Given the recent, well publicised escalation of industrial action by public sector unions, we thought it timely to examine the law governing industrial action in Ireland.

The Industrial Relations Act 1990 made new provisions in relation to trade disputes and established an institutional framework for the conduct of industrial relations.

Immunity from prosecution is afforded to a person or persons who are involved in the organisation of industrial action provided such action is in contemplation or furtherance of a trade dispute and that certain procedures have been followed. A "trade dispute" is defined as any dispute or difference between employers and workers or between workers and workers connected with the employment or non-employment or the terms of the employment or with the conditions of employment of any person.

Industrial action may include a work to rule, an overtime ban, a strike, a picket or
a sit-in.

Picketing is lawful if it is carried out:

• in contemplation or furtherance of a trade dispute;
• for the purpose of peacefully obtaining or communicating information;
• or for the purpose of peacefully persuading any person to work or abstain
  from working.

Section 11(1) of the Industrial Relations Act, 1990 deals with primary picketing and provides that:

It shall be lawful for one or more persons, acting on their own behalf or on behalf of the trade union in contemplation of a trade dispute to attend at, or where that is not practicable at the approaches to a place where their employer works or carries on business.

Only those employees who are members of an authorised trade union are entitled to picket their employer and avail of immunity from prosecution. Non-union members are not entitled to the immunity laid down in Section 11.

Employees are confined to picketing at their place of work (unless they fall within the secondary picketing exemption which is referred to below). If picketers enter the property of the place where they picket they are no longer protected by Section 11 and may be held liable for trespass or nuisance. It should also be noted that civil immunity is confined to peaceful picketing. Accordingly, excessive numbers of persons picketing may be deemed to be intimidating and may make a picket non-peaceful therefore taking it outside the protection afforded by Section 11.

The object of the picket may only be to communicate information or persuade persons not to attend work. Pickets which are not based on these two objectives fall outside Section 11. By way of example, pickets which have as their objective the persuasion of customers not to do business with the targeted business are not covered by Section 11 as here the objective is to persuade persons to do something other than not attend for work. Similarly, persuading workers of another business not to complete deliveries or not to collect products is not protected as again, the motivation is to persuade others to do something other than the only legitimate purpose for which persuasion may be used, i.e. persuasion not to attend for work.

Secondary picketing is the picketing of an employer other than the employer involved in the dispute.

Section 11(2) of the Industrial Relations Act, 1990 severely limits the right to engage in secondary picketing allowing it only if the picketers:

believe at the commencement of their attendance and throughout the continuance of their attendance that that employer has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action.

The secondary picketers do not have to prove that the employer they are picketing actually assisted their employer. It suffices if they have a reasonable belief that this is the case, that they had that belief when they commenced picketing and that they continue to have that belief. What they must believe is that the employer they are picketing directly assisted their own employer for the purpose of frustrating the industrial action against their employer.

An employer who is subjected to secondary picketing and who is not deliberately frustrating a trade dispute should immediately inform the picketers and their trade union of that fact. This may persuade them to lift the picket. If it does not persuade them to lift the picket it will assist the employer in seeking an injunction to restrain the picket.

Section 14 of the Industrial Relations Act 1990 prescribes certain requirements as to the holding of secret ballots and the balloting provisions contained therein are of particular importance to secondary picketing. Not only will the issue as to whether the members should picket be balloted on by the union members in the primary dispute, the union members in the secondary employment will also have to ballot.

Where industrial action is taken contrary to the results of a secret ballot there is no immunity from liability nor do those involved enjoy the right of peaceful picketing afforded by Section 11.

Failure to hold a secret ballot as prescribed makes it much easier for an employer affected to obtain a pre-trial injunction restraining the industrial action. Conversely, compliance with the statutory requirements as to secret ballots gives those engaging in a strike or other industrial action the entitlement to resist the granting of an ex-parte injunction on behalf of an employer as well as an interlocutory injunction.

For further information please contact Jennifer Clarke.

March 2010.