Dublin City Council v Technical Engineering & Electrical Union

• Jurisdiction: Ireland
• Judgment Date: 01 January 2010
• Docket Number: [2010 No.
• Date: 01 January 2010
• Court: High Court

[2010] IEHC 289,

[2010 No. 3695 P]

Dublin City Council v. Technical Engineering & Electrical Union

Dublin City Council

Plaintiff

and

Technical Engineering & Electrical Union, Dermot Gannon and Tom Cummins

Defendants

Cases mentioned in this report:-

Associated Newspapers Group v. Wade [1979] 1 W.L.R. 697; [1979] I.R.L.R. 201; [1979] I.C.R. 664.

Bayzana Ltd. v. Galligan [1987] I.R. 238.

Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88; [1984] I.L.R.M. 47.

Cleary v. Coffey (Unreported, High Court, McWilliam J., 30th October, 1979).

Conway v. Wade [1909] A.C. 506.

Crilly v. T. & J. Farrington Ltd. [2001] 3 I.R. 251; [2002] 1 I.L.R.M. 161.

Ellis v. Wright [1976] I.R. 8.

Esplanade Pharmacy Ltd. v. Larkin and Others [1957] I.R. 285.

Express Newspapers Ltd. v. McShane [1980] A.C. 672; [1980] 2 W.L.R. 89; [1980] 1 All E.R. 65; [1980] I.R.L.R. 35; [1980] I.C.R. 42.

Ferguson v. O'Gorman and Others [1937] I.R. 620.

Goulding Chemicals Ltd. v. Bolger [1977] I.R. 211.

Heeney v. Dublin Corporation (Unreported, Supreme Court, 17th August, 1998).

Iarnród Éireann v. Holbrooke [2001] 1 I.R. 237; [2001] E.L.R. 65.

Malincross v. Building and Allied Trades Union[2002] 3 I.R. 607; [2002] E.L.R. 78.

Maradana Mosque Trustees v. Mahmud [1967] A.C. 13; [1966] 2 W.L.R. 921; [1966] 1 All E.R. 545.

Talbot (Ireland) Ltd. v. Amalgamated Transport and General Workers' Union (Unreported, Supreme Court, 30th April, 1981).

Labour law - Trade union - Trade dispute - Picketing - Place of work - Employer ceased working from place of picketing after commencement of picketing - Whether picketing lawful - Whether picketing in contemplation or furtherance of trade dispute - Test applicable - Whether picketing at employer's place of work or business - Industrial Relations Act 1990 (No. 19), s. 11.

Plenary summons

The facts have been summarised in the headnote and are more fully set out in the judgment of Laffoy J., infra.

The proceedings were instituted by way of plenary summons dated the 19th April, 2010. By order dated the 20th April, 2010, the High Court (Laffoy J.) granted the plaintiff an interim injunction restraining, for a period of one week, the defendants from picketing ten of its apartment blocks in Ballymun, Dublin. By judgment and order dated the 27th April, 2010, the High Court (Laffoy J.) refused the plaintiff's application for an interlocutory injunction covering the period up to the trial of the action (see [2010] IEHC 288]).

The plaintiff delivered a statement of claim dated the 28th April, 2010. An amended defence was delivered by the first and third defendants on the 19th May, 2010. The plaintiff's reply was delivered on the 10th May, 2010.

The matter was heard before the High Court (Laffoy J.) on the 20th and 21st May, 2010.

Section 11(1) of the Industrial Relations Act 1990 provides:-

"It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, 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."

The plaintiff engaged Pickerings to service, maintain and repair the lifts in its apartment blocks in Ballymun, Dublin. Pickerings established a permanent base in one of the apartment blocks for this purpose and employed six personnel exclusively there.

Pickerings decided to make three of its employees redundant and a trade dispute arose between Pickerings and the first defendant and its members, including the second and third defendants. The first defendant placed pickets at Pickerings' premises in Ballymun with the effect that no servicing, maintenance or repairs were carried out to the lifts in the apartment blocks. The plaintiff was unable to engage a contractor to service and repair the lifts while the first defendant maintained the picket, even after it terminated Pickerings' contract and Pickerings ceased operations in Ballymun.

The plaintiff instituted proceedings seeking, inter alia,declaratory relief. It claimed that the industrial action was unlawful and in breach of the provisions of the Act of 1990, so as to deprive the defendants of the immunities conferred by that Act.

The primary issue was whether the picketing at the Ballymun premises was lawful by virtue of the application of s. 11(1) of the Act of 1990. The first question under this heading was whether the picketing could be found to be "in contemplation or furtherance of a trade dispute" after the termination of Pickerings' contract with the plaintiff and the cessation of operations by Pickerings at the premises. The second question was whether the picketing was "at… or at the approaches to, a place where [the] employer works or carries on business".

On the evidence it was clear that the picketing was taking place within the boundaries of property of which the plaintiff was the owner in fee simple and had possession. However, it was also clear that the picket could easily be moved to a nearby public pavement.

Held by the High Court (Laffoy J.), in declaring that the defendants were prima facie trespassing on the property of the plaintiff but that if the picket was moved to the public pavement it would be lawful in accordance with s. 11(1) of the Act of 1990, 1, that, in assessing whether picketing was "in contemplation or furtherance of a trade dispute" under s. 11(1) of the Act of 1990, the test was whether the picketers were acting in the reasonable belief that their actions were in furtherance of the trade dispute between them and the employer.

Associated Newspapers Group v. Wade [1979] 1 W.L.R. 697, Bayzana Ltd. v. Galligan [1987] I.R. 238,Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 and Express Newspapers Ltd. v. McShane[1980] A.C. 672 considered.

2. That, even where the employer in a trade dispute ceased operating at the premises being picketed, the picketers could still reasonably believe that their actions would have the effect of promoting their interests in the trade dispute.

3. That the relevant date at which to test whether an employer being picketed worked or carried on business at the location of the picketing was the date when the picketing commenced. If the test was satisfied at that date, the picketing was lawful, provided the other requirements of s. 11(1) of the 1990 Act were complied with, even if the employer was no longer working or carrying on business at the location at the time the court was considering the application of s. 11(1).

Malincross v. Building and Allied Trades Union [2002] 3 I.R. 607 considered. Iarnród Éireann v. Holbrooke [2001] 1 I.R. 237 and Maradana Mosque Trustees v. Mahmud [1967] A.C. 13 distinguished.

Cur. adv. vult.

Laffoy J. 9th June, 2010

Introduction

[1] The factual background to these proceedings is outlined in my judgment of the 27th April, 2010 (see [2010] IEHC 288), on the plaintiff's application for an interlocutory injunction restraining the defendants, pending the trial of the action, from picketing ten apartment blocks at Ballymun in Dublin ("the Ballymun premises"), which are owned by the plaintiff and occupied by its tenants. Following the refusal of that application, steps were taken by the parties to bring the matter to trial as expeditiously as possible. The third defendant was served with the proceedings and is represented by the legal team representing the first defendant. The second defendant was not served. At the hearing of the action, on the application of the plaintiff, the proceedings against the second defendant were adjourned generally with liberty to re-enter. In referring to the defendants in this judgment, I am referring to the first defendant ("the Union"), which is a registered trade union, and to the third defendant, who is a member of the Union.

[2] Both sides are to be commended for co-operating to have this matter ready for trial just three weeks after the interlocutory application was refused. The hearing of the substantive action commenced on the 20th May, 2010, the plaintiff having delivered its statement of claim on the 28th April, 2010, and the defendants, without objection from the plaintiff, having delivered an amended defence on the 19th May, 2010. The plaintiff had already delivered a reply, which contained the usual joinder of issue, on the 10th May, 2010. The court has had the benefit of an issue paper prepared on behalf of the plaintiff, which addresses the issues which arise between the parties, and the defendants' response in relation to those issues, and it also has had the benefit of outline written submissions from both sides.

[3] The action was heard on oral evidence, which elaborated on, but was not substantially different from, the affidavit evidence which was before the court on the interlocutory application. I propose only referring to the evidence as necessary.

[4] I propose outlining the pleadings in detail to give a comprehensive overview of the respective positions of each side, although I consider some of the issues arising from the pleadings to be of peripheral relevance to the determination of the primary issue - whether the picketing is lawful.

The pleadings and observations thereon

[5] It is pleaded that the plaintiff, in addition to being a statutory corporation established pursuant to the Local Government Act 2001, is a housing authority within the meaning of the Housing Acts and is a provider of low rent accommodation to tenants in accordance with its statutory remit. It is further pleaded that the plaintiff is under an obligation to provide adequate accommodation for its tenants and, in particular, it is under an obligation to repair and maintain lifts and elevators in its rented accommodation...