The Gazette 1980

GAZETTE

DECEMBER1980

TRADE DISPUTES ACT 1906 — 'Employment or non-employment'

by Anthony Kerr, B.A. (Mod.), LL.M., Assistant Lecturer in Law, U.C.D.

It is well known that the extent to which employees may picket is governed by the Trade Disputes Act, 1906 ("the 1906 Act") and the meaning given to the 'golden formula' contained therein; that such industrial action, which would otherwise be tortious, will not be actionable when it is taken 'in contemplation or furtherance of a trade dispute'. 'Trade dispute' is defined in section 5(3) of the 1906 Act as 'any dispute between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment, or the terms of the employment, or with the conditions of labour of any person'. It is proposed in this article to focus on recent decisions affecting the words 'employment or non-employment'. At the outset it is important, in order to avoid confusion, to emphasise that in this discussion two issues arise which must be kept separate. The first of these is the meaning of 'employment or non-employment', the second is the meaning to be given to the word 'workmen'. Section 5(3) of the 1906 Act goes on to provide that the expression 'workmen' means 'all persons employed in trade or industry'. 1 The word 'employed' does not signify that the dispute must be between persons who are actually in employment at the time of the dispute. As Meredith, J. said in 1937 in Ferguson v. O'Gorman 2 ; 'A workman does not cease to be a workman because he has been dismissed and is out of employment'. Such a person is still to be regarded as 'employed in trade or industry' and the employer cannot argue that there is no dispute between employer and workmen. It follows from this that a dispute between an employee and an employer over dismissal and a claim for compensation and/or reinstatement would be a valid trade dispute, firstly, because it is between an employer and a workman, and secondly, because it is connected with employment or non-employment. It does not matter if the dismissal was perfectly lawful, fair or for reasons of redundancy. The Supreme Court has confirmed in Gouldings Ltd. v Bolger* that the fact that picketers have been validly dismissed does not take them outside the statutory immunity. The lawful dismissal of a workman can be the subject of a trade dispute 4 and it was emphasised that the decision of Overend, J. to the contrary in Doran v. Lennon 5 was erroneous. Counsel for the employer in Gouldings case argued that as the Redundancy Payments Acts 1960-1971 recognised that employers might be compelled to dismiss employees as a result of economic pressures those Acts must be taken as having impliedly amended the 1906 Act so as to withdraw from the protection of the 1906 Act employees entitled to redundancy payments under those Acts. The Supreme Court did not accept this argument. Kenny, J. held that the statutory entitlement to redundancy pay was a minimum which the employer had

to pay and that employees were quite entitled to demand a sum greater than that and to take industrial action (which would be protected under the 1906 Act) if the claim were refused. 6 This has been subsequently made abundantly clear by McWilliam, J. in Cleary v. Coffey 1 where the dispute was over the payment of 'a disturbance claim bonus' in addition to the statutory redundancy entitle- ment, as was claimed to be customary in the licensed trade. Mc William, J. held that this was a trade dispute within the meaning of the 1906 Act and that it did not cease to be one merely because the claim appeared to be unreasonable. It is surprising that this point is still being argued by employers since the Supreme Court has clearly indicated that a trade dispute is not confined to disputes over legal rights. As Lavery, J. put it in 1955, in Quigley v. Beirne; 8 'The Trade Disputes Act, 1906, is designed to permit within limits, certain actions to secure recognition of extra-legal claims of a particular nature and to bring pressure to bear on an employer to observe certain principles and standards which the law does not impose. Trade disputes may involve matters of legal right, but ordinarily they are concerned with other matters'. It is clear, therefore, that dismissal is included within the expression 'employment of non-employment'; but non-employment is a much wider concept than dismissal and must necessarily cover other matters. In McHenry v. Carey 9 Hamilton, J. held that the refusal to hire a person could form the basis of a trade dispute within the statutory definition. In his opinion there could be no logical distinction between the case of a dismissed employee and that of a person seeking initial employment or a person who had been for a period out of employment. This latter decision has been recently reconsidered by the High Court in J. Bradbury Ltd. v. Diffy 10 in which McWilliam J. accepted the McHenry Brothers decision as being correct on its facts, but said there had to be 'some restriction on the universality of the application of the term 'non-employment'. He gave two examples of 'non- employment disputes' which would not be valid trade disputes. The first example was where an employer, starting a business, advertised for ten employee and received fifty applications. He could not accept that the forty unsuccessful applications were entitled to take industrial action solely because they had not been given a job. The second example was the case of an employee who had voluntarily left employment and his job was then filled. If the employee subsequently changed his mind and asked for his job back it could not be said that he was entitled to take industrial action because his former 191 The concept of Non-Employment