PICKETING INJUNCTIONS – A SUPREME COURT DECISION
Background The parties in this case were HA O’Neil Limited (“the Respondent”) a mechanical engineering firm and Unite the Union and others (“the Appellants”). Unite is a trade union who organises workers in the mechanical engineering industry, and the others party to the case were employees of the Respondent and members of the union. In February 2023, the union, having balloted its members employed by the respondent company, wrote to the Respondent giving notice of industrial action due to take place 10 days later. The proposed industrial action involved strikes on a rolling basis at construction sites where the Respondent was engaged as a sub-contractor. The Respondent brought a High Court application for an interlocutory injunction restraining the Appellants from picketing at these construction sites and sought other ancillary orders. The injunction was granted in March 2023 pending the trial action. The Supreme Court (“the Court”) permitted leave to appeal on the basis that the case raised important issues of law relating to the grant of injunctions in respect of industrial disputes, and in particular, reference to section 19(2) of the Industrial Relations Act 1990 (“the Act”).
Date added
04.09.2024
Author
Cómhnall Tuohy with assistance from Jim Gibbons
1. The Act
Section 19(2) of the Act provides:
“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.”
2. Hurdles to be navigated by the Respondent
The Court noted that in order to restrain industrial action, it is necessary for the respondent employer to show that:
A. section 19 of the Act does not bar the grant of an injunction;
B. the statutory immunities and protections in section 10 (actions in contemplation or furtherance of a trade dispute), section 11 (peaceful picketing) and section 12 (removal of liability for certain actions) of the Act do not apply in relation to the individuals (or at least that it is arguable that this is so);
C. section 13 (restriction of actions of tort against trade unions) does not apply in respect of the claim against a trade union or its officers (or once again that there is an arguable case in this regard); and
D. an interlocutory injunction should be granted by reference to the established criteria for the granting of an interlocutory injunction.
3. Hurdles to be navigated by the trade union
The Court noted that an interlocutory injunction must not be granted if the union can show that:
A. a secret ballot has been held in accordance with the rules of the union as provided for in section 14 of the Act;
B. the outcome of the ballot favoured a strike or other industrial action;
C. not less than one week’s notice has been given to the employer concerned of the intention to engage in the strike; and
D. a fair case has been established that they were acting in contemplation or furtherance of a trade dispute on the balance of probabilities.
The Respondent claimed the industrial action ballot action was in breach of the Act and the parties were bound by a “no strike” clause and dispute resolution mechanism under a Sectoral Employment Order (“SEO”). The Court unanimously allowed the union’s appeal on the basis that the union had established the points at 3.A to D above.
4. Key Takeaway
Section 19(2) of the Act prevents the Courts granting an injunction restricting industrial action, where the correct legal procedures have been followed.
Click here to access the Judgement.
For further information on this topic please contact Cómhnall Tuohy or any member of the Employment Team.
This Article has been prepared by Kane Tuohy LLP on 9 April for general guidance only and should not be regarded as a substitute for professional advice. Such advice should always be taken before acting on any of the matters discussed.