The Gazette 1980

DECEMBER 1980

GAZETTE

employer was unable to re-employ him because the job was no longer available. Subsequently Hamilton, J. in Stephen Geraghty and Co. Ltd. v Whelan 11 granted an injunction restraining the defendant employees from picketing the plaintiff employer's premises. The company owned a hardware store and a granary in Carnew, Co. Wicklow. The defendants were employed only in the hardware store which closed at 6 p.m. and they asked the employer if they could do overtime work in the granary. The employer refused, saying that overtime granary work was for granary workers only and the defendant employees had picketed the premises. It is as difficult to reconcile the Stephen Geraghty decision with the statutory definition as it is with the earlier case in 1924 of Barton v Harten. 12 In Barton's case a publican's assistant was arrested by Government forces in October 1922 and was not released until September 1923. The employer had kept the job open until about January 1923 when a full-time replacement was hired. When the assistant was released from custody he asked for his job back and the publican refused saying there was no room. I.N.U.V.G.A.T.A 13 called the publican's employees out on strike and organised pickets. The High Court (Malony C. J.) held that there was no trade dispute, saying: 'there is no dispute at all, but only an attempt on the part of an organisation to compel an employer to give employment to one who had been out of employment for a long time and whose position has been filled in the ordinary course'. In J. Bradbury Ltd. v. Duffy 14 McWilliam J. said that Barton's case indicated that a clearly discernible connection with non- employment was not always sufficient to justify industrial action and that there had to be 'something more'. However, McWilliam J. indicated no priniple as to how this 'something more' should be ascertained. In this respect the judgment of O'Higgins C. J. in Gouldings Ltd. v Bolger 15 is very pertinent, since in it he expresses a great deal of sympathy for the argument that for a trade dispute to exist there had to be 'some reality' in the question of possible employment, if the dispute was over reinstate- ment or refusal to hire. This view of O'Higgins C. J. appears to be extremely close to those of Lord Denning who has in both The Camilla M 16 and PBDS Ltd. v Filkins 17 expressed the view that if employees or union officials make demands that cannot possibly be met there is no trade dispute. He said that if demands were made that were "wholly extortionate or utterly unreasonable or quite impossible to fulfil" they were outside the statutory immunity. However the Camilla M has been expressly 18 overruled by the House of Lords in NWL Ltd. v Woods. 19 Lord Diplock there said that the fact that a demand appeared to the court to be unreasonable because compliance with it was "so difficult as to be commercially impracticable or would bankrupt the employer or drive him out of business" did not prevent it from being a dispute connected with "terms and conditions of employment". He concluded that the immunity was not forefeited either by the employer or the employee being "pigheaded or stubborn". Nevertheless the Irish courts appear to have introduced Demands outside Statutory Immunity

into the statutory text of the 1906 Act Lord Denning's "reasonable possibility" argument. This would explain not only the recent decisions but also the earlier decisions of Doran v Lennon 20 and Corry v Beirne 2i . In Doran's case industrial action was taken, inter alia, for an increase in pay which was forbidden by statute. In Corry's case the action was designed to secure the reinstatement of an employee who could not lawfully be employed because he was under age. Injunctions were granted in both cases. Beyond this, however, there appears to be no justification for reading into the 1906 Act limitations which the High Court considers desirable. As the House of Lords have recently made abundantly clear in NWL Ltd. v Wood, no limitation on the ordinary meaning of the words of the 1906 Act is permissible and Lord Scarman said: "None is needed; none was intended". Judicial decisions cannot impose limitations on the language used by the legislature, where it is clear from the words, context and policy of the legislation that no limitation was intended. The legislative policy of the 1906 Act was to exclude trade disputes from judicial review. There is nothing in the 1906 Act entitling the courts to substitute their opinion on the wisdom or merits of industrial action for the opinion held by those instigating or participating in the industrial action complained of. All the 1906 Act requires the courts to do is to ascertain whether the dispute is connected with the statutory formula. It is worth recalling the words of Peterson J., 23 accepted by both Maguire C. J. 24 and Hamilton J. 25 : "In all these cases it is of the utmost importance that the court should keep in mind the fact that it is

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