The Gazette 1977

DECEMBER1977

GAZE1TE

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.

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