998
O’Flaherty J.
15th May, 1998
I agree with the judgment of Murphy J. on the two issues in the case:-
(1) Whether or not a trade dispute existed?
(2) Whether or not the union was entitled to authorise strike action having regard to the manner in which the “secret ballot” was conducted and the manner in which those voting actually voted? The evidence is clear that there was a trade dispute. The men, at the very least, had good grounds for thinking themselves dismissed. I am afraid that both employer and striking employees conducted themselves in a manner best calculated to bring about the maximum degree of misunderstanding as to their respective positions. Any form of conciliation, arbitration, or dispute resolution was zealously avoided.
The finding that the union was conducting affairs with the sole purpose or motive to get a foothold in the company and unionise the whole workforce cannot stand. If that had been the union’s motive, it went about it in the worst way possible.
So this tedious litigation dragged itself out for 28 days in the High Court. There had been a pit stop by way of an application for an interlocutory injunction, brought with no excessive haste – twelve months after the beginning of hostilities – which was refused by Keane J.
On reading through the sorry saga unveiled in these papers, I could not help but think that I was living in another era, at about the turn of the century. We have surely advanced from the culture that then prevailed. Unions are now very powerful bodies, with highly trained professional staff. The days of the “class struggle” should be regarded as long gone. On the other hand, employers have an obligation to accord trade unions a measure of respect; representing as they do the rights of the workers.
An unfortunate aspect of the present case is that the employer appears to have approached it on the basis that either all the workers joined the trade union or none of them joined and that the decision was to be made by the majority of the workers. But the constitutional right of each worker to join or not to join a trade union is well established in Irish law. No worker can be forced to join a trade union against his will and likewise no worker can be denied his right to join a trade union which is prepared to accept him. These are matters of constitutional right and are not capable of being resolved by a majority vote unless all the workers have freely agreed to have the matter so resolved.
The State, representing the rest of us ordinary citizens and taxpayers, has a very keen interest in seeing to the harmonisation of industrial relations. We all stand to lose too much where there is strife and conflict. We should now have advanced sufficiently in our respect for democracy and the rule of law in all its refinements to work out a better way. At this stage of our development, this country should be an example to other countries on how to avoid industrial conflict, and when conflict does arise on how to resolve it speedily. That is good for everyone; it will lead to more employment and increased trade. The whole point of the Industrial Relations Act, 1990, was to streamline this area of the law, to copper-fasten the special privileges of trade unions in many respects; to give them additional rights and, indeed, it is the whole point of s. 14 of the Act which provides for the necessity of having in the rules of a trade union a requirement to hold a secret ballot before a strike is called. This is primarily designed to strengthen the role of union management against the actions of maverick members, and to reverse the construction placed on the then existing law by the decision of this Court in Goulding Chemicals Ltd. v. Bolger [1977] I.R.211.
This is clear from a wording of sub-s. (3) which provides:-
“The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and onno other person.” (emphasis added)
Section 13 stands unaffected by whether there has or has not been a ballot. It provides:-
“(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.
(2) In an action against any trade union or person referred to in subsection (1) in respect of any tortious act alleged or found to have been committed by or on behalf of a trade union it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.”
Counsel for the defendants went too far, however, in saying that we should have no regard to a breach of the “secret ballot” provisions as far as this litigation is concerned. They submitted that the requirement of the legislation was that there should be provision in the union rules for the holding of secret ballots. If the rules did not so provide, then the sanction was that the union would be deprived of its negotiating license. While the necessity for secret ballots is not a direct requirement of the legislation, for my part I do not regard this as an important distinction. The purpose of this part of the legislation is clear: it is to strengthen the hand of union management by having a proper secret ballot before a strike is called. The ballot in this case, whether it was rigged or not, was certainly something of a shambles. The learned trial judge has detailed the various irregularities that occurred. The big fault with the whole operation, in my belief, is that there was not an impartial person in charge who would have made sure that a proper ballot was held with a due sense of decorum and correctness.
If there is one lesson that can be learned from this litigation it is surely that the requirements for having a proper secret ballot should always be observed. The experience of the integrity that returning officers bring to their task in conducting Dáil ireann elections is instructive. In any case where a secret ballot is required there should be correct ballot papers with the issue set forth clearly, and, ideally, an independent person should be brought in to supervise the whole operation and adopt much the same role as a returning officer does in the case of a Dáil ireann election. He or she should be impartial, and be seen as such, strict in seeing that the rules are observed and clear in the rulings made.
Therefore, while I agree that the legislation touching the holding of secret ballots is there primarily as a matter of internal trade union management, I reject the submission that once such a shambles as is disclosed as regards the “ballot” that was held here occurs we should simply turn a blind eye to it. The duty to observe the law devolves on everyone – I have already said that simply because the obligation comes through the rules rather than directly from the legislation is of no great importance – so there is a serious obligation on union management to give proper example to the rest of the people by ensuring that the requirements concerning the holding of a proper secret ballot are always observed. Once that is done, then there need be no repetition in the course of judicial proceedings of the circumstances surrounding the holding of the ballot. Things should be manifestly correct, so that time need never again be taken up with a long debate as to the rights and wrongs of the holding of any ballot.
After all, as I already indicated, the legislation solidifies and, indeed, expands the privileged position afforded by the law to trade unions. Privileges carry duties as well as rights.
That said, however, the essential position is that there was here a trade dispute and those engaged in it are protected, and the union has its statutory immunity from suit. This irregular ballot led to a lot of trouble, nonetheless, and many days were spent on it in the High Court. The union cannot avoid blame for that. This will have to be dealt with in deciding on the proper order that should be made on costs.
I would allow the appeal but with the same qualification that Murphy J. has set forth in the course of his judgment as to certain matters on which we should hear further submissions.
Denham J.
I agree with the judgment to be delivered by Murphy J.
Barrington J.
I also agree with the judgment of Murphy J.
Murphy J.
Background
The above named Nolan Transport (Oaklands) Limited has carried on the business of haulage contractors from premises at Oaklands, New Ross, County Wexford, since January, 1981. Previously James Nolan (the father) had carried on a similar business from the same premises. He discontinued the business carried on by him in 1980, as a result of financial and other difficulties.
The father and his wife, Joan, have thirteen children, namely, Elizabeth, Anne, Patricia, John, Raymond, Seamus, Noel, Brendan, Richard, Kevin, Joan, Oliver and Sally. The share capital of the plaintiff comprises thirteen shares of £1 and each of the thirteen children is entitled to one such share. Before the plaintiff company was formed, Patricia had had four years experience working in the father’s business. Raymond and Seamus were younger and had little experience of the business at that stage. In order to run the haulage business and to obtain the appropriate Department of Transport licence it was necessary for one of the management team to hold a certificate of professional competence. When the plaintiff was formed only the father had such a certificate. He remained involved in the management of the plaintiff until Patricia obtained the necessary certificate. There is an express finding by the learned trial judge that since that time the father has taken no part in the management of the plaintiff. He is employed largely in a labouring capacity in the plaintiff’s yards with a particular responsibility for the lorry wash and the operation of a J.C.B. which is used to spread gravel across the yard on the premises.
As the children obtained experience they undertook particular areas of expertise. Patricia Nolan became the chief executive and company secretary. Elizabeth had accountancy experience and is responsible for the accounts and management of the finances of the plaintiff. John manages the computer department. Seamus is the garage manager and his task is to manage the yard operation and to hire and fire drivers. Raymond, Noel and Kevin have responsibility for ensuring that work is carried out in different geographical areas. Brendan and Richard have particular areas of responsibility and others of the children work in the business during their school holidays. Joan Nolan, their mother, is the chairperson and non-executive director of the plaintiff.
James Halligan, the first defendant, had been employed by the plaintiff as a driver and in other capacities from time to time from 1981. He returned to the plaintiff in about 1990 and about the end of 1991, resumed working as a driver. Henry Nolan, the second defendant, has been a driver with the plaintiff since June, 1992. Anthony Ayton is a branch official with the fourth defendant (“the union”). At all material times the third defendant worked in the Waterford branch of the union where the secretary was Ms. Margaret DeCourcey. Another official was Ms. Maura Caddigan who joined the Waterford branch in January, 1993.
The plaintiff employed approximately 55 drivers. In December, 1992, some of those drivers wished to join a trade union. Apparently they had a grievance about their pay and conditions. In January, 1993, union membership application forms were distributed. On the 17th January, 1993, a meeting of drivers as union members took place. The first and second defendants and five other drivers were present in addition to the third defendant. Following on that meeting the third defendant wrote to the plaintiff on the 18th January, 1993, claiming that his union had accepted into membership “a large number of your company employees” and seeking a meeting “to set in train the necessary steps to establish what we hope will be a good working relationship”. That letter was addressed to Mr. John Nolan.
On the 19th January, 1993, the first and second defendants and a third driver, Paddy O’Leary, in the course of their duties met the father in the plaintiff’s yard. On the following day, the 20th January, 1993, all three drivers attended at the plaintiff’s premises where they had occasion to meet Mr. Seamus Nolan. Also on the 20th January, 1993, telephone conversations took place between Ms. Margaret DeCourcey and Ms Patricia Nolan as well as a call between the second defendant and Ms. Patricia Nolan. Finally, in relation to the events of that day, Ms. Margaret DeCourcey wrote to Mrs. Nolan but no reply was received to that letter.
The defendants contended that they were dismissed from their employment with the plaintiff by the father on the 19th January, or alternatively, that the conduct of the father and the other members of the Nolan family on the 19th and 20th of January, 1993, led them to believe that they had been so dismissed. The learned trial judge in his judgment expressly rejected the claim that the defendant drivers had been dismissed by the father. The learned judge held that the father did not have authority to dismiss employees and that the defendants recognised that this was so.
On the 24th January, 1993, a further meeting of the members of the union was held in Waterford. Whilst it appears that the relevant union membership had grown to 23 at that stage those present comprised only five members and two union officials, that is to say, the first three defendants, three further drivers and Ms. DeCourcey. A decision was made to hold a ballot for industrial action. That ballot was held over a number of days at the terminal in Rosslare, the terminal in Pembroke and on a boat plying between those terminals. In all 23 members of the union voted.
By a circular letter dated the 25th January, 1993, the plaintiff informed its employees that they did not have to be a member of a union to work for the plaintiff and requested each employee to sign and return the letter to the plaintiff if he was satisfied with his conditions of employment. All of the office staff of the plaintiff signed the form and all but four, or perhaps five, of the drivers likewise signed.
At the meeting of the Waterford branch of the union held on the 31st January, 1993, seven driver members were present as was the third defendant and Ms. DeCourcey. The votes were counted and the result which was declared and circulated was that twenty had voted in favour of strike action and three against. A further meeting of the members was called for the 7th February. On the 2nd February, 1993, strike notice was served for the 11th February.
Between the 2nd and the 10th February, 1993, considerable activity took place. The union initiated a trenchant campaign in support of the planned industrial action whilst the overwhelming majority of the drivers expressed dissatisfaction with it. A petition disassociating themselves from industrial action and expressly refusing to withdraw their labour on the 11th February, 1993, was signed by 48 of the plaintiff’s drivers.
At the meeting of the trade union held on the 7th February, 16 drivers were present. There was a considerable controversy as to what took place at the meeting but the stark fact is that 11 of the drivers gave evidence to the effect that they did not understand the result of the ballot because they were aware that they had themselves voted against industrial action. As the evidence of the drivers was accepted by the learned trial judge it necessarily followed that the result of the ballot which had been declared on the 31st January, was dishonest and the inescapable conclusion reached that the ballot had been “rigged”. If a twelfth driver had voted against industrial action – and there was evidence that he did – then the vote would have been against industrial action.
Following the expiration of the strike notice, a picket was placed on the plaintiff’s premises on the 11th February, 1993. The picket comprised the first three defendants together with Billy Clarke and Patrick O’Leary. They were subsequently joined by Chris Halligan and David Jones. Notwithstanding the picket, the business of the plaintiff has continued and indeed its turnover increased. The relationship between the plaintiff and the union and between the striking and non-striking employees has been a bitter one with each side making serious allegations against the other. The industrial action in the present case appears to have been particularly abrasive. Those who took up picket duty in February, 1993 – with the exception of Mr. David Hughes who is resident in Wales – continued with their picket. An application for an interlocutory order to restrain such picketing was made in March, 1994, but it was granted (by Keane J. in March, 1994) only insofar as the picketing was otherwise than peaceful.
The plenary summons herein was issued on the 11th February, 1993. The relief claimed therein was as follows:-
“1. A declaration that the actions of the defendants in endorsing industrial action against the plaintiff were (and are) unlawful in that they constitute a wrongful inducing of breaches of the plaintiff’s commercial contracts and an interference in the plaintiff’s business relations.
2. A declaration that the industrial action as initiated by the defendant trade union is unlawful in that it is in contravention of the rules of the trade union as stipulated at s. 14(2) of the Industrial Relations Act, 1990.
3. An injunction restraining the defendants, their servants and agents from:-
(a) committing acts of intimidation against the plaintiff’s employees, their servants or agents;
(b) imposing or seeking to impose an embargo on the plaintiff’s business, whether by communicating with the plaintiff’s customers, business associates, consignors, consignees or otherwise;
(c) disseminating or otherwise publishing falsehoods concerning the plaintiff calculated to damage the plaintiff in its business and in its relations with its employees;
(d) unlawfully conspiring to damage the plaintiff in its business relations; and (e) unlawfully inducing breaches of the plaintiff’s commercial contracts.
4. Damages as against the defendants for unlawful interference with the plaintiff’s trade and business and for inducing breaches of the plaintiff’s commercial contracts.
5. Damages for interfering with the plaintiff’s business relations and economic interests.
6. Damages for defamation and/or malicious falsehoods.”
The statement of claim was delivered on the 22nd June, 1993. It was amended twice. The plaintiff claimed that the defendants embarked on a campaign of vilification against the plaintiff by the dissemination of circulars and bulletins containing malicious falsehoods in relation to the plaintiff. It was in the second amendment that the plaintiff sought to impeach the ballot for industrial action on the basis (a) that it was not secret (b) that it was not carried out in accordance with the rules of the union and (c) that a majority had voted against the industrial action. The contention made by the plaintiff, which is of particular importance, is the plea that there was nobona fide trade dispute for the purposes of the Industrial Relations Act, 1990 and that the defendants, in promoting and maintaining industrial action, had done so solely for the purpose of coercing the plaintiff’s work force into joining the union despite their concerted opposition thereto.
The action came on for hearing before Barron J. in June, 1994 and continued for some 27 days during which he heard nearly 100 witnesses.
The learned trial judge identified the main issues in the case as follows:-
“1. Whether or not a trade dispute existed?
2. Whether or not the union was entitled to authorise strike action having regard to the manner in which the secret ballot was conducted and the manner in which those voting actually voted?”
The learned trial judge found that there was nobona fide trade dispute. His conclusion can be summarised from the following excerpts taken from pp. 89 and 90 of the transcript of the judgment as follows:-
“I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage . . . I do hold, however, that this aspect of the dispute was not pursuedbona fide to get the two men back to work but as part of the policy to take all the drivers into membership . . . a claim to negotiate on behalf of all the workmen in a particular employment is an attempt to deprive those who are not members of their right of free association. On the basis of the authorities to which I have referred this cannot form the basis of a trade dispute. Further, where what would be a trade dispute is put forward as a cloak for the real dispute, the element ofbona fides is lacking and so, even what would otherwise have been a genuine dispute, ceases to be such.”
In relation to the interpretation of the Industrial Relations Act, 1990 (Part II) the learned trial judge expressed his views on a number of important issues. In particular (at p. 78 of the transcript) he said:-
“Finally, it is essential before any industrial action is taken that those who are taking the industrial action shall first have had a secret ballot on the issue. If a majority is against industrial action then that is an end of the matter. If a majority is in favour of industrial action then that is a matter for the union concerned to determine whether or not the industrial action should take place.”
The learned judge rejected the argument put forward on behalf of the union to the effect that members were not entitled to give evidence as to how they voted on the secret ballot but although he did have, as he pointed out, evidence which if accepted would show that thirteen out of twenty-three voted against the industrial action he did not make an express finding to that effect. He expressed the view that it would not be material to do so. Instead he said:-
“What is material is whether or not the declared result was false and was known to be false.”
And he went on (at p. 67) to conclude:-
“Having regard to all the circumstances and in particular, to my belief that they (the non-striking drivers) gave fair and honest evidence, I am satisfied that the declared result did not reflect the votes actually cast and was deliberately false.”
The learned trial judge concluded that a substantial loss in the turnover of the plaintiff in the dry freight sector of its business resulted “from the activities of the defendants in the prosecution of their industrial action”. He also held that damage had been caused to the plaintiff by the defamation and malicious falsehoods by the defendants. He awarded the plaintiff a sum of £601,000 damages against the defendants. Of that sum £25,000 was expressly attributed to the defamation and malicious falsehoods; £400,000 to loss of profits and £176,000 to additional fuel costs. In addition, an injunction was granted restraining the defendants from picketing the plaintiff’s premises at Oaklands, New Ross, County Wexford or otherwise engaging in industrial action against the plaintiff. It was from that judgment and order of Barron J. that the defendants have appealed to this Court.
Issues of fact
In the course of his judgment the learned trial judge made a number of express and unequivocal findings of fact. For the greater part he accepted the evidence tendered on behalf of the plaintiff and rejected in forthright terms much of the evidence given on behalf of the defendants. The father did not give evidence but the learned trial judge evaluated the evidence of Patricia Nolan, Seamus Nolan and the non-striking drivers (at p. 22) in the following terms:-
“I am satisfied that Patricia Nolan was a reliable witness. She was clearly a competent business woman and gave clear evidence as to the effect which the strike was having on the plaintiff’s business. Seamus Nolan was also a reliable witness. I was impressed by his understanding of the characters of the men with whom he had to deal and in particular the character of both his father and of the first defendant. There were times when he reacted at the encroachment of the picket onto the plaintiff’s premises. However, this does not, in my view, affect the reliability of his evidence. I was impressed by the manner in which non-striking drivers gave their evidence and I am satisfied that they are doing their best to tell the truth and have substantially done so.”
Unhappily it must be recorded that the learned trial judge found it necessary to make findings in relation to the evidence tendered on behalf of the defendants in the following terms at p. 23:-
“The main witnesses for the defendants were the three union officials and the striking drivers. The third defendant was the official most directly concerned with taking the drivers into membership of the union and with prosecuting the industrial action. He is an experienced trade union official with a good knowledge of employment law. I am unable to accept his evidence on a number of important aspects of the case and in general found his evidence to be unreliable. Margaret DeCourcey as branch secretary is a highly qualified trade union official. She was not as involved as the third defendant and following the meeting on the 7th February, 1993, she was on maternity leave for four months. As with the evidence of the third defendant, I am unable to accept her evidence on a number of important aspects and in general found her evidence to be unreliable. Maura Caddigan only dealt with the voting on the 25th January, 1993, but I regret that I cannot accept that she informed each of the drivers who voted that three issues were involved. So far as the striking drivers are concerned I regret that I find their evidence is in the main unreliable.”
Whilst it was recognised that an appellate court, dependant as it is on a written record of the oral evidence given at a trial, would not normally reject a finding of fact merely because an alternative version of the oral testimony might seem more acceptable, the defendants contended that this was one of the exceptional cases in which a finding of primary fact should be set aside. It was contended that the allegation of ballot rigging was improbable to the highest degree and inconsistent with other established facts.
The argument that this finding of fact could be rejected was supported by a passage quoted from the judgment of Henchy J. in Northern Bank Finance v. Charlton [1979] I.R. 149 at p. 191 in the following terms:-
“The court of appeal will only set aside a finding of fact based on one version of the evidence when, on taking aconspectus of the evidence as a whole, oral and otherwise, it appears to the court that, notwithstanding the advantages which the tribunal of fact had in seeing and hearing the witnesses, the version of the evidence which was acted on could not reasonably be correct.”
I would like to think that no trade union or other responsible body would engage in the misconduct of which the defendants were convicted. Even making every allowance for the bitterness and hostility which industrial action can engender, any court would and should be slow to reach such a conclusion. Apart from the legal and moral implications of such a condemnation the probability of detection – particularly in relation to the allegation of ballot rigging – would render such an action unlikely. On the other hand the learned trial judge had ample evidence before him on which to make his judgment. Not only that, he had the opportunity during a lengthy trial and over a variety of issues to judge the credibility of the witnesses. This was a case in which the advantage enjoyed by the learned trial judge in observing the demeanour of the witnesses and evaluating their credibility was inestimable. Furthermore, it was a distasteful task which the learned trial judge clearly undertook with the greatest care.
In my view this is not a case in which this Court would be justified in setting aside any of the findings of fact made by the learned trial judge based on the credibility of witnesses. It seems to me, therefore, that the function of this Court is effectively confined to reviewing the finding of the learned trial judge on the two issues identified by him. Was there a trade dispute?
In relation to the issue as to whether a trade dispute existed the vital question is whether the first and second defendants or their union believed that the three employees or some of them had been dismissed from their employment with the plaintiff in January, 1993.
As already mentioned the father had, prior to the incorporation of the plaintiff, operated a road haulage business himself. The corporate business was, however, run by his wife and his children and he was employed merely as a labourer. Whilst the first and second defendants and their colleague Patrick O’Leary accepted that the father did labouring work they were emphatic that he”was the boss” as far as they were concerned. Their evidence in that behalf was rejected by Barron J.
The first and second defendants and Mr. O’Leary gave evidence as to meetings which each of them had with the father on the 19th January, 1993. This was at the stage when efforts to recruit company employees into the union had been initiated and clearly the father – and his children – opposed and resented the attempted unionisation. Each of the three witnesses swore that in the course of their meeting with the father he was excited and rude. His language to them was crude. Their evidence was to the effect that he criticised them for attempting to unionise the plaintiff and ridiculed the contribution which a union might make. Not untypical was the evidence given by the second defendant of his encounter with the father in the following terms (Vol. 23, qs. 581):-
“James Nolan Senior came over. He started f . . .ing and blinding, who did I think I was by asking the lads to join a union why would I not f . . . off back to where I came from”
In relation to a burst tyre on the first defendant’s vehicle it was said that the father inquired “Would S.I.P.T.U. repair that?”
The three employees who claim to have been dismissed gave evidence of the words used to them by the father which were essentially those which the first defendant says were spoken to him by the father (Vol. 22, qs. 278) namely:-
“Just to f . . . off again and not to set my foot in the place again.”
It is relevant to record what the first and second defendants themselves say as to the context in which those offensive remarks were made. It was the first defendant’s evidence that his initial discussion with the father related to a fire which had occurred in the home of another driver – Mr. John Cooney. Apparently the father had – rather sensitively – warned the first defendant not to say anything to Mr. Cooney about the fire because arrangements had been made to have somebody belonging to Mr. Cooney’s family to come up to the yard to break the news to him. Subsequently there was some discussion about the first defendant not turning off lights in his lorry and then a discussion about whether or not the first defendant had a passport as there was some question of his taking a lorry to Spain. It was subsequently that the father raised the question about the union, became critical and, according to the first defendant, told him to”f . . . off”. It was the evidence of the first defendant that in those circumstances he concluded that he had been “sacked”.
The evidence of the second defendant and Mr. Patrick O’Leary as to their experiences on the night of the 19th January, 1993, was similar but not identical. In both cases there was a meeting with the father in which he was critical in one form or another of the trade union and the efforts made by the particular employee to involve trade unions in the business of the plaintiff. The evidence in each case was that the meeting concluded with the father telling the particular employee to”f . . . off” which the employee interpreted as meaning he was being sacked. As the father was not called to give evidence, the accounts given by the employees of these meetings were uncontradicted.
Having regard to the findings of fact made by the learned trial judge it is clear that the father did not himself have power to dismiss employees. Nor could the purported dismissal have amounted to the implementation of an earlier decision by the management of the plaintiff. If such a decision had been taken prior to the heated exchanges it is inconceivable that Mr. Raymond Nolan would have given instruction – as undoubtedly he did – to each of the drivers as to their duties for the following day. Again the evidence given as to the conversation which took place between the father and the first defendant in relation to the problems concerning Mr. Cooney would suggest that at the commencement of the meeting the father had no plans to sever the relationship between the first defendant and the plaintiff. The question remains, however, as to what the employees reasonably understood as a result of the clear but crude message given to them by a person who acted as a labourer in the employment of the plaintiff owned and managed by his family.
It is the evidence of the employees that they believed that they were dismissed. However, they did consult with the officials of the union on the evening of the 19th January, when they were advised to turn up for work the following day and “verify” whether or not they had been dismissed.
The first and second defendants and Mr. O’Leary did attend at the plaintiff’s premises the following day. In fact Mr. O’Leary worked normally on that day. The first and second defendants met Seamus Nolan on their arrival. Apparently his first reaction was said to have been that he knew nothing about the dispute but when the second defendant got into his truck Seamus told him to”f . . . off out of the yard” and to bring all his bits and pieces with him. A surprising feature of this unpleasant scene is that Mr. Seamus Nolan was said to have referred to the name “O’Rourkes” as having been written on the top of the lorry although the second defendant could not explain the significance of this reference. It was the first defendant’s evidence that when he encountered Mr. Seamus Nolan on the morning of the 20th January and specifically asked him what was going on that Mr. Seamus Nolan said:-
“You know well what is going on. There is nothing here for you.”
The foregoing represents the substance of the evidence given by the first and second defendants which they say satisfied them that they had been dismissed.
In fact Mr. Seamus Nolan had given his evidence before that of any of the defendants. In relation to the events of the morning of the 20th January, particularly his meeting with the first defendant, he said he was asked “Am I sacked or what?”. He said that his response to that question was to laugh and to add “You know well what you are doing”. Mr. Seamus Nolan explained why he laughed and why he said what he claims to have said but it was his own evidence that the first defendant then turned away and walked out of the yard. Mr. Seamus Nolan went on to explain that as a matter of principle and policy he did not seek to dissuade the first defendant from leaving. In relation to the second defendant, Mr. Seamus Nolan said that he saw him in his truck and heard him say “f . . . it, I don’t think it will work”. Mr. Seamus Nolan said that the second defendant then stopped the lorry, got out, banged the door and walked out of the yard a hundred yards or so behind the first defendant. Also on the 20th January, 1993, certain phone calls and communications took place. Ms. Margaret DeCourcey undoubtedly spoke on the telephone to Ms. Patricia Nolan. The learned trial judge preferred the evidence of Ms. Nolan as to what was said in the course of that conversation. It was her recollection that she was asked whether the second defendant had been dismissed and she said that he was not. Ms. Nolan did not recall any inquiry about the first defendant but did agree that the expression “bully boy” had been used by her or a member of her family in relation to the conduct of the first defendant. There was another phone call between the second defendant and Patricia Nolan and again it was her recollection of that phone conversation that she informed the second defendant that he had not been dismissed. One matter about which there is no controversy is the letter written on the same day by Ms. DeCourcey to Ms. Patricia Nolan in which Ms. DeCourcey set out her recollection of her earlier phone call and invited Ms Nolan to reply to the letter within one week to the allegation that both drivers, the first and second defendants, had been dismissed from the plaintiff for union activities. Some importance must be attached to the fact that no reply was made to that letter.
In those circumstances did the employees who subsequently went on strike believe that they had been dismissed from their employment with the plaintiff?
There is, I believe, an ambiguity in the conclusion expressed by the learned trial judge (p. 88 of the transcript) on that issue. What he said is as follows:-
“If I accept as I do, the evidence on behalf of the plaintiff, then no one was dismissed either on the 19th or the 20th January, 1993. There was no more than a series of rows on the evening of the 19th followed by a refusal to work on the part of the first two defendants on the morning of the 20th January. Nevertheless, if the union bona fide believed that they had been dismissed, a trade dispute would have existed until such time as the plaintiff had clearly and unequivocally made it clear to the men and to the union that there was no impediment to their return to work.”
It seems to me that the inference to be drawn from the events of the 19th January, is that the father purported to dismiss the three employees although he had no authority so to do. On the other hand the events, or non-events, of the 20th January, would appear to point strongly to the conclusion that Ms. Patricia Nolan and Mr. Seamus Nolan were ratifying the attitude adopted by their father the previous day. Certainly the plaintiff did not – at that stage – “clearly and unequivocally” inform the men and the union that there was no impediment to their return to work.
It is difficult to see how the events of the 19th January, could be dismissed as a “series of rows”. Whilst it is undoubtedly the case that the father was infuriated by the trade union activities of the particular employees, there is no suggestion that on the evening in question any of them did anything to provoke the father or to engage in any argument with him. If he had had the authority which he purported to exercise the words spoken would have constituted a dismissal. The contention made by the plaintiff that the dismissals were contrived by the employees does not seem to be supported by any version of the facts. Furthermore, if the plaintiff had suspected that the three drivers or any of them were pretending to have been dismissed or taking advantage of a temperamental outburst by the father there were three distinct opportunities made available to them “to put the record right”. Mr. Seamus Nolan when asked the following day by the first defendant the specific question – as he agreed he was asked – whether he had been sacked could easily have said “No, you are not sacked”. Patricia Nolan, whether or not asked by Ms. DeCourcey, could likewise have said in her telephone conversation not only was the second defendant not sacked but”Neither was James Halligan”. Again the letter of the 20th January, afforded the plaintiff the specific opportunity of denying emphatically that any of the three drivers had been sacked and perhaps adding, if that was Ms. Nolans’s view, that the allegations of dismissal were a complete fabrication. As the judge pointed out, there was no evidence tendered by any official of the union as to their belief: but there was sworn evidence by the employee defendants as to their understanding of the position.
As I understand it, the learned trial judge did not find it necessary to reach any concluded judgment on the issue as to whether the parties believed that the employees had been dismissed. He dealt with the matter (at p. 89 of the transcript) in the following terms:-
“The silence of the plaintiff in reply to the letter of the 20th January would normally have led the union to believe that the first two defendants had been dismissed, even though Margaret DeCourcey had been told that the second defendant had not been dismissed.
However, these dismissals cannot be isolated from the other events taking place at that time. In relation to those events, I have found that the union acted improperly. I cannot divorce those matters from the issue of the dismissals. It seems to me that the union was following one overall strategy and that was to represent the entire work force. I do not believe that the union ever regarded this issue of dismissals as more than an event to use to its advantage. Counsel for the plaintiff says that these dismissals were contrived. The rows which led to the allegations were not contrived. I do hold, however, that this aspect of the dispute was not pursued bona fide to get the two men back to work but as part of the policy to take all the drivers into membership.”
I believe that the learned trial judge accepted that the first defendant did have an honest belief that he had been dismissed from his employment. The learned judge held, however, that the existence of a trade dispute based on that belief did not in the circumstances provide the statutory defence or immunities ordinarily available to employees and trade unions. What Barron J. decided was that, first, the dispute relating to the employment of the first defendant and the other drivers was not in truth or in substance the injustice which the union sought to remedy by the industrial action and, secondly, that the true purpose of that industrial action was to coerce all of the employees of the plaintiff into the membership of the union.
I find myself in disagreement with Barron J. as to the inferences which he drew in relation to the motivation and purpose of the union and the legal principles which are applicable where industrial action is undertaken with a view to achieving more than one objective. The trial judge adverted to a number of factors including the speed with which events unfolded; the absence of proper consultation for the purpose of considering industrial action; the publication of slanted and dishonest communications by the union officials; exaggerated statements as to the number of drivers who had joined the union; the failure of previous efforts to organise the union within the plaintiff. These were the factors which the judge concluded supported the allegation “that the real purpose of the union’s actions was to represent the entire work force”. I do not agree that those factors would justify the inference that a trade union was attempting or would attempt to institute industrial action for the purpose of coercing an employer and its employees into a closed shop agreement. I would readily accept that any trade union would wish to expand its membership and the extent of its representation in any industry or with any particular employer but I would be very slow indeed to infer that a trade union would, in the present state of the law, attempt to impose a closed shop.
The Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Ors. (No. 2) [1961] I.R. 345, is long established authority for the proposition that the Trade Disputes Act, 1906, could not be relied upon to justify picketing in aid of a dispute concerned with an attempt to deprive persons of the right of association (or disassociation) guaranteed by the Constitution. As Kingsmill Moore J. said (at p. 398):-
“The definition of trade dispute must be read as if there were attached thereto the words, ‘Provided that a dispute between employers and workmen or between workmen and workmen as to whether a person shall or shall not become or remain a member of a trade union or having as its object a frustration of the right of any person to choose with whom he will or will not be associated in any form of union or association shall not be deemed to be a trade dispute for the purposes of this Act’.”
In that case it was argued that the dispute was being used “as an instrument or a cloak” to defeat the rights of certain aggrieved workers. Those employees of the Educational Company, who were members of a trade union, voted to refuse to remain at work with fellow employees who were not members of that union. When the management of the plaintiff company declined to compel any of the employees to join the union concerned it was resolved by the executive committee of that union to serve strike notice in support of their demands. It was clearly and frankly asserted then, though it might be surprising now, that the union and its members had the right to engage in a trade dispute for the purpose of compelling fellow members to join the trade union. There was nothing secretive or underhand about the actions undertaken by the union or its members. Nor was there any real doubt but that the dispute was or would have been a dispute within the meaning of the Act of 1906, as enacted. The issue was whether the protection afforded by that Act could be availed of where the industrial action to be taken infringed the right of the non-union workmen’s constitutional right of free disassociation.
The judgment in Educational Company of Ireland Ltd. and Another v. Fitzpatrick and Ors. (No. 2) [1961] I.R. 345, contained a number of references to a trade dispute being “genuine” or “bogus” and to “disputes being engineered for the aggrandisement of the union” but there was never any doubt as to what the purpose of the strike was in that case. It was to compel particular employees who did not wish to do so to join a trade union.
The present case is almost totally the reverse of Educational Company of Ireland Ltd. v. Fitzpatrick (No. 2) .Here the trade union disavow any intention to recruit all the drivers in the plaintiff or to compel any of them to join the union or to pressurise their employer to achieve that result. The expressed aims of the industrial action and the mandate expressly sought by the union related to the reinstatement of employees who the union claimed had been dismissed. It could never be suggested that that purpose, if genuine, offended any constitutional provision.
The learned trial judge placed very considerable reliance on an extract quoted from the judgment of Ó Dálaigh J. (as he then was) in the Silver Tassie Company Ltd. v. Cleary (1956) 92 I.L.T.R. 27 (at p. 31) in the following terms:-
“The dispute must be genuine and not merely colourable. It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute, but rather it depends on thebona fides of the parties.”
In fact Ó Dálaigh J. was dealing with two different concepts in those sentences. He had quoted Conway v. Wade [1909] A.C. 506, as authority for the proposition that “a mere personal quarrel or grumbling or an agitation will not suffice: it must be fairly definite and of real substance”. It was in that context that he explained that “The (trade) dispute must be genuine and not merely colourable”.
The entire basis of Silver Tassie Company Ltd. v. Cleary (1956) 92 I.L.T.R. 27, was that an employee of the plaintiff company had been dismissed – allegedly on the grounds of redundancy – and his union demanded his reinstatement and took industrial action in pursuance of that demand. It was contended that the demand for reinstatement and its refusal simpliciter constituted a trade dispute. Neither Dixon J. in the High Court nor Ó Dálaigh J. in the Supreme Court dealt with the issue on that basis. They both held that there was a trade dispute where the employee bona fide believed that there were no proper grounds for his dismissal. Dixon J. had expressed his views on the matter (at p. 29) in the following terms:-
“It was the function of the court to decide whether such a dispute existed but it was not the function or right of the court to decide whether the attitude or belief of the employee or union was a well founded one, except insofar as the complete lack of any reasonable basis for the particular attitude or belief might lead to the conclusion that it was not a genuine or bona fide one. The absence of bona fides would involve the absence of any genuine dispute.”
It was that view which Ó Dálaigh J. was upholding when he went on to say at p. 31:-
“It is quite clear that the genuineness of a dispute does not depend upon what are the true facts of the dispute but rather it depends on the bona fides of the parties.”
That sentence read independently of the facts under consideration can be misleading and perhaps misled the learned trial judge. Taken in context it does not authorise a review of the conduct of those engaged in industrial action to determine their motivation or ultimate ambitions. Applied to the facts of the present case the conclusions of the High Court and the Supreme Court in Silver Tassie Co. Ltd. v. Cleary (1956) 92 I.L.T.R. 27, would only justify the court in the instant matter in considering whether any evidence existed to justify the belief of the first defendant and his union that he had been dismissed, and more particularly, wrongfully dismissed, from his employment with the plaintiff. Having regard to what the father said, and what Mr. Seamus Nolan and Ms. Patricia Nolan did not say, as to the first defendant’s employment with the plaintiff provides at the very least a reasonable basis for the belief claimed by the first defendant and his union. In the circumstances I believe that the dispute between the defendants and the plaintiff wasbona fide in the sense that the first defendant had an honest belief for which there were reasonable grounds and further that the dispute was genuine in the sense that it represented the immediate quarrel between the parties. I would hesitate to conclude that the particular factors identified by the learned trial judge in his judgment, however reprehensible they may have been, justified the inference of an intention on the part of the union to compel the plaintiff’s employees to join the union. Even if that could be identified as the ultimate goal of the union it did not represent the current dispute. In the very nature of the declared aims of the dispute I do not see how it could have achieved the ambitions which have been attributed to the defendant union. Perhaps successful industrial action would have enhanced the standing of the union with many of the employees but a gain in membership in that way could not be challenged as unconstitutional or improper. At worst it would seem to me that the irregular and improper conduct in which the union was engaged might suggest a willingness by it to take industrial action in the future for an improper purpose but no future plan could render unlawful a dispute which was protected by the relevant legislation nor, indeed, render lawful a current dispute which did not have the necessary statutory ingredients to gain such protection.
Part of the difficulty arises from the fact that lawyers and judges have used the words “bona fide trade dispute” with different meanings and in different contexts. If employers and workers both acknowledge themselves to be engaged in a trade dispute there is no difficulty in describing it as a bona fide trade dispute. But a bona fide trade dispute may also exist where one party denies that there is any dispute and the other believes that he has been wronged and is in dispute as a result. On the other hand an outside party or “meddler” who had no legitimate interest of his own to protect but who stirred up trouble in a business for reasons of malice or spite could not claim to be engaged in a bona fide trade dispute. This kind of case, which must surely be rare, was referred to by Lord Loreburn in Conway v. Wade [1909] A.C. 506, where he said at p. 512:-
“If however, some meddler sought to use the trade dispute as a cloak beneath which to interfere with impunity in other peoples work or business, a jury would be entirely justified in saying that what he did was done in contemplation or in furtherance, not of the trade dispute, but of his own designs, sectarian, political or purely mischievous, as the case might be. These words do, in my opinion, in some sense import motive, and in the case I have put a quite different motive would be present.”
If however, a bona fide trade dispute does exist between an employer and workers, some of whom happen to be members of a trade union, the trade union is entitled, within the Constitution and the law, to support its members who are in dispute. That, in doing this, it may be partly motivated by the aim of impressing its members and other workers and enhancing its own reputation and membership appears to me to be quite irrelevant as long as it acts within the law and does not attempt to infringe the constitutional right of each worker to join or not to join a trade union as he himself thinks best.
It follows that the defendants were entitled to the statutory immunities conferred on those engaged in activities in furtherance of a trade dispute save insofar as those privileges were removed or restricted by the Industrial Relations Act, 1990.
Clearly this legislation is of historic importance. It repealed in whole the Trade Disputes Act, 1906, which had for nearly a century provided the legal framework by which industrial action had been governed. Whilst many of the concepts enshrined in the Act of 1906 were preserved and much of the detail re-enacted, significant amendments have been made to the previous legislation. Clearly the legislature sought to achieve a greater degree of responsibility by unions and their members in pursuing industrial action; additional protections for trade unions which acted with that sense of responsibility and a degree of discipline within the trade union movement which would ensure that settlements negotiated with employers would be observed by all trade unionists.
Perhaps the most revolutionary provision of the Act of 1990 (Part II) was s. 14 which provides as follows:-
“(1) This section shall come into operation two years after the passing of this Act (“the operative date”).
(2) The rules of every trade union shall contain a provision that:-
(a) the union shall not organise, participate in, sanction or support a strike or other industrial action without a secret ballot, entitlement to vote in which shall be accorded equally to all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action;
(b) the union shall take reasonable steps to ensure that every member entitled to vote in the ballot votes without interference from, or constraint imposed by, the union or any of its members, officials or employees and, so far as is reasonably possible, that such members shall be given a fair opportunity of voting;
(c) the committee of management or other controlling authority of a trade union shall have full discretion in relation to organising, participating in, sanctioning or supporting a strike or other industrial action notwithstanding that the majority of those voting in the ballot, including an aggregate ballot referred to in paragraph (d), favour such strike or other industrial action;
(d) the committee of management or other controlling authority of a trade union shall not organise, participate in, sanction or support a strike or other industrial action against the wishes of a majority of its members voting in a secret ballot, except where, in the case of ballots by more than one trade union, an aggregate majority of all the votes cast, favours such strike or other industrial action;
(e) where the outcome of a secret ballot conducted by a trade union which is affiliated to the Irish Congress of Trade Unions or, in the case of ballots by more than one such trade union, an aggregate majority of all the votes cast, is in favour of supporting a strike organised by another trade union, a decision to take such supportive action shall not be implemented unless the action has been sanctioned by the Irish Congress of Trade Unions;
(f) as soon as practicable after the conduct of a secret ballot the trade union shall take reasonable steps to make known to its members entitled to vote in the ballot:
(i) the number of ballot papers issued,
(ii) the number of votes cast,
(iii) the number of votes in favour of the proposal,
(iv) the number of votes against the proposal, and
(v) the number of spoilt votes.
(3) The rights conferred by a provision referred to in subsection (2) are conferred on the members of the trade union concerned and on no other person.
(4) Nothing in this section shall constitute an obstacle to negotiations for the settlement of a trade dispute nor the return to work by workers party to the trade dispute.
(5) The First Schedule to the Trade Union Act, 1871, is hereby extended to include the requirement provided for in subsection (2).”
It has been said that s. 14 aforesaid requires that industrial action should be authorised by a secret ballot but such a statement is misleading. The statute requires that the rules of the trade union should contain provisions in relation to such ballots and imposes sanctions for the failure either to have such rules or to observe them. On the face of it, the participation by a trade union in or its support for a strike or other industrial action without the authority of a secret ballot of its members would be a matter of internal management of the affairs of the union and constitute a breach of contract between the executive of the union and the membership rather than a breach of statutory duty. This interpretation is confirmed by s. 14(3) which expressly provides that the rights in relation to a ballot are “conferred on the members of the trade union concerned and on no other person”.
However, that important distinction in principle having been made, it must be recognised that the legislature can, and in the Act of 1990 did, confer particular rights and duties on “outsiders” in consequence of or by reference to the holding of a secret ballot. An express provision to this effect is contained in s. 17 of the Act of 1990 which provides as follows:-
“17.(1) Sections 10, 11 and 12 shall not apply in respect of proceedings arising out of or relating to a strike or other industrial action by a trade union or a group of workers in disregard of or contrary to, the outcome of a secret ballot relating to the issue or issues involved in the dispute.”
It is the excluded sections which confer immunity on persons who might otherwise be liable for conspiracy criminally, picketing civilly or inducing breach of contract or interfering with trade or business.
Whilst, however, individuals may lose these valuable protections where they engage in industrial action “in disregard of or contrary to the outcome of a secret ballot” unions themselves are not penalised in that way. The statutory protection conferred upon a trade union is set out in s. 13 in the following terms:-
“13.(1) An action against a trade union, whether of workers or employers, or its trustees or against any members or officials thereof on behalf of themselves and all other members of the trade union in respect of any tortious act committed by or on behalf of the trade union in contemplation or furtherance of a trade dispute, shall not be entertained by any court.
(2) In an action against any trade union or person referred to in subsection (1) in respect of any tortious act alleged or found to have been committed by or on behalf of a trade union it shall be a defence that the act was done in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.”
If a union were to engage in industrial action in disregard of the wishes of its members expressed in a secret ballot it would not forfeit the immunity conferred upon it by section 13. Instead it would risk the loss of its negotiating licence in accordance with the provisions of s. 16 of the Act of 1990.
Where employees engage in industrial action “in disregard” of or contrary to “the outcome of a secret ballot” their activities do not enjoy the statutory protections. In the present case either no secret ballot was held or else the secret ballot “in its outcome” authorised the industrial action so that there is no question of the individual defendants acting in disregard of the resolution of their colleagues. Even if the evidence justified the conclusion that the majority of the employee/members of the union voted against industrial action the reconstruction of the resolution in pursuance of the decision of the court could hardly be regarded as “the outcome” of the ballot and certainly it could not be suggested that the striking members acted in disregard of it. From the point of view of the union, the holding or not holding of the secret ballot or the manner in which it was held does not impinge in any way on the rights of the union vis à vis the plaintiff/employer. Its immunity under s. 13 of the Act of 1990 would remain unaffected.
The provisions of s. 19 – which are novel and designed to safeguard the interests of those engaged in industrial action – were not directly material to any matter in issue in the present case. Reference was made to that section only for the purpose of identifying the purpose and proper interpretation of the Act as a whole.
Section 19 alters the law in relation to the circumstances in which an interlocutory injunction may be granted to restrain a strike or other industrial action. The right to obtain, or even to apply for, an interim injunction to restrain industrial action is restricted by sub-s. (1) which provides:-
“19.(1) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute.”
The position with regard to an interlocutory injunction is dealt with in sub-s. (2) of s. 19 which provides that:-
“(2) Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.”
The express reference in both sub-ss. (1) and (2) of s. 19 to a secret ballot “held in accordance with the rules of a trade union as provided for in section 14” – particularly in the absence of any similar reference in s. 17 – do suggest that those engaged in industrial action cannot rely on the protection afforded by the section if it is established that a purported secret ballot was not held in accordance with the provisions of section 14. In principle this is unexceptional. Where a significant statutory benefit is conferred on one litigant at the expense of another upon express statutory terms, the benefit should not be available if the terms are not fulfilled. The question has arisen in this case on the interlocutory application before Keane J. (Unreported, High Court, Keane J., 22nd March, 1994) and in G. & T. Crampton Ltd v. Building & Allied Trades Unions (Unreported, High Court, Laffoy J., 20th November, 1997), as to the party on whom the onus falls of proving or disproving the performance of the statutory conditions precedent and more particularly the nature and extent of the proof to be adduced in that behalf. In his judgment, Keane J. was dealing with the facts the subject matter of these proceedings and examining in relation thereto the novel provisions of s. 19(2) of the Industrial Relation Act, 1990. Having quoted that section the learned judge commented as follows:-
“The object of that sub-section is relatively clear. Prior to its enactment it was quite a common occurrence for employers to apply to the court for an interim but not always an interlocutory injunction restraining picketing, in particular on the ground that there was a serious question to be tried as to whether there was any dispute in existence and that the plaintiff would suffer irreparable damage if the picketing continued and for which damages would not be an adequate remedy. It is a matter of common knowledge that the frequent use of that procedure by employers meant that the use of what were otherwise legitimate methods sanctioned by the law by trade unions of advancing their interests were effectively neutralised by the way in which the law operated.
. . . Be that as it may, whilst [the sub-section] does afford an important protection to trade unions, there is also a specific and very important requirement that the sub-section only comes into place, as it were, where there has been a secret ballot held in accordance with the rules of the trade union as provided for in section 14. The other factor which the Oireachtas clearly took into account is that the protection of this section should only be available to trade unions who ensure that the action undertaken has the support of union members and that it has their support as demonstrated in a secret ballot.”
On the interpretation of s. 19(2) Keane J. said as follows:-
“I pause here to say that, whilst there appears to be no authority on the section, it seems to me as a matter of first impression that the onus must be on the person resisting the injunction to establish that the provisions of s. 14 have been complied with, which seems to me to be crucial to the operation of the section. . . . Before a trade union is afforded the protection of s. 19 and, conversely, an employer is deprived of the protection that he would normally have at common law in relation to the obtaining of an interlocutory injunction in circumstances where his business is or could be affected, I would take the view that the court must be satisfied on the evidence before it that s. 14 has been complied with.”
In fact Keane J. went on to say that there was no evidence before him of sufficient weight to indicate that s. 14 had been complied with and accordingly, refused the benefit of the sub-section to the trade union. Clearly the learned judge made that determination on the balance of probabilities. In relation to the substantive issue between the parties he was merely concerned as to whether “there was a serious issue to be tried”. In G. & T. Crampton Ltd. v. Building and Allied Trade Unions (Unreported, High Court, Laffoy J., 20th November, 1997), Laffoy J. agreed that the onus of establishing the conditions precedent to the operation of s. 19(2) fell on the party resisting the injunction. Laffoy J. analysed the statutory conditions and in particular referred to the requirements of sub-s. (2)(f) of s. 14 relating to the proposals voted upon and pointed out that there was no evidence before her in relation to compliance with such conditions. Accordingly, she rejected the particular defence or restriction claimed by the trade union under s. 19 of the Act of 1990. The judgment of Laffoy J. was appealed to this Court and was upheld in an ex tempore judgment delivered by the Chief Justice (see [1998] I.L.R.M. 430). In particular the Chief Justice concluded (at p. 437) that:-
“. . . the learned trial judge was entitled to come to the conclusion that the condition precedent to the implementation of s. 19 was not established.”
It is proper, however, to note that the Supreme Court appeared to have had before it evidence which was not available in the High Court. At p. 434 the Chief Justice commented:-
“I am very conscious of the fact that in her recital of the relevant facts, (the judge) did not have the benefit of the affidavits sworn by Mr. Lamond dealing in detail with the circumstances in which the secret ballot was held, the voting thereon and of such like.”
Again the Chief Justice raised, without resolving, the issue whether a proposal put before a secret ballot for the purposes of s. 14 of the Act of 1990 must particularise the nature of the industrial action for which the trade unions sought the support of their members.
In the circumstances it may be said that there has not been a definitive interpretation of s. 19(2) of the Industrial Relations Act, 1990, but I would find it difficult to escape the conclusion reached by Keane J. and accepted by Laffoy J., that the onus lies upon the party resisting an application for an interlocutory injunction to show that a secret ballot as envisaged by s. 14 has been held. Moreover, it could hardly be sufficient to establish the existence of a stateable case in relation to the compliance with the rules required to be adopted by a union pursuant to s. 14 aforesaid. The decision of a court on an interlocutory application as to whether or not the particular immunity granted by s. 19(2) is available is itself a final decision and determines finally whether that statutory benefit is available to the trade union. Concern must exist, as to how decisions of that nature could be made in practice. There may be serious difficulty, and even a degree of unreality, in requiring the court to make an actual determination on the balance of probabilities as to whether all of the requirements of the secret ballot have been complied with when the substantive issue itself is dealt with at that stage on the basis “of a serious issue to be tried”. The demands which such a requirement could impose are illustrated by the urgency with which the interlocutory proceedings in G. & T. Crampton Ltd. v. Building and Allied Trade Unions (Unreported, High Court, Laffoy J., 20th November, 1997) and [1998] I.L.R.M. 430, were dealt with in both the High Court and this Court and to which the Chief Justice drew attention in his judgment.
I am confident that the trade union movement will, if it has not already done so, arrange that the rules of all unions are amended so as to comply with the requirements of s. 14 and, of equal importance, that secret ballots will be conducted not merely in accordance with the terms of such rules but also under professional and independent guidance which will guarantee that all appropriate conditions are complied with and facilitate the union in proving that such was the case. Clearly the events which the learned trial judge found to have happened in the present case must never occur again. The difficulties which emerged in G. & T. Crampton must be avoided. No doubt trade unions will comply with their own regulations. Furthermore, they owe it not only to themselves but also to their members and to the public to be in a position where they can comfortably demonstrate such compliance. When such steps have been taken perhaps the problems in relation to the interpretation of s. 19 will become irrelevant. In any event I would prefer to reserve a final decision as to the proper interpretation of that section until a case directly involving it comes before the court.
The conclusion that a trade dispute exists and that the statutory immunities are available to the defendants means that the judgment of the learned trial judge cannot be upheld. The injunctions granted must be discharged. Whether any finding of wrongdoing by any of the defendants or any part of the award against them can be sustained is a matter on which the parties must be heard before a final order can be made.