Becton, Dickinson Ltd v Lee

• Jurisdiction: Ireland
• Judgment Date: 19 December 1973
• Date: 19 December 1973
• Docket Number: [1970. No. 2596 P.]
• Court: Supreme Court

Becton, Dickinson Ltd. v. Lee

BECTON, DICKINSON AND COMPANY LIMITED

Plaintiffs

and

PATRICK LEE and Others

Defendants.

[1970. No. 2596 P.]

Supreme Court

Trade union - Trade dispute - Strike - Picketing - Employees designating trade union as their representative - Employer refusing to recognise authority of trade union - Trade dispute - Contract of employment - Implied terms - Strike notice - Trade Disputes Act, 1906 (6 Edw. 7, c. 47), ss. 1, 2, 3, 5.

The plaintiffs agreed with trade union N that the plaintiffs would not employ workers of a particular category who had not agreed to become members of that union. The first five defendants were members of trade union A and each of them (except the first) on entering into a contract of employment with the plaintiffs was required by them to agree, and did agree, in writing to a special term binding him to become a member of union N and to remain a member of that union during his employment with the plaintiffs. In similar circumstances the first defendant agreed to become a member of union T. The sixth defendant was an official of union A. Shortly after the commencement of the employments, the plaintiffs urged the first five defendants to effect the transfers to the unions specified in their contract but, instead of doing so, these defendants authorised union A to represent them in dealings with the plaintiffs in the matter; and that union informed the plaintiffs of its objection to the transfer of its members and appointed a shop steward to act in the plaintiffs' factory. The plaintiffs then stopped writing to union Aand refused to recognise the authority of the shop steward so appointed. One week's notice of strike action was given to the plaintiffs by union A and, at the expiration of that period, a strike by its members occurred at the plaintiffs' factory which was then picketed peacefully by the defendants. Union N was always willing to accept transfers of workers from union A.

The plaintiffs brought an action in the High Court and sought an order restraining the defendants from picketing the plaintiffs' factory.

Held by McLoughlin J., in granting the injunction, that there was no trade dispute within the meaning of s. 5 of the Trade Disputes Act, 1906, and that in any event the defendants were precluded from raising, as a trade dispute, an issue based on the special term.

On appeal by the defendants it was

Held by the Supreme Court (Ó Dálaigh ó dálaigh C.J., Walsh, FitzGerald, Henchy and Butler JJ.), in allowing the appeal, 1, that the defendant employees were not estopped from asserting that they were entitled to exercise the rights conferred by the Trade Disputes Act, 1906, and that the issues could be decided on the assumption that the special term was not invalid having regard to the provisions of the Constitution.

2. (perÓ Dálaigh ó dálaigh C.J., Walsh and Butler JJ.)

• (a) That the dispute arising from the refusal of the plaintiffs to treat with union A, being the union authorised by the employees to be their representative in negotiations concerning a term of their employment, constituted a trade dispute within s. 5 of the Act of 1906.

• (b) That the existence of the special term did not support an inference that there was an implied term in each contract of employment prohibiting each defendant employee from engaging in a dispute relating to the special term.

• (c) That the fulfilment of the special term was not a condition precedent to the creation of each contract of employment, and that the admitted breach of the special term had not discharged the contract.

• (d) That each contract of employment contained implied terms having the effect (i) that service of strike notice of appropriate length would not amount to notice of termination of the contract, and would not constitute a breach of the contract and (ii) that a strike commencing in accordance with such strike notice would not be a breach of contract: Morgan v. Fry[1968] 2 Q.B. 710 approved.

• (e) That, accordingly, the participation of a defendant employee in the strike did not constitute a breach of his contract of employment: Cooper v. Millea[1938] I.R. 749not approved; Riordan v. Butler[1940] I.R. 347 andRookes v. Barnard[1964] A.C. 1129 distinguished.

3. (FitzGerald and Henchy JJ. dissenting) That the picketing conducted by the defendants at the plaintiffs' factory had been conducted lawfully for the purpose stated in s. 2 of the Act of 1906 and that, if he had induced the breach of the special term, the sixth defendant was protected by s. 3 of the Act of 1906.

Witness Action.

The plaintiffs' action was commenced by plenary summons dated the 21st July, 1970. The defendants were Patrick Lee, who had agreed to become a member of the Irish Transport and General Workers Union, and Michael McGarry, Myles Dunne, Kieran Connell and Patrick McCarthy, who had agreed to become members of the National Engineering and Electrical Trade Union; and Francis Callaghan who was the secretary of the Dublin district of the Amalgamated Union of Engineering and Foundry Workers, of which union the other defendants were members. By letter dated the 13th July 1970, the sixth defendant, acting as secretary of the Dublin district of the Amalgamated Union of Engineering and Foundry Workers, wrote to the plaintiffs as follows:— "Further to previous notice, conveyed to you on July 7th, as a result of your unchanged attitude in refusing to recognise our shop steward, and also your refusal to negotiate with this union, we now convey seven days strike notice to you, expiring at finishing time on Tuesday, 21st July, 1970." In their statement of claim dated the 17th September, 1970, the plaintiffs claimed (a) a declaration that the dispute between the plaintiffs and the defendants was not a trade dispute within the meaning of the Trade Disputes Act, 1906; (b) an injunction restraining the defendants from picketing the plaintiffs' factory; and (c) damages for breach of contract, nuisance and conspiracy. All three trade unions were authorised trade unions and the holders of negotiation licences under the Trade Union Act, 1941.

Sections 1-3 of the Trade Disputes Act, 1906, provide:—

"1. The following paragraph shall be added as a new paragraph after the first paragraph of section three of the Conspiracy and Protection of Property Act, 1875:— '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.'

2.—(1) 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.

(2) Section 7 of the Conspiracy and Protection of Property Act, 1875, is hereby repealed from 'attending at or near' to the end of the section.

3. 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 that it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills."

Section 5, sub-s. 3, of the Act of 1906 provides:—

"(3) In this Act and in the Conspiracy and Protection of Property Act, 1875, the expression 'trade dispute' means 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, and the expression 'workmen' means all persons employed in trade or industry, whether or not in the employment of the employer with whom a trade dispute arises; and, in section three of the last-mentioned Act, the words 'between employers and workmen' shall be repealed."

The plaintiffs' action was tried by McLoughlin J., sitting without a jury, on the 4th-6th November, and the 1st-3rd December. 1970.

The defendants appealed to the Supreme Court from the judgment and order of the High Court.

Cur. adv. vult.

McLoughlin J.:—

The plaintiff is a limited company which manufactures disposable hypodermic syringes with factory premises at Drogheda and Dun Laoghaire. The plaintiffs started first in Drogheda and for some years prior to the events giving rise to this action had an agreement with the Irish Transport and General Workers Union (ITGWU) that all employees, other than clerical staff and craft workers, would be and remain members of that trade union. The plaintiffs had a similar agreement with the National Engineering and Electrical Trade Union (NEETU) in regard to craft workers. In the year 1969 the plaintiffs opened their second factory at Dun Laoghaire and began to recruit staff for that factory. The plaintiffs agreed with the two unions not to employ persons, other than managerial or clerical staff, who were not or would not agree to become members of the appropriate union.

The first five defendants became employees of the plaintiffs at their factory at Dun Laoghaire. The other defendant, Francis Callaghan, is a party to the action in his capacity of Dublin district secretary of the Amalgamated Union of Engineering and Foundry Workers (AEF). Each one of the first five defendants, on entering employment with the plaintiffs, signed an agreement in these terms:—

"By my signature below I certify that I understand fully the conditions of employment offered and that I agree to become and remain a member of the --------- union during the time I...