The Gazette 1980

GAZETTE

DECEMBER1980

TRADE DISPUTES ACT 1906 —

'Employment or non-employment'

by Anthony Kerr, B.A. (Mod.), LL.M.,

Assistant Lecturer in Law, U.C.D.

It is well known that the extent to which employees may

picket is governed by the Trade Disputes Act, 1906 ("the

1906 Act") and the meaning given to the 'golden

formula' contained therein; that such industrial action,

which would otherwise be tortious, will not be actionable

when it is taken 'in contemplation or furtherance of a

trade dispute'. 'Trade dispute' is defined in section 5(3) of

the 1906 Act as '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'. It is proposed in this article to

focus on recent decisions affecting the words

'employment or non-employment'.

At the outset it is important, in order to avoid

confusion, to emphasise that in this discussion two issues

arise which must be kept separate. The first of these is the

meaning of 'employment or non-employment', the second

is the meaning to be given to the word 'workmen'. Section

5(3) of the 1906 Act goes on to provide that the

expression 'workmen' means 'all persons employed in

trade or industry'.

The word 'employed' does not signify

that the dispute must be between persons who are actually

in employment at the time of the dispute. As Meredith, J.

said in 1937 in

Ferguson v. O'Gorman

; 'A workman

does not cease to be a workman because he has been

dismissed and is out of employment'. Such a person is still

to be regarded as 'employed in trade or industry' and the

employer cannot argue that there is no dispute between

employer and workmen.

It follows from this that a dispute between an employee

and an employer over dismissal and a claim for

compensation and/or reinstatement would be a valid

trade dispute, firstly, because it is between an employer

and a workman, and secondly, because it is connected

with employment or non-employment. It does not

matter if the dismissal was perfectly lawful, fair or for

reasons of redundancy. The Supreme Court has

confirmed in

Gouldings Ltd. v Bolger*

that the fact that

picketers have been validly dismissed does not take them

outside the statutory immunity. The lawful dismissal of a

workman can be the subject of a trade dispute

and it was

emphasised that the decision of Overend, J. to the contrary

Doran v. Lennon

was erroneous.

Counsel for the employer in

Gouldings case

argued

that as the Redundancy Payments Acts 1960-1971

recognised that employers might be compelled to dismiss

employees as a result of economic pressures those Acts

must be taken as having impliedly amended the 1906 Act

so as to withdraw from the protection of the 1906 Act

employees entitled to redundancy payments under those

Acts. The Supreme Court did not accept this argument.

Kenny, J. held that the statutory entitlement to

redundancy pay was a minimum which the employer had

to pay and that employees were quite entitled to demand a

sum greater than that and to take industrial action (which

would be protected under the 1906 Act) if the claim were

refused.

This has been subsequently made abundantly

clear by McWilliam, J. in

Cleary v. Coffey

where the

dispute was over the payment of 'a disturbance claim

bonus' in addition to the statutory redundancy entitle-

ment, as was claimed to be customary in the licensed

trade. Mc William, J. held that this was a trade dispute

within the meaning of the 1906 Act and that it did not

cease to be one merely because the claim appeared to

be unreasonable.

It is surprising that this point is still being argued by

employers since the Supreme Court has clearly indicated

that a trade dispute is not confined to disputes over legal

rights. As Lavery, J. put it in 1955, in

Quigley

Beirne;

'The Trade Disputes Act, 1906, is designed to permit

within limits, certain actions to secure recognition of

extra-legal claims of a particular nature and to bring

pressure to bear on an employer 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'.

The concept of Non-Employment

It is clear, therefore, that dismissal is included within

the expression 'employment of non-employment'; but

non-employment is a much wider concept than dismissal

and must necessarily cover other matters. In

McHenry v.

Carey

Hamilton, J. held that the refusal to hire a person

could form the basis of a trade dispute within the

statutory definition. In his opinion there could be no

logical distinction between the case of a dismissed

employee and that of a person seeking initial employment

or a person who had been for a period out of

employment.

This latter decision has been recently reconsidered by

the High Court in

J. Bradbury Ltd. v. Diffy

in which

McWilliam J. accepted the

McHenry Brothers

decision as

being correct on its facts, but said there had to be 'some

restriction on the universality of the application of the

term 'non-employment'. He gave two examples of 'non-

employment disputes' which would not be valid trade

disputes. The first example was where an employer,

starting a business, advertised for ten employee and

received fifty applications. He could not accept that the

forty unsuccessful applications were entitled to take

industrial action solely because they had not been given a

job. The second example was the case of an employee

who had voluntarily left employment and his job was then

filled. If the employee subsequently changed his mind and

asked for his job back it could not be said that he was

entitled to take industrial action because his former

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