The Gazette 1983

GAZETTE

JULY/AUGUST 1983

approach is the earlier case of

Smith V. Beirne

which

concerned a workingmen's club. It was held by Dixon J.

in the High Court, that the club was not engaged in trade

or industry as it was a "non profit making" concern. The

club not being engaged in trade or industry, it followed

that its employees could not be so engaged and were,

therefore, not "workmen" within the meaning of the

Trade Disputes Act 1906; the dispute between the club

and its employees was therefore not a protected "trade

dispute" and any picketing of the club was unlawful.

Dixon J. stated that "... to concede the claim of a Trade

Union to regulate the relations of employers and

employees, not engaged in any branch of trade or

industry solely because the employees happened to be

doing work of a similar character to that of workers in a

particular branch of trade and industry would give a very

wide and extended scope to the 1906 Act and give a

Trade Union a broader field of legalised intervention

and activity than could reasonably be supposed to have

been contemplated by the 1906 Act".

A recent view

In more recent times, McWilliam J.

granted a

temporary injunction prohibiting the picketing of

University College Galway. Negotiations had been

going on between the I.T.G. W.U. and officers on behalf

of the college with regard to the conditions of

employment of about 80 employees. The Secretary of

the U.C.G. branch of the union informed the college

authorities that he and his fellow members would place

pickets on the college. The injunction was granted

against the secretary of the U.C.G. branch of the Union

and against his servants or agents. Counsel for U.C.G.

submitted that the college did not carry on a trade or

business and, consequently, any picketing of its

premises by its employees was not protected by the

Trade Disputes Act 1906. This submission proved to be

successful.

Excluded Employees

It can be seen from the above decisions that "trade or

industry" according to the Irish Courts implies a "trade

or industry in the sense of profit making enterprise and

no other. The range of employees excluded from the

protection of the Trade Disputes Act 1906 by this

restrictive interpretation of "workmen" was very

considerable. Those engaged in nursing, teaching

(including university staff), civil servants, local authority

workers, domestic employees and employees engaged in

private employment of a non profit making nature were

not protected by the Trade Disputes Act 1906. Any

picketing by such persons, could, on the basis of the

decisions quoted above, be restrained by injunction and

the employer would be prohibited by the 1906 Act from

seeking damages or compensation for wrongful action.

Legislative change

This narrow construction of "trade or industry" by the

Irish Courts was noted by the Royal Commission on

Trade Unions and Employers' Associations chaired by

Lord

Donovan.

The

Donovan

Commission

recommended that the definition of "workmen" be

amended as follows:

"The expression 'employee' means any person who

has entered into or works under (or in the case of a

150

contract which has been terminated worked under) a

contract with an employer, whether the contract be by

way of manual labour, clerical work or otherwise, be

expressed or implied, oral or in writing; and whether it

be a contract of service, of apprenticeship or a

contract personally to execute any work or labour".

In this country the Trade Union Bill of 1966 intended

to delete the words "in trade or industry" from the

definition of "workmen" contained in s.5 (3) of the

Trade Disputes Act 1906. This measure was never

carried through, and the Bill is now defunct. However,

clause 13 of the National Understanding (1980)

provided a commitment by the Government to

introduce such a change by legislation. The provisions of

section I of the Trade Disputes (Amendment) Act 1982

would appear to fulfil that commitment.

1982 Act

Section one of the Act provides as Follows:—

"Section 5 of the Trade Disputes Act 1906 is hereby

amended by the substitution of the following

definition for that of 'workmen' in subsection (3):

"and the expression 'workmen' means all persons

employed, whether or not in the employment of the

employer with whom a trade dispute arises, but does

not include a member of the Defence Forces or of the

Garda Siochana".

The Act deletes the words "in trade or industry" from

the definition of "workmen" as defined in s.5 (3) of the

Trade Disputes Act 1906 and by substituting in their

place "all persons employed", now extends, to all

members of authorised trade unions holding a

negotiation licence!

the protection of the 1906 Act.

Section 2 of the 1982 Act merely provides for its short

title and for its collective citation as the Trade Union

Acts 1871 to 1982. These are the only two sections in the

1982 Act.

Desirability of the change

The amendment to the definition of "workmen"

contained in the 1982 Act is to be welcomed in so far as it

clarifies the judicial uncertainty which surrounded the

question of who was or was not a "workman" within the

meaning of the Trade Disputes Act 1906 and brings

within the definition of "workmen" many employees

who, previously would have been denied the rights and

immunities accruing to "workmen" under the Trade

Disputes Act 1906.

It would be fair to say that the interpretations given to

the Trade Disputes Act 1906 have led to results of truly

labyrinthine complexity.

The 1906 Act has been looked

upon with disfavour by the judiciary in Ireland and this is

evident from the following judicial observations:

Kenny, J.

has referred to the 1906 Act as having

been introduced "to redeem an election pledge of the

Liberal party to overrule the decision of the House of

Lords in

Taff Vale

and there are many indications in it

that it was hurriedly drafted and that its wording did

not receive adequate consideration".

Parke, J.

stated in the same case "the Trade

Disputes Act 1906 was a child of political expediency,

hastily conceived and prematurely delivered. It has

now survived more than the allotted span of life with

all its inbred imperfections still uncorrected".

The Trade Disputes (Amendment) Act 1982 while it