The Gazette 1983

GAZETTE

JULY/AUGUST 1983

Trade Disputes (Amendment) Act 1982 — "Definition of Workmen"

By Gabriel Daly B.C.L.

P ractitioners are aware that the concept of "Trade Dispute" is crucial in Labour Law. Those engaged in industrial action will to a certain extent be protected from tortious jiability where they act "in contemplation or furtherance of a trade dispute". This "Golden Formula", as. it is known was first introduced by the Conspiracy and Protection of Property Act 1875 but "Trade Dispute" was not defined until the Trade Disputes Act 1906. 1906 Act There is no positive right to strike in Irish Law. There are some defences and immunities provided by the Trade Disputes Act 1906 which can be relied upon by workers and their representatives if employers take action against them in the Courts as a result of a strike. Thus, section 1 of the 1906 Act provides that "an act done in pursuance of an agreement or combination by two or more persons shall, if done in contemplation or furtherance of a trade dispute, not be actionable unless the act, if done, without any such agreement or combination, would be actionable". This Section, in effect, overrules the decision of the House of Lords in Quinn V. Leather^ where it was held that if two or more persons combined without justification to injure another they would be liable in tort. Section 2 allows for peaceful picketing as follows - "It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union or of an individual employer or firm in contemplation or furtherance of a trade dispute, to attend at or near a house or place where a person resides or works or carries on business or happens to be, if they so attend merely for the purpose of peacefully obtaining or communicating information, or of peacefully persuading any person to work or abstain from working". Section 3 of the 1906 Act provides that "an act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that it induces some other person to break a contract of employment; or is 'an interference with the trade, business or employment of some other person' " The above Sections of the 1906 Act deal with the liability of individuals engaging in industrial action. However, s.4 of the 1906 Act relieves trade unions, as such, from liability in tort altogether whether acting in contemplation or furtherance of a Trade Dispute or not. Section 4 effectively overrules the decision of the House of Lords in Taff Vale Railway

Company V. Amalgamated Society of Railway Servants 2 where the plaintiff Company in 1901 successfully sued their employees' trade union the A.S.R.S. for £23,000.00 damages for wrongful picketing and £12,000.00 in legal costs. Section 5 (3) of the 1906 Act defines Trade Dispute 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. "Section 5 (3) of the 1906 Act goes on to define "workmen" as "all persons employed in trade or industry". Thus it can be seen that the definition of "workmen" formed the basis of all the protections and immunities contained in the Trade Disputes Act 1906. The Trade Disputes (Amendment) Act 1982 3 amends the definition of "workmen" contained in the 1906 Act and it is the purpose of this article to examine what changes the new provisions will make. Interpretation o f 4 'workmen" under s.5 of the 1906 Act The Irish judiciary have, in the past, given a restrictive interpretation to the definition of "workmen" in the 1906 Act in a different manner to their judicial brethren in the U.K. In an obiter dictum in National Association of Local Government Officers V. Bolton Corporation* Lord Wright placed a wide interpretation on the words "trade or industry". His Lordship stated, "Indeed, 'trade' is not only, in the etymological or dictionary sense, but in legal usuage, a term of the widest scope. It is connected originally with the word "tread" and indicates a way of life or occupation. In ordinary usage it may mean the occupation of a small shopkeeper equally with that of a commercial magnate. It may also mean a skilled craft. It is true that it is often used in contrast with a profession. A professional worker would not ordinarily be called a tradesman, but the word "trade" is used in the widest application in the appellation "Trade unions". Professions have their trade unions". Employer activities In deciding whether or not a person is engaged "in trade or industry", the Courts in Ireland have looked to the employer's activities rather than to the actual work done by the individual employee. Thus in B & /. Steampacket Co. Ltd. V. Brannigan *> the Carlingford Lough Commissioners were held not to be involved in "Trade or Industry". Another example of this restrictive 149