Malincross v Building and Allied Trades Union

• Jurisdiction: Ireland
• Judge: Mr. Justice McCracken
• Judgment Date: 30 November 2001
• Neutral Citation: [2001] IEHC 170
• Docket Number: [2001 No. 16252 P],Record No. 2001 No. 16252P
• Court: High Court
• Date: 30 November 2001

[2001] IEHC 170

THE HIGH COURT

Record No. 2001 No. 16252P

MALINCROSS LTD v. BUILDING & ALLIED TRADES UNION & ORS

BETWEEN

MALINCROSS LIMITED

PLAINTIFF

AND

BUILDING AND ALLIED TRADES UNION, NEVILLE FARRELLY, EDDIE TRAYNOR, JONATHAN CAMPBELL, PATRICKLOY

DEFENDANTS

Abstract:

Injunction - Employment law - Statutory interpretation - Secondary picketing - Transfer of undertakings - Whether picket should be restrained - Whether ballot sufficient to authorise strike - Industrial Relations Act, 1990 (No 19)

The plaintiff sought an interlocutory injunction to restrain picketing by the defendants at a building site. An employer, who worked at the site, had dismissed an employee which gave rise to the picket. A previous court order was granted by O'Donovan J on 26/09/2001 restraining picketing. The employer had finished working at the site but the picket had continued. The defendants accepted that the employer no longer worked at the site but that they were entitled to picket at the place where the employer had worked or carried out business in the past. The defendants also submitted that an injunction could not issue as a secret ballot had been held in accordance with section 14 of the Industrial Relations Act, 1990. The defendants also submitted that there had been a transfer of undertakings between the employer and the plaintiff.

Held by Mr. Justice McCracken in granting the injunction sought. There was a fair question to be tried regarding the construction of section 11(2) of the Industrial Relations Act, 1990. Although a ballot was carried out in accordance with the Act the question remained as to whether the ballot authorised the placing of pickets at the site when it ceased to be the company site of the employer. The purpose of the Act would appear to be that if the Union was to have the protection of section 19(2) of the Act then it must have the clear support of its members. There was a serious issue to be tried as to whether the picketing was authorised and this was a condition precedent to the operation of section 19(2) of the Act. Accordingly the court would apply the normal principles relating to the granting of injunctions. If an injunction was refused the court was satisfied that the plaintiff would suffer irreparable loss. The balance of convenience was in favour of granting the injunction sought with the plaintiff giving an undertaking as to damages.

1 Judgment of Mr. Justice McCracken delivered the 30th day of November, 2001

2 This is an application for an Interlocutory Injunction to restrain picketing by the Defendants at a building site at Naul Road, Balbriggan, Co. Dublin. The background to this Application is somewhat unusual.

3 A company known as Crescent Park Properties Limited is the freehold owner of the lands at Naul Road and by a licence agreement of 3rd July, 2000 granted a licence to the Plaintiff to develop and build an estate of one hundred and thirty five houses on the said lands. By a sub-contract dated 5th July, 2000 the Plaintiff entered into a contract with B. P. O'Sullivan (Leinster) Ltd. (hereinafter called "the Employer") whereby the employer agreed to build the said hundred and thirty five houses using its own labour force. The employees of the employer, including the fifth named Defendant, were all members of the Building and Allied Trades Union (hereinafter called "the Union") and at some time in early August 2001 the employer dismissed the fifth named Defendant, which dismissal gave rise to a dispute between the Union and its members and the employer. In furtherance of this dispute the Union and its members, including the second, third, fourth and fifth named Defendants, commenced to picket the site. Proceedings were taken by the employer against the Union and certain of its employees to restrain the picketing, and by order of my colleague O'Donovan J. made 26th September, 2001 an Injunction was granted restraining the Defendants in those proceedings from inciting, processing, assisting, encouraging or orgainising members of the Union or others to congregate or assemble at or near the entrance to the site otherwise than for the purpose of peacefully obtaining of communicating information or peacefully persuading any person to work or abstain from working and otherwise than in numbers not exceeding six. It should be noted that the Order specifically referred to "The Plaintiffs premises at Westbrook, The Naul Road, Balbriggan", that is, the employers" premises. The pickets continued, and there is no suggestion that they did not comply with the terms of the Order of O'Donovan J.

4 There appears to have been some communication between the Union and the Construction Industry Federation on behalf of the employer, but the dispute still remains unresolved.

5 By letter dated 23rd October, 2001 the Plaintiff wrote to the employer stating that it was imperative that the site should reopen in full production by 31st October, and when it became clear this was not going to happen, the Plaintiff wrote again to the employer on 26th October calling on it to vacate the site on 30th October and remove all its plant and equipment, and that the sub-contract was thereby terminated. Following this letter, the employer apparently removed all its plant and equipment other than a fork lift truck, which was left on the site, and which was subsequently used by the Plaintiff. After 30th October, although the employer had vacated the site, two Directors of the employer, one of whom was a Quantity Surveyor, attended from time to time at the site to measure the amount of work already carried out by the employer, for which it was agreed the employer would be paid. These attendances continued up to the 22nd November when agreement was reached on a final account between the Plaintiff and the employer, and there will...