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GAZETTE
JULY/AUGUST 1991
union law at a seminar on the
Industrial Relations Act, 1990
organised by the Irish Society for
Labour Law on July 13, 1991.
Law-
brief
deals here with aspects of
trade dispute law which were
considered by the Minister.
Until the passing of the 1990
Act, the statute law in relation to
striking and picketing was primarily
contained in the five sections of the
Trade Disputes Act, 1906,
with a
number of further provisions in the
Trade Union Act, 1941
and the
Trade Disputes (Amendment) Act,
1982.
The Minister stated correctly that
the law in this area was not as
simple as a reading of those Acts
might suggest. Since 1906 a
considerable volume of case law
had arisen from the interpretation
by the Courts of the provisions of
the
Trade Disputes Acts.
As a
result, the law has become
extraordinarily complex and its
precise limits were vague and
confusing. The usefulness of the
statute law in providing a guide to
conduct had diminished and it was
increasingly necessary to look to
case law.
The approach adopted in the
area of trade dispute law was to
repeal the
Trade Disputes Acts
of
1906 and 1982 and to re-introduce
the main provisions of these Acts
with amendments. An important
by-product of this approach was to
give the legislation a clear
presumption of constitutionality.
Legal actions to challenge the
constitutionality of the 1906 Act
had been threatened from time
to time but were not proceeded
with.
The Minister outlined the main
features of the provisions relating
to trade disputes:
• The definition of trade dispute
has been amended to ex-
clude worker versus worker
disputes.
• The immunities no longer apply
to disputes involving one worker
where procedures have not
been followed.
• Picketing has been confined to
an employer's place of busi-
ness.
• Secondary picketing is per-
missible only in situations
where workers have a reason-
able belief that the second
employer has acted in a way
likely to frustrate a strike or
other industrial action by
directly assisting their employer.
• An anomaly whereby organising
a strike was protected by the
immunities but threatening to
organise or take part in a strike
appeared not to be protected
has been cleared up.
• The immunity enjoyed by trade
unions in respect of tortious
acts now applies only in the
case of acts committed in
contemplation or furtherance of
a trade dispute.
• Unions are required to have
a rule in their rule books with-
in two years (i.e. by 18th July,
1992) providing for the hold-
ing of secret ballots before
engaging in or supporting a
strike or other industrial
action.
• In trade dispute situations
where a secret ballot has been
held and notice given, the
granting of injunctions, particu-
larly ex-parte injunctions, is
restricted.
Picketing
The picketing provisions in the
1990 Act, sought, according to the
Minister for Labour to strike a
balance between the rights and
interests of both sides. In the case
of primary picketing the previous
extremely broad definition, which
permitted picketing
"at or near
a
house or place where a person
resides or works or carries on
business or happens to be", has
been amended to read "at, or
where this is not practical, at the
approaches to" a place where their
employer carries on business.
The intention was to ensure that
picketing takes place at the
employer's place of business.
However, because of the position in
relation to private property rights
and the need to avoid trespass on
private property, there may be
circumstances where it will not be
possible to picket directly at the
employer's premises. The Minister
gave the example of where a
dispute arises a f f ec t i ng one
employer in a shopping centre or
industrial complex, it should be
possible to secure agreement that
the picket be placed at the in-
dividual employer's business rather
than at the entry to the complex.
It was necessary, however, to
provide a saver for situations where
this turns out not to be practical or
possible.
Secondary Picketing
As far as secondary picketing is
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