The Trades Disputes Act, 1906 introduced important immunities for trades unions and employees in undertaking strike and other industrial action. The so-called golden formula which was first introduced by the 1906 Act, sets out the conditions under which lawful strike action may be taken so that the key immunities are available.
The law was reformed and modernised in 1990. The scope of the immunities was modified. In particular, their availability was made conditional upon compliance with certain conditions and procedures, in particular a strike ballot. In some respects, the immunities were narrowed and in some respects, they were broadened or clarified. The key parts of the golden formula remain.
The general principle is that legitimate industrial action, whether by way of a strike or peaceful picketing is permissible provided that it is in contemplation or furtherance of a trade dispute. Outside of the actions which benefit from immunity, some types of industrial action may be unlawful, in the sense that a third party may have a right to damages or an injunction.
A trade dispute is defined for the purpose of industrial relations legislation and rights, as a dispute between employers and employees in connection with employment or non-employment or the terms and conditions of employment or in any way affecting the employment of any person.
Industrial action is action which affects or is likely to affect the terms and conditions of employment, which is taken by a number of employees in combination or under a common understanding as a means of compelling the employer or assisting fellow employee of another employer in compelling their employer to accept or not accept terms and conditions of employment or in relation to employment
A strike is a stoppage of work by a number of employees acting together or a concerted refusal under a common understanding of a number of employees as a means of compelling their employer or assisting other employees in compelling their employer to accept or not to accept terms and conditions affecting employment.
The immunities apply to a “trade dispute”. The Industrial Relations Act, 1990 provides that a “trade dispute” is a dispute between employers and employees, which is connected with the employment or non-employment or the terms or conditions of, are affecting the employment of any person.
The immunities are available only for a bona fide trade dispute. There must be a dispute. The law does not consider whether or not the dispute is reasonable. It does not look at the merits of the dispute. It considers only whether there is in fact a dispute.
The dispute can relate to something wider than just the terms of employment in the sense of the contractual terms. It can relate to anything affecting an employee in the course of employment.
There are certain immunities from protection from dismissal on the grounds of participation in a strike. They are limited and in effect prohibit discriminatory dismissals only.
One party to “trade dispute” must be an employee. One party must be an employer. An employer is a person for whom one or more employees work, have worked, have normally worked or seek to work, having previously worked for that employer. The employer need not be employed by the employer with which there is a dispute.
An employee of an employer includes a former employee or a person normally their employee or somebody they seek to work for the employer, having previously worked for it.
A person is still an employee, even if he has been dismissed, even if the dismissal was lawful and fair. A dispute which concerns a dismissed person may be about “not-employment”. Where the person takes up alternative employment for a period, it may be difficult to characterise the dispute concerning non-employment with the former employer.
Prospective employees may be covered in some circumstances, but not in others. Trade disputes include disputes regarding non-employment. This covers former employees and may cover some prospective employees. There must be some discernible connection between the prospective employee and employer. It may, for example, cover a seasonal worker, who seeks re-employment. It may cover particular categories of employees who for customary, circumstantial, moral or historical reasons, may have to employment with the employer.
Where the dispute is between employees only or is between employers only, there is no “trade dispute” for the purpose of the legislation.Disputes about non-employees or those who do not seek to work for the employer concerned (having an interest in the above sense in so doing) are not covered.
In an infamous Irish case in the 1950s, an employer formed a new company and successfully circumvented the legislation by creating a new employer. It is widely assumed that the case would be decided differently now, on the basis that the court may disregard the separate legal person status of the company (pierce the corporate veil). The use of the company in such circumstances could be characterised as a sham or fall within one of the exceptions to the principle that corporate identity should be respected.
Unions and employer associations may not be a party to trade disputes between themselves only. They may do so, only in their capacity as representatives of employers and employees. A ballot may clarify that the union acts for the employees in the circumstances.
Unions may act in disputes on behalf of their members, even if they have a small number of members only in the employment concerned. In these circumstances, they may be limited to acting in matters relating to core pay and employment matters.
The key immunities from civil wrongs / torts applies to “authorised” or licensed trade unions and their members. An authorised trade union is one which holds a negotiation licence. In effect the strikers must be members of an authorised union in order to enjoy the immunities. The 1990 reforms effectively limit the key immunities to cases where there has been a secret ballot and union approval.
There may be a trade dispute for the purpose of the legislation, notwithstanding that the dispute could have, or should have, been dealt with otherwise. Unofficial action refers to action undertaken without union approval, or other than in accordance with its rules.
Union permission is not a condition for a valid trade dispute. Employees may take unofficial action without a secret ballot, without the support of the union.However, the key immunities from legal action, including the restrictions on the taking injunctions by employers which apply to official strikes, will not apply.
The immunities are effectively conditional on following the requisite pre-strike protocol and procedure in the union rules. They are available to unions and their members while acting on their behalf. In effect, unofficial strikes are no longer protected.
The 1990 legislation requires that authorised unions have provisions for pre-action secret ballots, in their rules. An authorised union must ensure that its rules provide that it does not organise sanction or support strike without a secret ballot. Strikes and industrial action may not be organised, sanctioned, participated in or supported, without a secret ballot under the rules, which endorses the action concerned.
Union members only, are afforded rights by the ballot. Where several unions are involved, an aggregate vote is sufficient.
The trade union is subject to its internal rules and procedures. They may usually be enforced by any member. The ballot will usually give a mandate for industrial action, without directing it as an imperative. The union rules and the terms of the ballot will usually allow a significant element of discretion to the union executive or representatives.
Once the industrial action is sanctioned by ballot, the union’s executive or other controlling authority may make decisions regarding the commencement, organisation, participation in or support, as the case may be, of the proposed industrial action. The trade union may usually negotiate a settlement of a dispute, notwithstanding the result of a secret ballot for strike action.
Where there has been a secret ballot in favour of a strike or industrial action, the trade union must give not less than one week’s notice of the intention to take action. The employer may obtain an injunction to restrain the action or strike unless notice of the action is given.
A union must have provision for a strike ballot in its rules. Before a strike or industrial action is supported, organised or participated in by a trade union, there must first be a secret ballot of the relevant employees. The legislation does not prescribe the details of how the ballot is taken.
Reasonable steps must be taken to ensure there is no interference with or constraint imposed in relation to the vote. Members must have a fair opportunity to vote the ballot must be organised. Its result must be communicated, including details of votes cast, votes in favour votes against and spoiled votes. Those entitled to vote must be given equal votes. It must include those reasonably likely to be concerned in or engaged in the strike or industrial action. Minor irregularities in the ballot will not invalidate it.
Unions must show they have conducted a ballot in accordance with the requirements of the legislation in order to benefit from the statutory immunities. The ballot must fairly reflect the question in issue. The ballot must include all members whom it would be reasonable to believe, may be called upon to engage in the strike or industrial action.
The requirement is that the ballot must not be disregarded. This wording suggests the possibility that a ballot may not be “disregarded” if it has not been held. However, this interpretation seems unlikely. The breach of the requirement to hold a ballot may cause the union’s negotiating license to be suspended and removed. If no ballot is undertaken, an injunction will more readily be granted.
There is specific additional provision for individual disputes. If a procedure is in existence by custom or practice in the employment or in a collective agreement for the resolution of individual grievances, it must first be adhered to and exhausted before the immunities are available.
This requirement applies to available procedures in relation disputes concerning the terms and conditions of individual employees. It is not clear to what extent it applies where a specific issue affects several employees individually. The intention appears to be to distinguish between collective and individual issues and disputes.
The relevant grievance dismissal or other procedures must have been both used and exhausted. Procedures shall be deemed to be exhausted if at any stage an employer fails or refuses to comply with them.
This procedure may exist by custom and practice or by collective agreement. The procedures may include or require reference to the Workplace Relations Commission, and other state or private arbitral bodies. Disputes regarding individual rights may be determined by the Workplace Relations Commission. It does not seem to be enough that the dispute is one, which the WRC might be able to deal with. It appears that the agreed procedure should provide for reference to those agencies. An appeal to civils court is not required.
The strike must not be for an illegal or unconstitutional purpose. A strike which seeks to interfere with constitutional rights, loses the statutory immunities.
There is a constitutional right to associate or not to associate. This implies a right to join a union or to refuse to join a union. It appears that a union is not usually obliged to accept a person as a member. There may be limits to this principle where the union rules create legitimate expectations or where they have de facto monopoly such that their refusal to admit would deny the person’s right to exercise his trade or profession and earn a livelihood.
The Court have held that strikes and industrial action which seek to compel a person to join a union breaches the constitutional right to associate, which implies a right not to associate. The courts denied the protection of the statutory immunities in this contest.
The Irish court have also held that where the dismissal of an employee is due to illegality, there could not be a trade dispute. For example, where the employee was under age and as such could not be lawfully employed, a dispute for his reinstatement did not enjoy the immunities as it sought to support an illegal position.
Terms and Conditions
The trade dispute must be one connected with the employment or non-employment or terms or conditions of, or affecting the employment of any person. Employment and non-employment can refer to dismissal. Industrial action may be used as a means of leverage in dismissal matters.
The terms and conditions of employment refer to the entirety of employment conditions ranging from legal terms and condition, health safety and welfare to physical and environmental matters. All that is required is a connection with employment. It is not limited to the employment contract as such.
The civil wrongs/torts for which immunity is granted must be done “in contemplation or furtherance” of a trade dispute. A dispute may be covered by the immunity even if the the trade dispute is only part of the motivation. The fact that other motivations exist does not detract from the immunity.
The trade dispute must be real. It must not be a pretext for other motives. There may be a bona fide trade dispute, even where one party denies that there is a dispute at all. However, an intermeddler, with no legitimate interest in the matter, would not qualify for the immunities.
A dispute is not in contemplation unless it is reasonably imminent. There may be no dispute if it has been settled. However, if some parties disagree with the settlement, there may be still a dispute. It is arguable that when employees take alternative employment or take up work themselves, that they at some point, abandon the dispute.
Where there is some connection between the dispute and the industrial action taken in good faith, the courts will not look at whether the action, in fact, furthers the dispute. They will not second guess the belief of those taking the action in good faith, that it advances their position in the dispute. However, there must be some reasonable basis for their belief.
Some courts have held that it suffices that the person who acts, honestly believes that it furthers the objective of the dispute. An alternative view is that the action taken must be reasonably capable of advancing the dispute. This former approach appears to predominate over the latter objective test, in terms of the remoteness of the connection between the action and the objective.
Subject of Dispute
It is sufficient that the dispute is connected with employment conditions. It may relate to matters which may ultimately impact on terms and conditions, such as a proposed or evolving industry practice.
Disputes about pay, conditions, fringe benefits and the terms of employment will be trade disputes in most cases. The dispute may be with another employer, whom it is claimed seeks to undermine terms and conditions in an industry or a standard union rate. However, if the matter is too remote, from the circumstances of the participants, then there may not be a trade dispute.
Most disputes about union recognition are sufficiently connected with employment, to qualify as trade disputes. However, some recognition disputes will fall outside the definition of a trade dispute, such as where it is based simply on inter-union rivalry, unconnected with the employment.
Disputes regarding actual or proposed subcontracting and outsourcing will usually qualify as trade disputes. They may prospectively impact upon employment terms and conditions. Decisions regarding closing parts of the business, or closing the business entirely, will generally be trade disputes where it is linked to possible termination or the variation of the terms of employment.
A trade dispute with political overtones or intent may still be a trade dispute, provided that the trade-related part is a significant element of the dispute. The must be a real connection between the dispute and the action. Disputes which seek to uphold prohibited discrimination is unlikely to be permitted.
References and Sources
Employment Law Meenan 2014 Ch. 8
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.18 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Irish Trade Union Law Kerr & Whyte 1985
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Trade Dispute Act 1906
Trade Disputes Act 1982
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Irish Employment Law Journal
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Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
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Irish Human Rights and Equality Commission https://www.ihrec.ie/
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Labour Law, Deakin and Morris 5th Ed. 2012
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