The Gazette 1983

GAZETTE

JULY/AUGUST 1983

approach is the earlier case of Smith V. Beirne 6 which concerned a workingmen's club. It was held by Dixon J. in the High Court, that the club was not engaged in trade or industry as it was a "non profit making" concern. The club not being engaged in trade or industry, it followed that its employees could not be so engaged and were, therefore, not "workmen" within the meaning of the Trade Disputes Act 1906; the dispute between the club and its employees was therefore not a protected "trade dispute" and any picketing of the club was unlawful. Dixon J. stated that "... to concede the claim of a Trade Union to regulate the relations of employers and employees, not engaged in any branch of trade or industry solely because the employees happened to be doing work of a similar character to that of workers in a particular branch of trade and industry would give a very wide and extended scope to the 1906 Act and give a Trade Union a broader field of legalised intervention and activity than could reasonably be supposed to have been contemplated by the 1906 Act". 7 A recent view In more recent times, McWilliam J. 8 granted a temporary injunction prohibiting the picketing of University College Galway. Negotiations had been going on between the I.T.G. W.U. and officers on behalf of the college with regard to the conditions of employment of about 80 employees. The Secretary of the U.C.G. branch of the union informed the college authorities that he and his fellow members would place pickets on the college. The injunction was granted against the secretary of the U.C.G. branch of the Union and against his servants or agents. Counsel for U.C.G. submitted that the college did not carry on a trade or business and, consequently, any picketing of its premises by its employees was not protected by the Trade Disputes Act 1906. This submission proved to be successful. Excluded Employees It can be seen from the above decisions that "trade or industry" according to the Irish Courts implies a "trade or industry in the sense of profit making enterprise and no other. The range of employees excluded from the protection of the Trade Disputes Act 1906 by this restrictive interpretation of "workmen" was very considerable. Those engaged in nursing, teaching (including university staff), civil servants, local authority workers, domestic employees and employees engaged in private employment of a non profit making nature were not protected by the Trade Disputes Act 1906. Any picketing by such persons, could, on the basis of the decisions quoted above, be restrained by injunction and the employer would be prohibited by the 1906 Act from seeking damages or compensation for wrongful action. Legislative change This narrow construction of "trade or industry" by the Irish Courts was noted by the Royal Commission on Trade Unions and Employers' Associations chaired by Lord Donovan. 9 The Donovan Commission recommended that the definition of "workmen" be amended as follows: "The expression 'employee' means any person who has entered into or works under (or in the case of a 150

contract which has been terminated worked under) a contract with an employer, whether the contract be by way of manual labour, clerical work or otherwise, be expressed or implied, oral or in writing; and whether it be a contract of service, of apprenticeship or a contract personally to execute any work or labour". In this country the Trade Union Bill of 1966 intended to delete the words "in trade or industry" from the definition of "workmen" contained in s.5 (3) of the Trade Disputes Act 1906. This measure was never carried through, and the Bill is now defunct. However, clause 13 of the National Understanding (1980) provided a commitment by the Government to introduce such a change by legislation. The provisions of section I of the Trade Disputes (Amendment) Act 1982 would appear to fulfil that commitment. "Section 5 of the Trade Disputes Act 1906 is hereby amended by the substitution of the following definition for that of 'workmen' in subsection (3): "and the expression 'workmen' means all persons employed, whether or not in the employment of the employer with whom a trade dispute arises, but does not include a member of the Defence Forces or of the Garda Siochana". The Act deletes the words "in trade or industry" from the definition of "workmen" as defined in s.5 (3) of the Trade Disputes Act 1906 and by substituting in their place "all persons employed", now extends, to all members of authorised trade unions holding a negotiation licence! 0 the protection of the 1906 Act. Section 2 of the 1982 Act merely provides for its short title and for its collective citation as the Trade Union Acts 1871 to 1982. These are the only two sections in the 1982 Act. Desirability of the change The amendment to the definition of "workmen" contained in the 1982 Act is to be welcomed in so far as it clarifies the judicial uncertainty which surrounded the question of who was or was not a "workman" within the meaning of the Trade Disputes Act 1906 and brings within the definition of "workmen" many employees who, previously would have been denied the rights and immunities accruing to "workmen" under the Trade Disputes Act 1906. It would be fair to say that the interpretations given to the Trade Disputes Act 1906 have led to results of truly labyrinthine complexity. 11 The 1906 Act has been looked upon with disfavour by the judiciary in Ireland and this is evident from the following judicial observations: Kenny, J. 12 has referred to the 1906 Act as having been introduced "to redeem an election pledge of the Liberal party to overrule the decision of the House of Lords in Taff Vale and there are many indications in it that it was hurriedly drafted and that its wording did not receive adequate consideration". Parke, J. 13 stated in the same case "the Trade Disputes Act 1906 was a child of political expediency, hastily conceived and prematurely delivered. It has now survived more than the allotted span of life with all its inbred imperfections still uncorrected". The Trade Disputes (Amendment) Act 1982 while it 1982 Act Section one of the Act provides as Follows:—