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Supreme Court overturns industrial action injunction

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 judgment found the key legislation that governs industrial relations provides an “absolute bar” to courts granting injunctions restraining industrial action, where the correct legal procedures have been followed.

The decision came in proceedings, initially brought before the High Court last year, where HA O’Neill Limited secured an injunction restraining Unite 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 had been in dispute over a demand for the restoration of a travel allowance of one hours’ pay that had previously been given to employees.

HA O’Neill, in seeking the injunction, claimed the industrial action, which included the placing of pickets at sites where it conducts its business, was unlawful and argued that a valid trade dispute did not exist between it and the union.

The company – part of the Jones Engineering Group – also claimed that the industrial action ballot conducted by Unite had breached the 1990 Industrial Relations Act.

It further said 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, which took place on 10 March 2023.

The union, which opposed the application, appealed the granting of the injunction to the Supreme Court which agreed to hear the case directly.

The five judges unanimously ruled in favour of the union’s appeal.

The injunction granted by the High Court had previously been discharged, and noted that the particular SEO had been quashed by the courts in separate proceedings.

Judges refer to constitutional protections for workers

In his decision, Chief Justice Mr Justice Donal O’Donnell 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”.

The section, Mr Justice O’Donnell added, should not be interested narrowly or restrictively as this would “defeat the purpose” of legislation to protect unions and their members.

He said that, in this case, Unite had established that industrial action was being pursued by a registered union, the outcome of the ballot favoured taking action, and that no less than one week’s notice was given to the employer.

The union had also established a fair case that it may have need to take further action.

In these circumstances the junction should not have been granted, the chief justice said.

He also noted that 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 Gerard Hogan said the 1990 act gives the Oireachtas the right to regulate trade union activity under Article 40.6.1 of the constitution.

The courts he said “should not readily circumvent or frustrate this right”.

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 judgement, 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.

The assessment does not need to be exhaustive, but it does require more than a passing glance at whether the case is stateable.

He said: “Were the position otherwise, as all of the decisions in the area show, a plaintiff employer who establishes a claim in law that is neither frivolous nor vexatious, is far along to obtaining an order that constrains the exercise by trade unions and workers of significant constitutional rights.”

The matter will return before the court later this month for final orders.

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