The Gazette 1980

GAZETTE

JULY AUGUST 1980

activity or withdrawal of labour. For the purposes of the Act, it is defined in Section 1 to mean 'the cessation of work by any number or body of employees acting in combination or a concerted refusal or a refusal under a common understanding of any number of employees to continue to work for an employer, in consequence of a dispute, done as a means of compelling the employer or any employee or body of employees, or to aid other employees in compelling their employer or any employee or body of employees to accept or not to accept terms or conditions of or affecting employment' 16 If strike notice is expressed as notice to terminate the contract and is of sufficient length it will bring the contract to an end. A grave disadvantage of giving strike notice in this form is that the worker will not be protected by the Unfair Dismissals Act. The Act is inapplicable where the employee has effectively resigned (unless he is able to show that the employer has broken the contract and his resignation is in response to this breach). A strike starts from the moment an employee makes his intentions clear to his employer. 17 It is worth noting that the statutory protection for strikers in section 5 has rendered academic for the purposes of the Act the lengthy arguments about whether the effect of strike notice at common law is to terminate the contract of employment or 'merely to suspend the contract' as suggested by Lord Denning in Morgan v. Fry 119681 2 Q.B. 710, and supported by Walsh J. and the majority of the Irish Supreme Court in 1973 in Becton Dickinson Ltd. v. Lee 119731 I.R. 1,35. Before Morgan v. Fry, see Devlin and Donovan L. JJ. in Rookes v. Barnard 119631 1 Q.B. 623, 682-83; 119641 A.C. 1204(Houseof Lords); Denning L.J. in Stratford v. Lindlev 119651 A.C. 307, 322. In Britain, the doctrine of suspension has now been severely doubted and a more reasonable approach adopted by the EAT in Simmons v. Hoover Ltd. 119771 I.C.R. 61. 18 'Industrial action' is defined in Section 1 to mean 'lawful action taken by any number or body of employees acting in combination or under a common understanding, in consequence of a dispute, as a means of compelling their employers or any employee or body of employees, or to aid other employees in compelling their employer or an employee or body of employees, to accept or not to accept terms or conditions of or affecting employment'. 'Industrial action' is any lawful action short of cessation of work or refusal to work. It is impossible to explain why 'lawfulness' should be required for industrial action and not for strikes. The sort of industrial action that can be described as 'lawful' is very limited. In Britain, industrial action is not defined. It is generally held open to complainants to argue that 'lawful action' by employees is not encompassed by s. 62 of the EPCA. There industrial action applies to action short of a strike, such as picketing within the works or a collective refusal to obey instructions to work on a particular machine: Thompson v. Eaton Ltd. 119761 3 All E.R. 383; 119761 ICR 336. It also applies to an unlawful go-slow, work to rule, or ban on overtime: Derving v. Kilvington 119731 8 ICR 266. The Industrial Relations Act, 1971,

defined 'irregular industrial action short of a strike' as action involving a breach of contract; neither the phrase nor its definition were retained in TURLA, 1974. The fact that TURLA did not incorporate a similar definition for 'other industrial action' does not necessarily mean, according to some writers, that a similar distinction between lawful and unlawful action cannot be read into TURLA. The earlier definition was omitted; it was not replaced by a different definition. Until Parliament provides a positive definition of 'other industrial action', rejecting the former definition, it has been argued that complainants may contend that 'lawful action' by employees is not encompassed by S.62. 19 Lawful industrial action In Ireland several different branches of the law (tort, criminal law, contract and constitutional law) may be involved in assessing lawfulness. Some forms of industrial action constitute criminal offences under statute or at common law. An example of the former is the Conspiracy and Protection of Property Act, 1875, which lists a number of prohibited actions. Section 7 provides, inter alia, that it shall be a criminal offence for any person in relation to another 'to watch or beset the house or other place where such other person resides, or works, or carries on business, or happens to be, or the approach to such house or place'. 20 It is likewise a crime for those working in gas, water (Conspiracy and Protection of Property Act, 1875, S.3) and electricity (Electricity (Supply) Act, 1927, s. 110) undertakings to break their contract of employment by, e.g., taking strike action without giving notice; it is a crime for any worker to break his contract of employment if this would endanger human life or cause serious bodily injury (Conspiracy and Protection of Property Act, 1875, S.5). In more modern times the Offences against the State Act, 1939, and the Prohibition of Forcible Entry and Occupation Act, 1971, in addition to other statutes, have created offences which apply to trade disputes. In tort law, the Trade Disputes Act, 1906, in so far as it is not inconsistent with the Constitution, renders certain forms of industrial action 'lawful' (e.g., in relation to the civil law: inducing breaches of contracts of employment, civil conspiracy and picketing). 21 Certain forms of industrial action lie outside the scope of the Act, or are unprotected due to restrictive judicial interpretation, or are unlawful in virtue of the means used, e.g., where picketing amounts to intimidation; 22 or the language used is associated with social ostracism and physical violence; 21 or picketing involves excessive numbers of workers. 24 Contract law tends towards an excessive technicality. Depending upon the circumstances involved and the terms (express or implied) in the relevant contracts of employment, the go-slow, 25 work to rule, 26 overtime ban, 27 occupation or sit-in 28 may all be viewed as unlawful. Moreover, most collective agreements in Ireland have a peace obligation of one kind or another. This may refer either to the necessity to process a claim or a grievance in a particular way through the procedure or forbid recourse to strike or industrial action until there has been reference to the body or bodies that are entitled to conciliate or arbitrate in the matter. The circumstances in which these may be incorporated into the contract of —Continued on page 123 121