The Gazette 1973

UNREPORTED IRISH CASES Separate trade union entitled to picket to gain recog- nition despite contract between employers and other unions that all employees in the firm would belong exclusively to those unions.

their employment, and endeavoured to persuade the plaintiffs to waive it. Every refusal on the part of a workman to work in accordance with the terms of his contract is itself a breach of contract. Henchy J. in delivering the principal minority judg- ment, emphasised that the five defendant employees had been informed by an official of the company, that they would have to be members of either the I.T.G.W.U. or NEETU, and that they freely signed a document that they would do so. When they were eventually informed that their employment was conditional on their joining the relevant union, the reply was a peremptory seven day strike, at thg expiration of which pickets were placed on the premises. In effect, the defendants were saying to the company: "Break your contract with I.T.G.W.U. and N.E.E.T.U., and employ us who are members of A.U.E.F.W." If the facts fall within the statutory definition of a trade dispute then the person relying on the trade dispute is entitled to do so. Section 5 (3) of the Act of 1906 clearly defines a trade dispute : once a dispute is between the parties specified and is connected with any of the matters specified, then it ranks as a trade dispute. In this case, the defendants come within the statutory definition of "workmen", they fell into dispute with their employers : the dispute is connected with the terms of their employment. There- fore the plaintiffs are entitled to contend that a statu- tory dispute does exist. (2) Is the picketing done by the defendants in further- ance of this trade dispute lawful? Henchy J., in delivering the principal minority judg- ment, emphasised that, if the picketing is done for a purpose other than peacefully obtaining or communi- cating information, or of peacefully persuading a person to abstain from work, under Section 2 of the Act of 1906, then this Section cannot grant immunity to pick- eters. The main purpose of the picketing in this case was to induce the company to break its contract with I.T.G.W.U. and N.E.E.T.U. by employing persons other than the members of those unions. One of the cases, which constitutes a necessary ingre- dient of an actionable interference with contractual rights is thus stated by Salmond, Law of Torts, fifteenth edition, at p. 498 : "When a third party intentionally and without justification interfered with the contract between two parties the defendants thus must be credited with knowledge that if the picketing were successful in inducing the company to break its contract, the company would then be liable for damages for breach of contract, or be subjected to an injunction restraining them from employing persons other than members of I.T.G.W.U. or N.E.E.T.U. The picketing would therefore be unlawful at Common Law, and would be outside the protection not only of Section 2 but also of Section 3 of the Act of 1906." (3) Is the strike in the present case a breach of con- tract? The plaintiffs submit it is, and is therefore unlawful. Walsh J. in delivering the majority decision of the Court, said that: Undoubtedly, even if technically 56

The factory manufacturing hypodermic syringes opened in Dunlaoghaire in 1969. In July 1970 an agree- ment was concluded between the company, the ITGWU and Nat. Eng. and Elect. T.U. stating that all workers save those in a managerial or clerical capacity must belong in the case of an unskilled worker, to ITGWU, and, in the case of a skilled worker, to NEETU. All the defendants, save Callaghan, District Secretary of Amal- gamated Union of Engineering Foundry Workers, agreed to join one of these Unions, although they had been members of A.U.E.F.U. up to this. The five defen- dants who had been members of A.U.E.F.U. refused to join N.E.E.T.U. The company were informed by Callaghan in July 1970 that one of the members of A.U.E.F.U. had been appointed shop steward but the company would not recognise this. Callaghan then threatened a strike of A.U.E.F.U. members, and refused to obey the Disputes Committee of the Trade Union Congress, who advised him to withdraw the strike notice. The plaintiffs adopted a wait-and-see attitude. Henchy J. granted an interim injunction to restrain picketing until August 12. On August 19 Pringle J. refused an interlocutory injunction. On appeal to the Supreme Court on September 7 it was agreed by con- sent that no further order be made pending the trial of the action, and that picketing would be discontinued meantime. The trial was held before McLoughlin J. in November 1970. McLoughlin J. granted a perpetual injunction re- straining the defendants from picketing plaintiffs' prem- ises, on the ground that there was no trade dispute. The following matters were determined on appeal. (1) Is a recognition dispute capable of being a trade dispute? Even in E.I. Co. v. Kennedy (1968) I.R.—this had not been decided up to then by the Irish Courts. Walsh J. in delivering the majority judgment of the Court answered this question—"Yes". If workmen designate their trade union to be their representatives in any negotiations on questions of conditions of em- ployment, whether or not there is currently negotiations of a dispute, they are doing something which is connec- ted with their employment. If therefore an employer refuses to treat with their designated representative, then that refusal can constitute a trade dispute con- nected with his employment within Section 5 of the Trade Dispute Act, 1906. Does this principle extend where the particular trade union is not expressly or completely the representative of the workmen con- cerned? The suggestion that the condition as to joining N.E.E.T.U. was a condition precedent as to the con- tract of employment cannot be maintained, as the workers concerned were employed. There was merely a subsequent agreement that the workers concerned would transfer their membership to the other union which was a term of their employment. The situation then was that the workers concerned wished to repudiate a term of