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GAZE1TE
DECEMBER1977
was heard on oral evidence, and on
the affidavits of the parties. Hamilton
J. held that the picketing complained
of was in respect of a trade dispute,
and dismissed the application for an
injunction. The Supreme Court
insisted on the parties lodging written
submissions.
The following submissions were
argued in the Supreme Court:
(1) The plaintiffs contended that
Section 11 of the Trade Union Act,
1941, which confined the application
of Sections 2, 3 and 4, of the Trade
Disputes Act, 1906, to authorised
trade unions which held negotiating
licences, and their members and
officials, applied here. In such a case,
it was contended that the defendants
would have no remedy, as they were
acting in defiance of a settlement
reached through the proper channels
with the organised labour views, and
against the expressed views of their
union. The Supreme Court rejected
this submission on the ground that
the defendants were all members of a
trade union.
(2) The plaintiffs contended that
Section 11 (1) of the Trade Union
Act, 1941, conflicted with the
Constitution. The Supreme Court
reserved this question for the future.
(3) The plaintiffs contended that
no trade dispute existed and that
therefore the picketing was illegal.
They contended that at the time of
the picketing of the plant, the
defendants were no longer their
employees. The defendants however
contended that the plaintiffs had
employment to give and were not
doing so, and in any event they were
workmen who had opposed the
redundancy settlement between the
plaintiffs and the unions. The
Supreme Court rejected this
submission on the grounds that it was
clear that there was employment in
relation to the removal of certain raw
materials which were intended to be
used in Cork, and that the defendants
thought they should have been
employed on this work; and that
therefore there was a dispute between
the defendants as workmen and the
plaintiffs as employers connected
with the non-employment of the
defendants.
(4) The plaintiffs contended that
where a dismissal of a workman was
lawful that no trade dispute could be
raised in relation to it. The Supreme
Court rejected as unsustainable
Overend J.'s contention in
Doran
v.
Lennon
[1945] I. R. 315, that a
lawful dismissal precluded the raising
20
of a trade dispute. It held that the
definition of a "trade dispute" was
sufficiently wide and general to include
any dispute between employer and
workman, provided it was connected
with employment. Meredith J.'s
dictum in
Ferguson
v.
O'Gorman,
[1937] I. R. 620, that "a workman
does not cease to be a workman
because he is dismissed and out of
employment and forced to take other
work" was approved.
(5) The plaintiffs contended that it
was implicit in the settlement
proposals that their acceptance by
the unions meant that there would be
no trade dispute and of course no
picketing and that this agreement
with the union had the absolute effect
of binding the defendants. The
Supreme Court rejected this
submission stating that it was clear
that although there was a valid
contract between the plaintiffs and
the unions, the defendants had at all
times repudiated and opposed the
settlement and there was no evidence
that the general rules of a union
bound individual members to accept
the decision of the majority.
(6) The plaintiffs contended that
the Redundancy Payments Acts,
1967, and 1973, are alleged to have
the effect of amending the Trade
Disputes Act, 1906, by withdrawing
the protection of that Act from
employees who became entitled to
redundancy payments. This ground
was rejected by Kenny J. in his
individual judgment on the basis of
his own High Court decision in
Cunningham Bros. Limited
v.
the
Irish Transport
and
General
Workers' Union.
(7) The plaintiffs contended that
the picketing of the plaintiffs'
premises did not qualify for
protection under S. 2 of the Trade
Disputes Act, 1906, because it was
not done for any of the purposes set
out in the Section. The Supreme
Court rejected this submission stating
that the action which is protected by
S. 2 must first of all be in
contemplation or furtherance of a
trade dispute, and that the motives,
good or bad, which inspired this
trade dispute, did not arise. The
Court found that it was for the
purpose of securing employment
during the post-closing operations of
the East Wall factory that the
defendants first of all conducted a sit-
in, and later a picket and that the
p i cket was undoub t ed ly in
furtherance of their disputed claim to
employment, and was fully within the
ambit of S. 2 of the 1906 Act.
The plaintiffs' action was
accordingly dismissed. So held by the
Chief Justice, and affirmed by
Henchy J., Griffin J. and also by
Parke J. and Kenny J. who both
delivered separate assenting
judgments.
Per O'Higgins C. J. "This case
highlights the extent to which
immunity for picketing is given by
statute to small minorities of
workmen, regardless of the wishes of
their fellow workmen, including their
fellow trade uni oni s t s, and
irrespective of how the picketing is
calculated to damage the particular
trade or industry or to conflict with
the common good. Whether the
degree of immunity for picketing
granted by the law should be put on a
more rational and just basis is
something that might well merit
consideration by those charged with
the framing and enactment of our
laws".
Per Kenny J. in his separate
assenting judgment. "Section 30 of
the Industrial Relations Act, 1946,
makes a registered employment
agreement binding on all the
members of the union which
negotiated it. If a similar provision
had been passed making all
agreements made by trade unions
with employers and approved by a
majority of their members binding on
all the members, the picketing in this
case would be contrary to law. I
think that the Minister for Labour
should give urgent attention to the
introduction of legislation which will
provide that any registered agreement
made between employers and a union
which is approved by a majority of
the members of that union or, where
an agreement relates to a worker
employed by one employer, is
approved by a majority of all the
workers employed by that employer
who are members of the union,
should be binding on all the members
of that union despite the fact that
they are not parties to the
agreement".
Gouldlng Chemicals Limited v.
Lawrence Bolger, Henry Byrne &
Others. Supreme Court—Judgment
of the Court given by the Chief Justice
on his behalf and on behalf of Henchy
J. and Griffin J. Separate assenting
judgments given by Kenny J. and
Parke J.—unreported—26 April,
1977.