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GAZETTE
DECEMBER 1980
employer was unable to re-employ him because the job
was no longer available.
Subsequently Hamilton, J. in
Stephen Geraghty and Co.
Ltd. v Whelan
11
granted an injunction restraining the
defendant employees from picketing the plaintiff
employer's premises. The company owned a hardware
store and a granary in Carnew, Co. Wicklow. The
defendants were employed only in the hardware store
which closed at 6 p.m. and they asked the employer if
they could do overtime work in the granary. The
employer refused, saying that overtime granary work was
for granary workers only and the defendant employees
had picketed the premises.
It is as difficult to reconcile the
Stephen Geraghty
decision with the statutory definition as it is with the
earlier case in 1924 of
Barton
v
Harten.
12
In
Barton's
case
a publican's assistant was arrested by Government
forces in October 1922 and was not released until
September 1923. The employer had kept the job open
until about January 1923 when a full-time replacement
was hired. When the assistant was released from custody
he asked for his job back and the publican refused saying
there was no room. I.N.U.V.G.A.T.A
13
called the
publican's employees out on strike and organised pickets.
The High Court (Malony C. J.) held that there was no
trade dispute, saying: 'there is no dispute at all, but only
an attempt on the part of an organisation to compel an
employer to give employment to one who had been out of
employment for a long time and whose position has been
filled in the ordinary course'. In
J. Bradbury Ltd. v.
Duffy
14
McWilliam J. said that
Barton's case
indicated
that a clearly discernible connection with non-
employment was not always sufficient to justify industrial
action and that there had to be 'something more'.
However, McWilliam J. indicated no priniple as to how
this 'something more' should be ascertained. In this
respect the judgment of O'Higgins C. J. in
Gouldings Ltd.
v
Bolger
15
is very pertinent, since in it he expresses a great
deal of sympathy for the argument that for a trade dispute
to exist there had to be 'some reality' in the question of
possible employment, if the dispute was over reinstate-
ment or refusal to hire.
Demands outside Statutory Immunity
This view of O'Higgins C. J. appears to be extremely
close to those of Lord Denning who has in both
The
Camilla M
16
and
PBDS Ltd.
v
Filkins
17
expressed the
view that if employees or union officials make demands
that cannot possibly be met there is no trade dispute. He
said that if demands were made that were "wholly
extortionate or utterly unreasonable or quite impossible to
fulfil" they were outside the statutory immunity. However
the
Camilla M
has been expressly
18
overruled by the
House of Lords in
NWL Ltd.
v
Woods.
19
Lord Diplock
there said that the fact that a demand appeared to the
court to be unreasonable because compliance with it was
"so difficult as to be commercially impracticable or would
bankrupt the employer or drive him out of business" did
not prevent it from being a dispute connected with "terms
and conditions of employment". He concluded that the
immunity was not forefeited either by the employer or the
employee being "pigheaded or stubborn".
Nevertheless the Irish courts appear to have introduced
into the statutory text of the 1906 Act Lord Denning's
"reasonable possibility" argument. This would explain
not only the recent decisions but also the earlier decisions
of
Doran
v
Lennon
20
and
Corry
v
Beirne
2i
.
In Doran's
case industrial action was taken, inter alia, for an increase
in pay which was forbidden by statute. In
Corry's case
the action was designed to secure the reinstatement of an
employee who could not lawfully be employed because he
was under age. Injunctions were granted in both cases.
Beyond this, however, there appears to be no justification
for reading into the 1906 Act limitations which the High
Court considers desirable. As the House of Lords have
recently made abundantly clear in
NWL Ltd.
v
Wood,
no
limitation on the ordinary meaning of the words of the
1906 Act is permissible and Lord Scarman said: "None
is needed; none was intended". Judicial decisions cannot
impose limitations on the language used by the legislature,
where it is clear from the words, context and policy of the
legislation that no limitation was intended. The legislative
policy of the 1906 Act was to exclude trade disputes from
judicial review. There is nothing in the 1906 Act entitling
the courts to substitute their opinion on the wisdom or
merits of industrial action for the opinion held by those
instigating or participating in the industrial action
complained of. All the 1906 Act requires the courts to do
is to ascertain whether the dispute is connected with the
statutory formula.
It is worth recalling the words of Peterson J.,
23
accepted by both Maguire C. J.
24
and Hamilton J.
25
:
"In all these cases it is of the utmost importance
that the court should keep in mind the fact that it is
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192