The Supreme Court has ruled that a lower court was wrong to grant an injunction restraining members of Unite the Union from taking industrial action. The court found that the key legislation that governs industrial relations in Ireland provides an “absolute bar” to courts granting injunctions restraining industrial action where the correct legal procedures have been followed.
The decision came in proceedings, initiated in the High Court last year, in which H A O’Neill Limited, which is part of the Jones Engineering Group, secured an injunction restraining the union and three of its members from engaging in any industrial action against it on foot of a ballot conducted by the union. The injunction was to remain in place pending the full hearing of the dispute.
The company, which provides mechanical and engineering services for the construction sector, and the union were in dispute over a demand for the restoration of a travel allowance of one hour’s pay that had previously been paid to employees. In seeking the injunction the firm claimed the industrial action, which included the placing of pickets at sites where it conducts its business, was unlawful and argued a valid trade dispute did not exist between it and the union.
It also claimed Unite’s ballot of its members employed at H A O’Neil breached the 1990 Industrial Relations Act. It further claimed that the parties were bound by the terms of a sectoral employment order (SEO) which contained a dispute resolution and no-strike clauses. No industrial action could be taken until the dispute resolution clause had been exhausted, it alleged.
The injunction was granted by Ms Justice Miriam O’Regan following the first strike on March 10th, 2023.
The union, represented by Eoin McCullough SC, opposed the injunction application before the High Court and appealed the order to the Supreme Court.
In its decision on Wednesday a five-judge Supreme Court unanimously allowed the union’s appeal.
The judges noted the injunction was previously discharged and the particular SEO was quashed by the courts in separate proceedings.
In his judgment the Chief Justice said the relevant section of the 1990 Act provides an “absolute bar” to the granting of an injunction restraining the industrial action where the conditions of the relevant section are met. Mr Justice O’Donnell said the section should not be interpreted narrowly or restrictively as this would “defeat the purpose” of legislation to protect unions and their members.
He added that here the union established that industrial action was being pursued by a registered union, that the outcome of the ballot favoured taking action, and that no less than a week’s notice was given to the employer. The union had also established a fair case that it may need to take further action. In these circumstances, the injunction should not have been granted, the Chief Justice said.
He also noted the freedom to form associations and unions is guaranteed by Article 40.6.1 of the Constitution and the entitlement to take part in industrial action must be seen in that context. An important aspect of any right is the choice of when and where to exercise it, he added.
In his concurring decision Mr Justice Hogan said that the 1990 Act gives the Oireachtas the right to regulate trade union activity under Article 40.6.1 of the Constitution. The courts “should not readily circumvent or frustrate this right”, he said.
He added that the right to take industrial action must be safeguarded so that the constitutional right to associate and form a trade union is given real meaning. Insufficient weight has been given to this consideration in the case law to date, the judge said.
In his concurring judgment Mr Justice Brian Murray said that when a court is considering an application for an injunction in a case of this kind a preliminary assessment of the claims made is required. This assessment does not need to be exhaustive, but it does require more than a passing glance at whether the case is statable.
The matter will return before the court later this month for final orders.
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