H.A. O'Neil Ltd v Unite the Union and Others

JurisdictionIreland
JudgeMr. Justice Gerard Hogan,Mr. Justice Brian Murray,Mr. Justice O'Donnell
Judgment Date06 March 2024
Neutral Citation[2024] IESC 8
CourtSupreme Court
Docket NumberS:AP:IE:2023:000046
Between/
H.A. O'Neil Limited
Plaintiff/Respondent
and
Unite the Union, Patrick James Goold, William Mangan and Damian Jones
Defendant/Appellants

[2024] IESC 8

O'Donnell C.J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

S:AP:IE:2023:000046

AN CHÚIRT UACHTARACH

THE SUPREME COURT

Industrial relations – Interlocutory injunction – Industrial Relations Act 1990 s. 19(2) – Appellants appealing against an interlocutory injunction – Whether an injunction ought not to have been granted

Facts: The plaintiff/respondent, H. A. O’Neil Ltd, brought an application seeking an interlocutory injunction restraining the defendants/appellants, Unite the Union, Mr Goold, Mr Mangan and Mr Jones, from picketing at certain identified premises; interfering with access to and egress from those premises; erecting placards or distributing leaflets or documents stating that there was a trade dispute between the plaintiff and its employees; inciting or instructing others to facilitate picketing of the premises; and inducing breach of contract of employment of other employees of the plaintiff. The plaintiff also sought orders of specific performance of the contracts of employment of the second, third and fourth defendants, requiring them to work at the designated sites. In an ex tempore judgment delivered on 23 March, 2023, the High Court (O’Regan J) granted an interlocutory injunction. The order effectively granted the reliefs sought in the notice of motion restraining picketing, leafleting, inducing breach of contract, and any strike itself but subject to the qualification that the order only captured any industrial action taken on foot of the ballot previously conducted by the union which, therefore, did not exclude the possibility of further procedures being followed, which could lead to industrial action and would not be restrained by the order as framed. By a determination of 21 June, 2023 ([2023] IESCDET 86) leave to appeal directly to the Supreme Court was granted pursuant to Article 34.5.4° of the Constitution. The panel found that this case raised important issues in respect of the law relating to the grant of injunctions in respect of industrial disputes, and in particular, “the interplay between s. 19(2) of the [Industrial Relations Act 1990] and the general equitable jurisdiction to grant injunctive relief, and regarding the issue of the nature of the ballot required of members of the trade union to satisfy the statutory test”.

Held by O’Donnell CJ that even if the plaintiff was correct that the strike by an employee (or industrial action organised by the union) could be established at trial to be a breach of contract, the plaintiff could obtain a remedy in damages or perhaps even a permanent injunction at trial but s. 19(2) would have precluded the grant of an interlocutory injunction so long as it could be said that there was a fair case that the defendant was acting in contemplation or furtherance of a trade dispute. Even if the plaintiff could go further and establish that the combined effect of the Industrial Relations (Amendment) Act 2015 provisions and the contract was that there could be no valid trade dispute because the no strike clause had been incorporated into the contract and had the effect of precluding such a dispute from coming into existence until the dispute resolution procedure was operated, O’Donnell CJ held that s. 19 would still operate to prevent the grant of an interlocutory injunction so long as the conditions in the section were satisfied, as a fair case had been established that the action was in furtherance of a trade dispute. Finally, even if the plaintiff had established that the picketing was unlawful and therefore tortious, or that there was unlawful inducement to breach of contract, O’Donnell CJ held that the only remedy for the plaintiff would be damages and perhaps a permanent injunction, so long as the conditions of s. 19 applied and precluded the grant of an interlocutory injunction. Therefore, O’Donnell CJ held that s. 19 provided a full answer to the plaintiff’s claim for an interlocutory injunction in this case.

O’Donnell CJ held that, as the law stood as of the date of the application for an interlocutory injunction, an injunction ought not to have been granted in this case. The order having already been set aside, O’Donnell CJ allowed the appeal from the judgment of the High Court.

Appeal allowed.

JUDGMENT of Mr. Justice Gerard Hogan delivered on the 6th of March 2024

1

. While the background to this appeal concerns a routine trade dispute, the issues raised thereby are of considerable significance regarding the proper interpretation and application of the Industrial Relations Act 1990 (“the 1990 Act”). HA O'Neill Ltd. is a specialist mechanical engineering firm. In early March 2023 it sought (and later obtained) an interlocutory injunction in the High Court restraining certain of its employees (who are the second, third and fourth defendants) engaging in picketing at the sites of various third-party properties where the company had been engaged in various building projects. The employees were members of Unite the Union, a British/Irish union. Unite holds a negotiating licence under the Trade Union Act 1941.

2

. It is accepted that prior to taking industrial action concerning what are described as travel time payments (i.e., a form of travel allowance in respect of the cost of travelling to building sites) a secret ballot in favour of such industrial action was duly taken and that the requisite notice was given to the employer. The essence of the case made by the employer was principally that by reason of a ministerial Sectoral Employment Order made in 2015 the contracts of employment of the employees had been statutorily adapted so that no industrial action could lawfully take place unless and until the dispute resolution procedure provided for in that order had been exhausted. It was said that in those circumstances the anti-injunction provisions of s. 19(2) of the 1990 Act did not apply.

3

. As it happens the SEO in question was subsequently found by the High Court in October 2023 to be invalid. One consequence of this was that it was accepted at the hearing of the appeal that there was now no continuing basis for the injunction. The issue was then reduced to whether the High Court should have granted the interlocutory relief which it did in March 2023 by reference to the law as it was then understood to be, the provisions of s. 19(2) of the 1990 Act notwithstanding.

4

. While the case for such an injunction was powerfully and carefully made, I agree entirely with the thorough analysis of the interpretation and application of the 1990 Act rejecting this argument which is to be found in the judgments of O'Donnell C.J. and Murray J. I simply wish to make some observations regarding some of the broader issues which would also seem to arise on this appeal.

5

. While it may seem somewhat remarkable in the modern era, it was difficult to avoid the impression that the shadows of Quinn v. Leathem [1901] AC 495 still lurked somewhere in the background to this case. Yet, for the reasons, I am about to set out briefly, I consider that it is quite wrong to approach the entire question of the lawfulness (or otherwise) of industrial action principally through the prism of the common law economic torts which were deployed by Victorian judges in response to the emergence of the trade union movements in the second half of the 19 th century.

6

. If, for example, the picketing otherwise complies with the requirements of the 1990 Act, s. 11(1) provides that such conduct is lawful, irrespective of whether the employees have broken the terms of their contracts of employment in engaging in strike action. In these circumstances it is, as O'Higgins J. observed in Kire Manufacturing Co. Ltd. v. O'Leary, High Court, 29 th April 1974 by reference to the corresponding provisions of s. 2 of the Trade Disputes Act 1906, “wholly irrelevant” that there has been a breach of their contract of employment “once they are doing so in furtherance of a trade dispute and once the fact of picketing is the only complaint made against them.”

7

. There are essentially two reasons for this wider conclusion regarding the need to banish, once and for all — at least in the industrial relations context — the shade of Quinn v. Leathem to some legal Hades from whence it should not be allowed to escape save, perhaps, for the purposes of understanding legal history. The first is the provisions of Article 40.6.1.iii° of the Constitution. It is arguably implicit in these provisions that the right to form trade unions implies in turn at least some – perhaps as yet undefined – zone of freedom for those unions to organise and campaign. The effet utile of this constitutional provision would otherwise be compromised.

8

. It is true of course that Article 40.6.1.iii° expressly provides that laws may be enacted “for the regulation and control in the public interest” of this right to form trade unions. This means that the Oireachtas can regulate and control by law the right to engage in industrial action. This regulatory power might mean, for example, that it would be lawful for the Oireachtas to restrict the right to form trade unions in particular sectors of the economy or even to abridge the right to take collective action in certain circumstances. Yet the substance of this right must also be safeguarded, so that the constitutional right to associate and to form a trade union is given real meaning. I cannot help thinking but that the case-law to date has given wholly insufficient weight to these constitutional considerations.

9

. This brings me to the second reason for my conclusion, namely, the enactment of the 1990 Act itself. This Act carefully safeguards the right to engage in industrial action, provided that certain important safeguards are complied...

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1 firm's commentaries
  • Employment - Horizon Scanner: Infrastructure, Construction, Energy, March 2024
    • Ireland
    • Mondaq Ireland
    • 22 March 2024
    ...recently published an important decision on the topic of picketing injunctions. In the case of HA O'Neil Limited v Unite the Union & Ors [2024] IESC 8, the Supreme Court unanimously allowed the appeal by Unite the Union, Patrick James Gould, William Mangan and Damian Jones of a High Court r......

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