The Gazette 1991

GAZETTE

JULY/AUGUST 1991

union law at a seminar on the Industrial Relations Act, 1990 organised by the Irish Society for Labour Law on July 13, 1991. Law- brief deals here with aspects of trade dispute law which were considered by the Minister. Until the passing of the 1990 Act, the statute law in relation to striking and picketing was primarily contained in the five sections of the Trade Disputes Act, 1906, with a number of further provisions in the Trade Union Act, 1941 and the Trade Disputes (Amendment) Act, 1982. The Minister stated correctly that the law in this area was not as simple as a reading of those Acts might suggest. Since 1906 a considerable volume of case law had arisen from the interpretation by the Courts of the provisions of the Trade Disputes Acts. As a result, the law has become extraordinarily complex and its precise limits were vague and confusing. The usefulness of the statute law in providing a guide to conduct had diminished and it was increasingly necessary to look to case law. The approach adopted in the area of trade dispute law was to repeal the Trade Disputes Acts of 1906 and 1982 and to re-introduce the main provisions of these Acts with amendments. An important by-product of this approach was to give the legislation a clear presumption of constitutionality. Legal actions to challenge the constitutionality of the 1906 Act had been threatened from time to time but were not proceeded with. The Minister outlined the main

features of the provisions relating to trade disputes: • The definition of trade dispute has been amended to ex- clude worker versus worker disputes. • The immunities no longer apply to disputes involving one worker where procedures have not been followed. • Picketing has been confined to an employer's place of busi- ness. • Secondary picketing is per- missible only in situations where workers have a reason- able belief that the second employer has acted in a way likely to frustrate a strike or other industrial action by directly assisting their employer. • An anomaly whereby organising a strike was protected by the immunities but threatening to organise or take part in a strike appeared not to be protected has been cleared up. • The immunity enjoyed by trade unions in respect of tortious acts now applies only in the case of acts committed in contemplation or furtherance of a trade dispute. • Unions are required to have a rule in their rule books with- in two years (i.e. by 18th July, 1992) providing for the hold- ing of secret ballots before engaging in or supporting a strike or other industrial action. • In trade dispute situations where a secret ballot has been

held and notice given, the granting of injunctions, particu- larly ex-parte injunctions, is restricted. Picketing The picketing provisions in the 1990 Act, sought, according to the Minister for Labour to strike a balance between the rights and interests of both sides. In the case of primary picketing the previous extremely broad definition, which permitted picketing "at or near a house or place where a person resides or works or carries on business or happens to be", has been amended to read "at, or where this is not practical, at the approaches to" a place where their employer carries on business. The intention was to ensure that picketing takes place at the employer's place of business. However, because of the position in relation to private property rights and the need to avoid trespass on private property, there may be circumstances where it will not be possible to picket directly at the employer's premises. The Minister gave the example of where a dispute arises a f f ec t i ng one employer in a shopping centre or industrial complex, it should be possible to secure agreement that the picket be placed at the in- dividual employer's business rather than at the entry to the complex. It was necessary, however, to provide a saver for situations where this turns out not to be practical or possible. Secondary Picketing As far as secondary picketing is

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