The Gazette 1980

GAZETTE

JULY AUGUST 1980

activity or withdrawal of labour. For the purposes of the

Act, it is defined in Section 1 to mean

'the cessation of work by any number or body of

employees acting in combination or a concerted

refusal or a refusal under a common understanding

of any number of employees to continue to work for

an employer, in consequence of a dispute, done as a

means of compelling the employer or any employee

or body of employees, or to aid other employees in

compelling their employer or any employee or body

of employees to accept or not to accept terms or

conditions of or affecting employment'

If strike notice is expressed as notice to terminate the

contract and is of sufficient length it will bring the

contract to an end. A grave disadvantage of giving strike

notice in this form is that the worker will not be protected

by the Unfair Dismissals Act. The Act is inapplicable

where the employee has effectively resigned (unless he is

able to show that the employer has broken the contract

and his resignation is in response to this breach). A strike

starts from the moment an employee makes his intentions

clear to his employer.

It is worth noting that the statutory protection for

strikers in section 5 has rendered academic for the

purposes of the Act the lengthy arguments about whether

the effect of strike notice at common law is to terminate

the contract of employment or 'merely to suspend the

contract' as suggested by Lord Denning in

Morgan

Fry

119681 2 Q.B. 710, and supported by Walsh J. and the

majority of the Irish Supreme Court in 1973 in

Becton

Dickinson Ltd.

Lee

119731 I.R. 1,35. Before

Morgan v.

Fry,

see Devlin and Donovan L. JJ. in

Rookes v. Barnard

119631 1 Q.B. 623, 682-83; 119641 A.C. 1204(Houseof

Lords); Denning L.J. in

Stratford

Lindlev

119651 A.C.

307, 322. In Britain, the doctrine of suspension has now

been severely doubted and a more reasonable approach

adopted by the EAT in

Simmons v. Hoover Ltd.

119771

I.C.R. 61.

'Industrial action' is defined in Section 1 to mean

'lawful action taken by any number or body of

employees acting in combination or under a

common understanding, in consequence of a

dispute, as a means of compelling their employers

or any employee or body of employees, or to aid

other employees in compelling their employer or an

employee or body of employees, to accept or not to

accept terms or conditions of or affecting

employment'.

'Industrial action' is any

lawful

action short of cessation

of work or refusal to work. It is impossible to explain why

'lawfulness' should be required for industrial action and

not for strikes. The sort of industrial action that can be

described as 'lawful' is very limited.

In Britain, industrial action is not defined. It is

generally held open to complainants to argue that 'lawful

action' by employees is not encompassed by s. 62 of the

EPCA. There industrial action applies to action short of a

strike, such as picketing within the works or a collective

refusal to obey instructions to work on a particular

machine:

Thompson

Eaton Ltd.

119761 3 All E.R. 383;

119761 ICR 336. It also applies to an unlawful go-slow,

work to rule, or ban on overtime:

Derving v. Kilvington

119731 8 ICR 266. The Industrial Relations Act, 1971,

defined 'irregular industrial action short of a strike' as

action involving a breach of contract; neither the phrase

nor its definition were retained in TURLA, 1974. The

fact that TURLA did not incorporate a similar definition

for 'other industrial action' does not necessarily mean,

according to some writers, that a similar distinction

between lawful and unlawful action cannot be read into

TURLA. The earlier definition was omitted; it was not

replaced by a different definition. Until Parliament

provides a positive definition of 'other industrial action',

rejecting the former definition, it has been argued that

complainants may contend that 'lawful action' by

employees is not encompassed by S.62.

Lawful industrial action

In Ireland several different branches of the law (tort,

criminal law, contract and constitutional law) may be

involved in assessing lawfulness. Some forms of industrial

action constitute criminal offences under statute or at

common law. An example of the former is the Conspiracy

and Protection of Property Act, 1875, which lists a

number of prohibited actions. Section 7 provides,

inter

alia,

that it shall be a criminal offence for any person in

relation to another 'to watch or beset the house or other

place where such other person resides, or works, or

carries on business, or happens to be, or the approach to

such house or place'.

It is likewise a crime for those working in gas, water

(Conspiracy and Protection of Property Act, 1875, S.3)

and electricity (Electricity (Supply) Act, 1927, s. 110)

undertakings to break their contract of employment by,

e.g., taking strike action without giving notice; it is a

crime for any worker to break his contract of employment

if this would endanger human life or cause serious bodily

injury (Conspiracy and Protection of Property Act, 1875,

S.5). In more modern times the Offences against the State

Act, 1939, and the Prohibition of Forcible Entry and

Occupation Act, 1971, in addition to other statutes, have

created offences which apply to trade disputes.

In tort law, the Trade Disputes Act, 1906, in so far as

it is not inconsistent with the Constitution, renders certain

forms of industrial action 'lawful' (e.g., in relation to the

civil law: inducing breaches of contracts of employment,

civil conspiracy and picketing).

Certain forms of

industrial action lie outside the scope of the Act, or are

unprotected due to restrictive judicial interpretation, or

are unlawful in virtue of the means used, e.g., where

picketing amounts to intimidation;

or the language used

is associated with social ostracism and physical

violence;

or picketing involves excessive numbers of

workers.

Contract law tends towards an excessive technicality.

Depending upon the circumstances involved and the

terms (express or implied) in the relevant contracts of

employment, the go-slow,

work to rule,

overtime

ban,

occupation or sit-in

may all be viewed as

unlawful. Moreover, most collective agreements in

Ireland have a peace obligation of one kind or another.

This may refer either to the necessity to process a claim

or a grievance in a particular way through the procedure

or forbid recourse to strike or industrial action until there

has been reference to the body or bodies that are entitled

to conciliate or arbitrate in the matter. The circumstances

in which these may be incorporated into the contract of

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