Goulding Chemicals Ltd v Bolger

• Jurisdiction: Ireland
• Judge: O'HIGGINS C.J.,KENNYJ.:,PARKE J.:
• Judgment Date: 26 April 1977
• Neutral Citation: 1977 WJSC-SC 673
• Court: Supreme Court
• Docket Number: [1976 No. 3509 P]
• Date: 26 April 1977

GOULDING CHEMICALS LTD v. BOLGER

AFFIRMING HIGH-22.9.76

GOULDING CHEMICALS LTD.

v.

LAWRENCE BOLGER, HENRY BYRNE AND OTHERS

1977 WJSC-SC 673

O'Higgins C.J.

Henchy J.

Griffin J.

Kenny J.

Parke J.

(170/1970)

THE SUPREME COURT

1 JUDGMENT delivered on the 26th day of April 1977by O'HIGGINS C.J. HENRY GRIFFIN CONCURRING

2 This is an appeal by the Plaintiff company from the Judgment and Order of Mr. Justice Hamilton dismissing its claim for an injunction against picketing and for associated relief. The Defendants are all members of the Irish Transport and General Workers1 Union and were all former employees of the Plaintiff Company being part of the workforce at thePlaintiffs" plant at East Wall, Dublin. The issues which have arisen on this appeal require, in my view, to be considered in the light of facts which were established in evidence before the learned trial Judge. A short reference to these facts would appear appropriate.

3 The Plaintiff Company in the manufacture of fertilisers had two plants, one at East Wall in Dublin and the other in Cork. By reason of consistent and substantial falling off in the Plaintiffs" sales on the home market it was decided to close down the East Wallplant and to concentrate future effort on the Cork plant. The date for the closure of the East Wall plant was to be the 30th July 1976. This decision having been reached by the management of the Plaintiff Company it was communicated to a specially convened meeting of the staff and payroll unions representing all of those employed at the East Wall plant. This meeting held on the 14th June 1976 was the first of a series of meetings between the management of the Plaintiff Company and the different unions which had as their object the acceptance by the unions of the inevitability of the closing of the East Wall plant and the working out of satisfactory compensation terms for all of those who would as a result become redundant. These meetings resulted in the acceptance at a joint general meeting of all the unions representing those employed at the East Wall (some eleven in number) of a six-point statement issued on behalf of the Plaintiff Company on the 23rd July 1976. This statement having reiterated that the East Wall plant would close "permanently" on the 30th July and that wages and salaries for employees would cease on that date, set out terms for compensatory payments to employees basedon service which were significantly higher than would have been payable under the Redundancy Payments Acts. The acceptance of these terms by the joint general meeting of all the unions took place on the 27th July. If this agreement had been honoured and observed by all those to whom it was intended to apply, no further problem would have arisen and the Plaintiffs could have devoted their efforts towards making their continuing operations viable. Unfortunately this was not to be so. Upon the closing of the East Wall plant on the 30th July the Defendants all of whom were former employees of the Plaintiffs and all of whom were members of the I.T.G.W.U., one of the unions which had accepted the settlement, refused to leave the factory premises and staged a sit-in on these premises. This led to High Court proceedings on the part of the Plaintiffs and the granting of an injunction against the Defendants in respect of this trespassing. This injunction was obeyed and the sit-in ceased. However, on the 23rd August 1976 these Defendants commenced to picket the East Wall premises and this led to a further application by the Plaintiffs for an injunction to restrain suchpicketing. The Plaintiffs contended that this picketing was unjustified and illegal and that the effect of it was to prevent them removing from the East Wall premises a considerable tonnage of valuable fertiliser material which could be sold or used in Cork. They also complained that it interfered with the mothballing and preservation of the valuable machinery in the plant and with the provision of necessary security arrangements. The Defendants on their part contended that their action was lawfully taken in pursuance of a trade dispute relating to the closing of the plant and the non-employment of the Defendants in the work still requiring to be done at the plant, whether in relation to mothballing the machinery, removing the assets or providing security. It is apparent from the transcript that while some of the Defendants took part in the meetings between management and staff which led to thePlaintiffs" six-point statement of the 23rd July 1976, all the Defendants including those who attended such meetings were at all times opposed to the closing of the plant and to the conclusion of any agreement with the Plaintiffs. They maintained this attitude throughoutthe negotiations and prior to and after the final meeting at which thePlaintiffs" proposals were accepted by a majority. Their action in picketing the Plaintiffs" premises was in accordance with their declared attitude of hostility to the conclusion of any agreement which would facilitate the closing of the plant and the cessor of theiremployment.

4 The learned trial Judge having refused the Plaintiff's claim for an injunction and having held that the picketing complained of was in pursuance of a bona fide trade dispute this appeal has been brought by the Plaintiffs. At the hearing of the Plaintiffs" I claim for an injunction in the High Court and because of the urgency of the matter, pleadings were dispensed with and the issue-was decided by the learned trial Judge on the Affidavits filed on behalf of each of the parties and on the oral evidence which he heard. This Court thought it desirable on the lodging of this appeal in view of the absence of pleadings to require written submissions to be filed by the parties. In addition the Court permitted one matter to be argued on the appeal which had not been argued before the learned trialJudge. This related to the application, meaning and effect of section 11(1) of the Trade Union Act 1941and a question of the section's constitutionality having been raised by the Defendants, this Court directed that notice be served on the Attorney General and that he be heard on the appeal. The latitude which was given in this respect in this case to the parties to enable all possible issues between them to be ventilated on the appeal, even though some of the issues were not dealt with in the High Court, is unusual and, in my view, ought not to be regarded as a precedent. It was permitted here only with considerable misgivings and because there was no procedure under which the appropriate arguments could then be initiated in the High Court.

5 I now turn to the issues which have arisen on this appeal and I propose first of all to consider the meaning and effect of section 11 of the Trade Union Act 1941. This section provides as follows:-

6 2 "11 (1) Sections 2, 3 and 4 of the Trade Disputes Act, 1906, shall apply only in relation to authorised Trade Unions which for the time being are holders of negotiation licences and the members and officials of such unions, and not otherwise.

7 (2) This Section shall come into operation on the same day as Section 6 of this Act comes into operation."

8 It was submitted on behalf of the Plaintiffs that the effect of this section is to confine the protection given by sections 2, 3 and 4 of the Trade Disputes Act 1906 to such authorised trade unions holding negotiation licences issued under the 1941 Act and to the members and officials of such unions acting with the authority or pursuant to a decision of their union. If this be the true meaning and effect of section 11 then on the facts of this case the protection of the 1906 Act could not be available to the Defendants. The Defendants have acted in this case on their own in defiance of a settlement reached through the proper channels with the organised labour force employed by the Plaintiffs. They have in addition acted in opposition to the views and therefore without the approval of their own union. If section 11 confined the right to picket only to those unions which hold a negotiating licence and to their members and officials acting as such then it brought about a major change and reform in trade union law which has gone almost unnoticed through nearly four decades. Can thisbe the effect of the section? If it is, then it is the duty of this Court so to declare whatever may be the consequences.

9 In construing a statute certain rules have been laid down which when observed lead to some certainty of construction. In the first place, one seeks the intention in the words used which must, if they are plain and unambiguous, be applied as they stand. The words used in section 11(1) state, and state plainly, that the three named sections of the Trade Disputes Act shall "apply only" to the described trade unions and "the members and officials of such trade union". The section goes on to add finally in relation to the application of the three sections the words "and not otherwise". Here the words use appear to be used without ambiguity and appear clearly to confine the protection of the Trade Disputes Act to the unions and the persons indicated. It seems to me therefore that one starts off in construing the sub-section by accepting the clear effect of the words used as being to abolish the protection previously provided generally by sections 2, 3 and 4 of the Trade Disputes Act except in the case of the unionsand persons mentioned. But the problem of construction does not end at this. Section 11(1) must now be read in conjunction with the three sections of the Trade Disputes Act which are now declared to operate only in the confined area permitted by section 11(1). As one looks at the language of these three sections now applied to the confined area by section 11(1) some further rules of construction require to be mentioned. It seems to me that...