Esplanade Pharmacy Ltd v Larkin and Others

• Jurisdiction: Ireland
• Judgment Date: 01 January 1958
• Date: 01 January 1958
• Docket Number: 1953. No. 1077P.
• Court: Supreme Court

High Court

Supreme Court

1953. No. 1077P.

Esplanade Pharmacy Ltd. v. Larkin and Others.

THE ESPLANADE PHARMACY LIMITED

Plaintiffs

and

JAMES LARKIN, SAMUEL HANNON and CHRISTOPHER BYRNE

Defendants.

Trade union - Agreement regulating working hours of union members - Agreement permitting only two hours' duty on alternate Sundays and bank holidays - One union member employed - Shop open beyond agreed hours of duty - Union member not required to work in excess of agreed hours - Union requiring employer to open shop for permitted duty hours only - Refusal by employer - Whether picketing of employer's premises lawful - Whether trade dispute in existence - Injunction - Trade Disputes Act, 1906 (6 Edw. 7, c. 47), ss. 2 and 5.

Plenary Summons.

The Esplanade Pharmacy Limited (hereinafter referred to as the Company) carried on business as pharmaceutical chemists at 4 Albert Avenue, Bray, County Wicklow, and at 69 Upper George's Street, Dun Laoghaire, County Dublin. The Company had one employee only, a Miss McEneany. The directors of the Company were a Mr. and Mrs. Pattison, who also worked in the shop.

Pharmacy owners were banded together in an association called the Irish Drug Association and the employees were members of the chemists' branch of the Workers' Union of Ireland. The Association in 1951 entered into a written agreement with the Union regarding wages, hours of trade and conditions of employment. Under the heading, "Hour of employment," it was provided that employees should have two hours' duty from 11 a.m. to 1 p.m. on alternate Sundays and on bank holidays.

In the summer of 1953 the Company decided to trade all day on Sundays, but Miss McEneany's hours of duty were in no way affected, Mr. and Mrs. Pattison looking after the shop themselves for the extra time over and above the agreed two hours.

Adjacent to the Company's premises in Bray was another pharmacy owned by one, Mrs. McGuirk, who employed a Miss O'Neill who was also a member of the chemists' branch of the Union. On the 8th June, 1953, Miss O'Neill wrote to the Union complaining of the extended hours of opening of the Company's premises as being beyond "the proper trading hours," and because she alleged that it would mean that her hours would be "staggered" or that she would have to work overtime. She requested the Union to investigate the matter and inform her what action could be taken. There were also verbal complaints from other members of the Union working in Bray. Mrs. McGuirk also stated to the Union that unless the Company was made to observe the agreement she also would stay open on Sunday.

Correspondence then took place between the secretary of the Union and the Company. The Company was requested by the Union to observe the restricted trading hours under threat of a picket being placed on the Company's premises. This the Company refused and the Union directed Miss McEneany to leave the Company's employment, which she did. On the 29th July, 1953, the Union placed a picket on the Company's premises, and, on the 10th August, 1953, the Company commenced proceedings in the High Court, claiming an injunction restraining the defendants from picketing the Company's premises, and claiming damages in respect thereof. At the hearing, the Company withdrew their claim for an injunction in respect of the Dun Laoghaire premises.

E., a Company, owned a chemists' shop in Bray. The directors of theE. Company were Mr. P. and his wife. In the shop they employed M.,a member of the W. Union. By an agreement between the I. D. A., of which the E. Company was a member, and the W. Union the hours of duty of the Union's members were limited to two hours on alternate Sundays and bank holidays. In the summer of 1953 the E. Company stayed open all day on Sundays, but outside the two permitted working hours one or other or both of the said directors attended the shop so that M's. conditions were in no way affected.

As a result of the representations of O., an employee of an adjacent chemist, the Union requested E. to close the shop except for the permitted hours of duty, alleging that by E. keeping open the hours and conditions of work of members of the Union employed in the area might be worsened by reason of E's. competitors endeavouring to compete with E. Upon the refusal of E. to accede to this request the Union instructed M. to leave the employment of E., which she did. The Union then picketed the premises. E.commenced proceedings for an injunction restraining the defendants, members of the W. Union, from picketing its premises and also claiming damages.

Held by the Supreme Court (Maguire C.J., Lavery, Kingsmill Moore O'Daly and Maguire JJ., affirming Dixon J.), that the action of the W.Union was an attempt to enforce an agreement as to trading hours for the particular premises involved, and that was a matter concerned with the employer's business rather than the employee's conditions. There was therefore no trade dispute in existence and the picketing should be restrained.

Dixon J. :—

The picketing is unlawful unless the defendants, who are members of the Workers' Union of Ireland, can justify it on some legal ground. The main ground on which they seek to justify the picketing in this case is that it is protected by the Trade Disputes Act of 1906. It is for them to establish that defence, that is, that the picketing is in contemplation or furtherance of a trade dispute and that a trade dispute exists. The term, "trade dispute," has been defined in the Trade Disputes Act of 1906, and this Act, as has been pointed out in more than one of the cases cited, must receive a fairly strict interpretation. The dispute must be connected with the employment or non-employment or the terms of the employment or with the conditions of labour of any person, and the question is, in the present case, is the dispute—there is undoubtedly a dispute— connected with any of these matters?

Prima facie it is connected with a different matter, that is, with the question of trading hours—the hours during which the plaintiff can, or may, keep his premises open. These are said to be well recognised in the Bray district. in which the plaintiffs have their premises, and it is also said that they have been the subject of an agreement between the Irish Drug Association, representing the wholesale and retail chemists, and the union—the Workers' Union of Ireland. That agreement is not, perhaps, very clear on the point. It is understandable that it should not be, because it was drawn up, as Mr. Wood suggested, in a common atmosphere of assumption and understandings but, primarily, it was concerned, and necessarily concerned from the point of view of the Union, with the position of the employees, their remuneration, conditions of labour and working hours and so on, and the section headed,"Hours of...