Supreme Court Delivers Generous Verdict To Trade Unions

HA O’Neil Limited (Plaintiff) v Unite the Union and others (Defendant)

Background: The nature of the Plaintiff’s business in the construction industry required Employees to attend at construction sites to carry out their work. The question of payment for travel time to and from these sites was both the subject of contention within the construction industry and the basis on which the Defendants began industrial action.

Following failed efforts to resolve the dispute through the assistance of both the WRC and the Labour Court, Unite wrote to the Plaintiff company giving notice that following a secret ballot, it would be taking industrial action to secure the reinstatement of pay for ‘travel time’. The first strike action began on 10 March 2023.

The Plaintiff argued that the industrial action was unlawful and applied for an injunction restraining the Defendants from picketing and seeking specific performance of the Employees’ employment contracts.

The Plaintiff secured an interlocutory injunction in the High Court restraining any industrial action and this decision was appealed to the Supreme Court.

While the injunction was set aside on other technical grounds, the Supreme Court found that the case raised important issues concerning the law relating to the grant of injunctions in respect of industrial disputes.

Decision: The Supreme Court examined section 19 of the Industrial Relations Act 1990 (1990 Act) in detail and found that s.19 on its face acts as an absolute bar to the grant of an interlocutory injunction where the limited conditions set out in the section can be satisfied. It follows therefore that before any injunction can be granted it must necessarily be established that s.19 does not apply.

The Supreme Court found that s.19 operates in a blunt way. In the case of s. 19(1), this provision precludes any grant of an interim injunction in circumstances where a ballot has been held in accordance with the rules of the union, the outcome of which favours a strike, and not less than one week’s notice has been given. In such circumstances, no matter what arguments might be made as to the strength of the Employer’s case, the urgency of the matter, or the damage which might be suffered, an interim injunction cannot be granted.

In the case of s. 19(2), the possibility of an interlocutory injunction is not similarly excluded, but if the ballot has been held in accordance with the law, and it favours the holding of industrial action, and notice of not less than one week has been given, then an injunction cannot be granted where the Respondents establish a fair case that they were acting in contemplation or furtherance of a trade dispute.

Having examined the constitutional context around the rights to form associations and unions, CJ O’Donnell concluded that ‘it would be appropriate to read the provisions of the Act generously to give full effect to the rights sought to be protected.’

Impact on Industrial Relations: This judgment means that there are very limited circumstances in which Employers could argue that they are entitled to seek interlocutory relief against lawful industrial action.

Assuming that industrial action is being pursued by a registered trade union, then only four things must be established under s. 19(2);

• that a secret ballot has been held in accordance with the rules of the trade union as provided for in s. 14 of the 1990 Act;
• that the outcome of the ballot favoured a strike or other industrial action;
• that not less than one week’s notice has been given to the Employer concerned of the intention to engage in the strike; and
• that the Respondent to the application has established a fair case that they were acting in contemplation or furtherance of a trade dispute.

The Supreme Court concluded that s.19 “…reverses the balance set by the pre-existing law. Where it was once easy to obtain an interlocutory injunction, it should now be extremely difficult to, even where an Employer may have an arguable, indeed strong case, that the industrial action is unlawful.”