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GAZETTE
JULY/AUGUST 1983
Trade Disputes (Amendment) Act 1982
— "Definition of Workmen"
By
Gabriel Daly B.C.L.
P
ractitioners are aware that the concept of "Trade
Dispute" is crucial in Labour Law. Those engaged
in industrial action will to a certain extent be protected
from tortious jiability where they act "in contemplation
or furtherance of a trade dispute". This "Golden
Formula", as. it is known was first introduced by the
Conspiracy and Protection of Property Act 1875 but
"Trade Dispute" was not defined until the Trade
Disputes Act 1906.
1906 Act
There is no positive right to strike in Irish Law. There
are some defences and immunities provided by the
Trade Disputes Act 1906 which can be relied upon by
workers and their representatives if employers take
action against them in the Courts as a result of a strike.
Thus, section 1 of the 1906 Act provides that "an act
done in pursuance of an agreement or combination by
two or more persons shall, if done in contemplation or
furtherance of a trade dispute, not be actionable unless
the act, if done, without any such agreement or
combination, would be actionable". This Section, in
effect, overrules the decision of the House of Lords in
Quinn V. Leather^
where it was held that if two or more
persons combined without justification to injure another
they would be liable in tort. Section 2 allows for peaceful
picketing as follows - "It shall be lawful for one or more
persons, acting on their own behalf or on behalf of a
trade union or of an individual employer or firm in
contemplation or furtherance of a trade dispute, to
attend at or near a house or place where a person resides
or works or carries on business or happens to be, if they
so attend merely for the purpose of peacefully obtaining
or communicating information, or of peacefully
persuading any person to work or abstain from
working". Section 3 of the 1906 Act provides that "an
act done by a person in contemplation or furtherance of
a trade dispute shall not be actionable on the ground
only that it induces some other person to break a
contract of employment; or is 'an interference with the
trade, business or employment of some other
person'
" The above Sections of the 1906 Act deal
with the liability of individuals engaging in industrial
action. However, s.4 of the 1906 Act relieves trade
unions, as such, from liability in tort altogether whether
acting in contemplation or furtherance of a Trade
Dispute or not. Section 4 effectively overrules the
decision of the House of Lords in
Taff Vale Railway
Company V. Amalgamated Society of Railway Servants
2
where the plaintiff Company in 1901 successfully sued
their employees' trade union the A.S.R.S. for £23,000.00
damages for wrongful picketing and £12,000.00 in legal
costs. Section 5 (3) of the 1906 Act defines Trade
Dispute 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. "Section 5 (3) of the 1906 Act goes
on to define "workmen" as "all persons employed in
trade or industry". Thus it can be seen that the definition
of "workmen" formed the basis of all the protections
and immunities contained in the Trade Disputes Act
1906. The Trade Disputes (Amendment) Act 1982
3
amends the definition of "workmen" contained in the
1906 Act and it is the purpose of this article to examine
what changes the new provisions will make.
Interpretation o f
4
'workmen" under s.5 of the 1906 Act
The Irish judiciary have, in the past, given a restrictive
interpretation to the definition of "workmen" in the
1906 Act in a different manner to their judicial brethren
in the U.K.
In an
obiter dictum
in
National Association of Local
Government Officers V. Bolton Corporation*
Lord
Wright placed a wide interpretation on the words "trade
or industry". His Lordship stated, "Indeed, 'trade' is not
only, in the etymological or dictionary sense, but in legal
usuage, a term of the widest scope. It is connected
originally with the word "tread" and indicates a way of
life or occupation. In ordinary usage it may mean the
occupation of a small shopkeeper equally with that of a
commercial magnate. It may also mean a skilled craft. It
is true that it is often used in contrast with a profession.
A professional worker would not ordinarily be called a
tradesman, but the word "trade" is used in the widest
application in the appellation "Trade unions".
Professions have their trade unions".
Employer activities
In deciding whether or not a person is engaged "in
trade or industry", the Courts in Ireland have looked to
the employer's activities rather than to the actual work
done by the individual employee. Thus in
B & /.
Steampacket Co. Ltd. V. Brannigan
*> the Carlingford
Lough Commissioners were held not to be involved in
"Trade or Industry". Another example of this restrictive
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