Supreme Court of Ireland Decisions

 AN CHÚIRT UACHTARACH

THE SUPREME COURT

S:AP:IE:2023:000046

[2024] IESC 8

 

O'Donnell C.J.

Woulfe J.

Hogan J.

Murray J.

Donnelly J.

 

 

Between/

H. A. O'NEIL LIMITED

Plaintiff/Respondent

-and-

UNITE THE UNION, PATRICK JAMES GOOLD, WILLIAM MANGAN AND DAMIAN JONES

 

Defendants/Appellants

 

Judgment of Mr. Justice O'Donnell, Chief Justice delivered on the 6^th day of March, 2024.

1.                  The first defendant and appellant in this appeal, Unite the Union ("the union") is a British/ Irish trade union which organises workers in, inter alia, the mechanical engineering industry. H. A. O'Neil, the plaintiff company and respondent to this appeal, is a mechanical engineering firm engaged in the construction industry. The second, third and fourth defendants are employees of the plaintiff and are members of the union and work at a number of construction sites where the company is employed as a sub-contractor.

2.                  On 28 February, 2023, the union having balloted its members employed by H. A. O'Neil wrote to the company giving notice of industrial action due to take place ten days later. That proposed action involved targeted strikes on a rolling basis. The first such strike action took place on 10 March, 2023, and it was clear that further targeted action was intended which at that stage involved further days of industrial action on dates to be determined, but was not at this stage an all-out indefinite strike.

3.                  These proceedings were commenced on 8 March, 2023, but it was not possible to have an application for an injunction listed for hearing before the first day of action on 10 March, 2023. The company brought an application therefore returnable for 21 March, 2023 seeking an interlocutory injunction restraining the defendants at any time or on any date on which such activities were threatened from picketing at certain identified premises, being large building sites at which the plaintiff company was providing services, and where the second, third and fourth defendants were otherwise employed to work; interfering with access to and egress from those certain identified premises; erecting placards or distributing leaflets or documents stating that there was a trade dispute between the plaintiff and its employees; inciting or instructing others to facilitate picketing of the identified premises; inducing breach of contract of employment of other employees of the plaintiff company. The plaintiff also sought orders of specific performance of the contracts of employment of the second, third and fourth named defendants, requiring them to work at the designated sites.

4.                  In an ex tempore judgment delivered on 23 March, 2023, the High Court (Unreported, O'Regan J.) granted an interlocutory injunction framed in the following terms:-

"AND IT IS ORDERED that the Defendants and each of them their servants or agents be restrained pending further order [from] engaging in any industrial action (actual or threatened ) against the Plaintiff on foot of the balloting conducted by the First Named Defendant that led to the institution of the within proceedings".

It seems that framed in this way the order effectively granted the reliefs sought in the notice of motion restraining picketing, leafleting, inducing breach of contract, and any strike itself but subject to the qualification that the order only captured any industrial action taken on foot of the ballot previously conducted by the union which, therefore, did not exclude the possibility of further procedures being followed, which could lead to industrial action and would not be restrained by the order as framed.

5.                  By a determination of 21 June, 2023 ([2023] IESCDET 86) leave to appeal directly to this Court was granted pursuant to Article 34.5.4° of the Constitution. The panel found that this case raises important issues in respect of the law relating to the grant of injunctions in respect of industrial disputes, and in particular, "the interplay between s. 19(2) of the 1990 Act and the general equitable jurisdiction to grant injunctive relief, and regarding the issue of the nature of the ballot required of members of the trade union to satisfy the statutory test".

Background to the Dispute

6.                  The nature of the plaintiff's business, and indeed the business of other similar firms providing mechanical and engineering services in the construction industry means that normally employees do not attend to carry out their work at the plaintiff's own premises, but rather are required to attend at building sites where the mechanical and engineering firm is employed as a sub-contractor on a construction project. As a matter of history, the question of payment for the travel time i.e., the time incurred by the employee in travelling from his or her home to the site, had been the subject of some contention in the construction industry. In 2011 an agreement ("the 2011 agreement") was reached between the Mechanical Engineering and Building Services Contractors Association ("MEBSCA") of the Construction Industry Federation representing the employers in the sector, and the trade unions in the sector, including the union in this case. The relevance of this agreement to these proceedings is that it provided that any entitlement to travel allowance for the first hour of travel would be incorporated into increased standard hourly rates of pay and therefore no separate payment would be made or allowed for.

7.                  A Sectoral Employment Order - the Sectoral Employment Order (Mechanical Engineering Building Services Contracting Sector) 2018, S.I. 2018/59 ("the SEO") - was subsequently made by the then Minister of State at the Department of Business, Enterprise and Innovation. SEOs are made pursuant to chapter 3 of the Industrial Relations (Amendment) Act, 2015 (the "2015 Act"). The 2015 Act was introduced in the aftermath of the decision of this Court in McGowan v. The Labour Court [2013] IESC 21, [2013] 3 I.R. 718 and the High Court in John Grace Fried Chicken v. The Labour Court [2011] IEHC 277, [2011] 3 IR 211 which decided that the provisions of the Industrial Relations Act, 1946 permitting the making of Employment Regulation Orders were invalid having regard to the Constitution.

8.                  The 2015 Act maintains the distinction between Registered Employment Agreements ("REAs") made by representative employers and unions in a sector and registered with the Labour Court, and a form of order made under a statutory procedure and applicable to a defined sector, although in this case no longer enforceable through the criminal law. REAs are agreements made between employers and unions which are sufficiently representative of the workers employed. REAs are registered with the Labour Court and thereafter have effect and cover employees essentially in relation to remuneration. Such agreements are essentially voluntary and based upon contract, under which employers agree that certain terms of remuneration will be applied to their employees present and future. Employment Regulation Orders under the Industrial Relations Act, 1946 and now SEOs under the 2015 Act deal with a situation where there is no agreement. Instead, submissions may be made by unions who are sufficiently representative of workers in a particular sector to the Labour Court for an investigation. A recommendation issues from the Labour Court which if adopted by the Minister and SEO made, takes effect within the sector by operation of law. While the REA has its basis in a voluntary agreement, the essence of an SEO is that once made it takes effect irrespective of the wishes of individual employers or employees and is to that extent compulsory. Under the 1946 Act this was ultimately enforceable by criminal law. Under the 2015 Act the principal effect of the making of an SEO is that contracts of employment are adapted to include rates of pay and pension specified in the SEO where better than those contained in the employment contract.

9.                  The procedure for the making of an SEO involves a submission of a request to the Labour Court, and an examination by that court and a recommendation to the Minister for Jobs, Enterprise and Innovation. Under s. 16(5) such a recommendation may provide for a limited range of matters: minimum hourly rate of basic pay; not more than two higher hourly rates of basic pay; minimum rates of basic pay for persons aged eighteen or under, or who are undergoing a course of study or training prescribed by regulations during work hours; minimum hourly rates of basic pay for apprentices; and pay in excess of basic pay in respect of shift work, piece work, over-time, unsocial hours of work, hours worked on a Sunday, or, travelling time (when working away from base). Such a recommendation can also extend to the requirements of a pension scheme and sick pay scheme. Finally, s. 16(6) provides that a "recommendation under this section shall include procedures that shall apply in relation to the resolution of a dispute concerning the terms of a sectoral employment order". A recommendation, if accepted by the Minister, can then become an SEO.

10.              It is to be noted that this only contemplates that the procedure will apply to disputes concerning the terms of the SEO, and here it is plain that the SEO on its face did not contain any provision for payment for travel time (although it could have under s. 16(5)) (it should be recorded however that the company argued that the dispute here was in relation to the SEO since it was said that the rate set by the SEO for the first hour of pay took account of travel). In addition s. 16 (6) only appears to specify a dispute resolution procedure. It does not expressly provide that no industrial action will take place unless it has previously been submitted to the dispute resolution procedure. It is important that this is in contrast to the express terms of s. 8(3)(d) which provide that in order to be registered any REA must contain a clause providing that "if a trade dispute occurs between workers to whom the agreement relates and their employers, industrial action or a lock-out shall not take place until the dispute has been submitted for settlement by negotiation in the manner specified in the agreement". Furthermore, both s. 16(6) and s. 8(3)(d), and the provisions of the 2015 Act more generally are silent as to the method of enforcement in law (if any) of either clause.

11.              It seems that SEOs will be honoured at the level of industrial relations practice but the sole legal consequence of the making of an SEO specified in the Act is contained in s. 19 which provides for the adaptation of certain provisions of contracts of service consequential upon SEOs. Section 19(1) states that an SEO shall apply to every worker of the class, type or group in the economic sector to which it is expressed to apply and his/her employer, and further provides that if the existing contract between the worker and employer covered by the SEO provided for the payment of remuneration, sick pay or pension scheme, at rates less favourable than those provided in the SEO, then the contract would take effect, as if the order rate, and order conditions were substituted for the contract rate condition.

S.I. 2018/59

12.              The SEO in this case set out pay and conditions of employment and the terms of a pension scheme. It also contained a dispute resolution procedure as follows:-

"The following dispute resolution procedure shall apply to those covered by this Sectoral Employment Order.

If a dispute occurs between workers to whom the SEO relates and their employers, no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with. All sides are obliged to fully comply with the terms of the disputes procedure".

In respect of a collective dispute, the SEO provided that:-

"a) The grievance or dispute shall be raised in the first instance with the employers with a requirement to respond within 5 working days. Notice in writing of the dispute shall be given by the workers concerned or their trade union to the relevant organisation representing employers or to the employer directly.

b) If a dispute is not resolved the issue shall be referred to the Conciliation Service of the WRC.

c) If the issue remains unresolved, it shall be referred to the Labour Court for investigation and recommendation."

It should be noted that while the Industrial Relations Act, 1990 (the "1990 Act") contains a number of provisions requiring compliance with balloting requirements, the procedure in the SEO did not itself contain any requirement for balloting. The SEO did, however, contain what has been called a "no strike clause", i.e., an agreement that no strike or lockout or other form of industrial action would take place until the procedures had been complied with.

13.              The plaintiff's claim appears at first sight to be quite simple; it is contended that the industrial action, which the union and its members who were employees of the plaintiff engaged in on 10 March 2023 and proposed to continue, had been commenced in breach of the no strike clause because the dispute had not been submitted to the dispute resolution mechanism under the SEO. The factual basis for this contention is a little complex, but is not itself in dispute for the purposes of this appeal.

14.              As set out above, in 2011 following a collective bargaining process, trade unions operating in the mechanical engineering building services contracting sector (including Unite) and the employers' group MEBSCA (including the plaintiff company) agreed to incorporate the first hour of the historic entitlement to travel time into the sector hourly rate of pay. Thereafter there was no separate travel time payment. In 2018, the SEO (S.I. 2018/59) was introduced setting terms of pay and pension. In May, 2019 Unite and another union, Connect, served a claim on MEBSCA for both increases in pay and a claim for a separate travel time payment. The dispute was not resolved, and pursuant to the collective dispute resolution mechanism under the SEO, the issue was referred to the conciliation service of the Workplace Relations Commission. An agreement was reached on pay, and the parties (Unite, Connect and MEBSCA) agreed that the issue of travel time would be referred to the Labour Court for investigation and recommendation pursuant to s. 26 of the 1990 Act which permits voluntary submission of disputes to the Labour Court. On 8 November, 2022 the Labour Court issued a recommendation stating that there was no reasonable basis to recommend concession of the Unite/Connect claim for travel time.

15.              Unite responded to this decision by publishing a circular addressed to all its members in the mechanical engineering sector and announcing an intention to seek the views of the members on the possibility of balloting for industrial action seeking the reinstatement of the first hour of travel time payment. At this stage the matter was being conducted at the level of a sectoral dispute between the union and all its members in the sector and all the employers in the sector. On 9 February, 2023 however, the regional officer of Unite, James McCabe, wrote to the Unite members directly employed by the plaintiff and notified them that there had been a vote in favour of conducting a secret ballot, and that the union was now proposing a secret ballot on taking industrial action against the plaintiff, (and another company which was in common ownership). This letter was issued only to the members of Unite who were employed by the respective companies.

16.              A ballot was conducted on 24 February, 2023 and on 28 February, 2023 the first defendant served notice of industrial action to take place on 10 March, 2023 (and on a rolling basis thereafter) involving a full withdrawal of labour, and that pickets would be placed on the plaintiff's premises and those sites where it carried on business, on 10 March, 2023. The following day, on 1 March, 2023 the union advised its members directly employed by the plaintiff that of the 153 ballots issued, 96 members had balloted in favour of industrial action. On 7 March the solicitors for the plaintiff wrote to the union contending that no trade dispute existed between the plaintiff and the union and its members within the meaning of s. 8 of the 1990 Act. On the following day these proceedings were issued and - as I have earlier noted - on 9 March, 2023 a notice of motion was issued seeking an injunction and other relief, which was adjourned to 21 March, 2023 for hearing. On 10 March, 2023, the industrial action took place involving various industrial building sites in Co. Dublin and Co. Kildare. As already discussed, the application was heard on 21 March, 2023 and on 23 March, 2023 an ex tempore judgment was delivered.

17.              The factual contention upon which the plaintiff's case was based, was that the industrial action which commenced on 10 March, 2023 involved a dispute between the employees of the company (and the union) and the company itself, and that that dispute had not been submitted to the dispute resolution procedure provided for under the SEO. This contention chimed with the underlying complaint of the plaintiff as explained by counsel, which was that the company took exception to being singled out for industrial action in respect of what had hitherto been a sectoral issue dealt with on a sectoral basis. The company also complained about the procedure adopted for the ballot and subsequently made a number of legal arguments which will be addressed shortly.

18.              The position of the union in response was that the SEO procedure did not apply to this dispute. It was contended that on its face the SEO was limited to a dispute about the terms of the SEO and it was quite clear that it did not contain any provision for travel time payment. Alternatively, it was said that the procedure had in any event been in substance complied with by the union's submission of the sectoral dispute to the WRC and there had been a subsequent Labour Court determination under s. 26. It would be an act of futility to submit the same dispute to the same bodies.

19.              As already observed, an ex tempore judgment delivered in the High Court granted the injunction. In essence, the trial judge accepted that there was an argument that this was a separate dispute for the purposes of the dispute resolution process. The claim made by Connect and Unite was a global application in respect of travel time concerning 11,000 people, while the current dispute in respect of this particular company related to a maximum of 190 individuals. She observed that there was a dispute between the parties as to whether there was a dispute process between the parties, and if so, whether it was pursuant to the 2018 SEO or the 2011 agreement. It also appears to have been argued on behalf of the union that the dispute process in the SEO was ultra vires the provision of s. 16(6) of the 2015 Act. The trial judge accordingly considered there was a fair issue to be tried as to the existence of a dispute resolution process between the parties and whether the SEO dispute process covered a dispute as to payment for travel time. There was, she considered, a strong argument available to the plaintiff company in that respect. She did not consider however that there was an issue of the same nature in relation to the balloting within the union.

20.              The trial judge then addressed the question of the balance of convenience in accordance with the principles set out in Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65, [2020] 2 IR 1 ("Merck"). She considered that the plaintiff would suffer damages which could not be compensated in monetary terms because it could suffer reputational damage and be affected in its ability to secure further contracts. In respect of the union and employees, she considered that since the industrial action had been identified as a rolling campaign, and that the only date upon which a strike had taken place was 10 March, then the interference with any right of the defendants was de minimis. Applying the criteria set out in Merck, she concluded, that while it was difficult to assess, the case would probably go to trial and therefore it was not necessary to go further than consider whether there was a fair issue to be tried. She considered therefore, that there was little intrusion on the defendants if the case came on for hearing in a relatively short time. Accordingly, she granted the injunction as set out above.

21.              It must be said that while the factual background is a little difficult to follow, the legal route which it was necessary to exhaust to obtain the injunction in this case, was much more complicated. It is something of an irony that legislation which appears to be designed to remove industrial disputes so far as possible from courts has resulted in an extraordinarily complex legal landscape, and the necessity to resolve sometimes very difficult issues of fact and law often under considerable pressure of time. This case is a good illustration of the difficulties involved and the grant of leave to appeal to this Court provides an opportunity to take a more measured and comprehensive survey of the applicable law than may be possible in the course of an urgent application.

22.              It is both remarkable and unfortunate, that in order to understand the law relating to trade disputes, picketing and injunctions, as involved in this case, and such cases more generally it is necessary to understand the development of the law, both common law and statutory, since the latter part of the 19^th century. As is recounted at paragraph 1.02 in Redmond and Mallon, Strikes: An Essential Guide to Industrial Action and the Law (Bloomsbury 2010), during the 19^th century UK governments and courts were prominently representative of interests hostile to organised labour, and what was described as "[a] legal game of battledore and shuttlecock developed". Time and again, the UK courts pronounced on the law in a manner hostile to trade unions, and "repeatedly trade unions pressurised governments to change the law to remove the effect of a judicial decision only to see their success frustrated and undermined by a subsequent legal decision".

23.              Initially, the common law treated trade union activity, in particular industrial action, as an unlawful and criminal combination. In Ireland, the Trade Union Act, 1871 granted legal recognition to trade unions, and in s. 2 provided that the purposes of any trade union should not by reason merely that they were in restraint of trade be deemed unlawful "so as to render any member of such trade union liable to criminal prosecution for conspiracy or otherwise". The Conspiracy and Protection of Property Act, 1875 provided an immunity for trade unions and their members from prosecution for criminal conspiracy. A further immunity was provided for picketing in contemplation or furtherance of a trade dispute, which hitherto had been considered to be a common law criminal offence of watching and besetting. (See now s. 9 of the Non-Fatal Offences Against the Person Act, 1997).

24.              The focus of legal developments thereafter turned to the civil law. The law of tort had recognised a tort of conspiracy in relation to trade disputes and the liability for union officials for inducing breach of contract of employment and of commercial contracts. In Taff Vale Railway Company v. Amalgamated Society of Railway Servants [1901] AC 426, the House of Lords held that a trade union could be liable in its own name for the acts of others, which exposed union funds to actions for damages by employers. As Redmond and Mallon state at paragraph 1.18, "Taff Vale threatened the whole structure of collective bargaining. Moreover, it meant that injunctions could be issued directly against unions, and their funds made available to pay damages for loss of profits brought about by the strike".

25.              This was the well-known background to the Trade Disputes Act, 1906 (the "1906 Act") introduced by the then UK government. As observed by Kenny and Parke JJ. in Goulding Chemicals v. Bolger [1977] I.R. 211 ("Goulding Chemicals") at pp. 236 and 242, the Act was introduced to redeem an election pledge and there are many indications that it was hurriedly drafted and that its wording did not receive adequate consideration. It is unlikely it was anticipated that it would endure for nearly a century and continue to set the structure for the legal regulation of industrial disputes for the legislation that followed.

26.               Under the 1906 Act, unions and their members were granted immunity from certain forms of criminal and civil liability if acting "in contemplation or furtherance of a trade dispute" defined by s. 5 of the Act in broad terms 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 employment or the conditions of labour of any person".

Section 1 of the 1906 Act protected trade union officials and others from actions for damages and conspiracy. Section 2 made it lawful to engage in peaceful picketing, and s. 3 removed liability for interference with another person's business and other economic torts. Section 4 removed union funds from exposure to damages in tort by prohibiting an action taken against it in respect of any tort alleged to have been committed by or on behalf of the trade union. In the case of ss. 1, 2 and 3, the immunities granted were available only when the acts were done in contemplation or furtherance of a trade dispute.

27.              The structure of the 1906 Act was thus to reverse the effect of a series of decisions, but not to abolish or restrict the causes of action that had been developed and applied to trade unions and their members before the coming into force of the Act. Instead, in theory, the actions remained wrongful at common law, but immunity was provided in certain circumstances. This suggested that anyone participating in such action other than in furtherance of a trade dispute would be liable in tort. See in this regard the interesting discussion in Hyland v. Dundalk Racing [2014] IEHC 60 (Unreported, High Court, Hogan J., 10 February 2014) and Sullivan v. Boylan (No. 2) [2013] IEHC 104, [2013] 1 I.R. 510. Section 11 of the Trade Union Act, 1941 further narrowed the area of lawful activity by providing that ss. 2, 3 and 4 of the 1906 Act would only apply to authorised trade unions (and its members and officials) who held a negotiation licence.

28.              The structure of the legislation meant that the law could be analysed, not as conferring a positive entitlement to engage in industrial action, but rather as treating such industrial action as essentially unlawful, but where limited statutory immunity was available in certain circumstances. Thus, Lord Denning was able to say in Express Newspapers v. McShane [1979] 2 All E.R. 360, 672, "...Parliament granted immunities to the leaders of trade unions, it did not give them any rights. It did not give them a right to break the law or to do wrong by inducing people to break contracts. It only gave them immunity if they did". The following year another senior judge, Lord Diplock, said in Duport Steels Limited v. Sirs [1980] 1 All E.R. 529, that the Trade Disputes Act, 1906 as extended in 1974 and 1976 was "...intrinsically repugnant to anyone who has spent his life in the practice of the law or the administration of justice". As early as 1915, it had been said by Lord Parker of Waddington, in Larkin v. Long [1915] A.C. 814, at pages 832-3, that "[a]n Act of this sort ought, according to principles which have hitherto prevailed in construing Acts of the Legislature, to be construed with reasonable strictness and not to be given a meaning wider than the words used will justify".

29.              As Redmond and Mallon noted at paragraph 1.24, "[o]n traditional principles, because the Act exempts from liability at common law, its boundaries are narrowly, rather than widely, construed. Judges in Ireland have adhered firmly to traditional principles". In Goulding Chemicals, it was argued by the plaintiffs (at page 219) for example that the 1906 Act "being a statute restrictive of the rights of individuals and businesses, must be construed strictly according to the wording used in the Act itself, and without reference to the presumed intentions of Parliament in enacting it". It should be said that the decision in that case shows that this approach has not held sway in this Court, but there are traces of it in the jurisprudence.

30.              One further feature of the rather haphazard way in which the 1906 Act was drafted is that while it provides for an immunity for the tort of inducing breach of contract, it does not address the question of breach of contract itself. In theory, if engaging in industrial action including strikes was considered to be a breach of contract on the part of the employee, he or she could be sued in that respect, even if a union official was immunised for inducing that breach, and the union and its funds were protected from any action. Again, as observed by Redmond and Mallon at paragraph 1.33, "[o]n one view, a network of immunities precariously serves as a substitute for general principle, and such a network runs the risk of becoming a labyrinth. Ireland opted to re-enact the network of immunities in 1990, and the labyrinth which inevitably accompanies it".

The Act of 1990

31.              The Industrial Relations Act, 1990 can be seen as a balanced piece of legislation which amends and extends the traditional immunity for trade union activity and industrial action, which had been in place since 1906, but in terms that sought to reinforce democratic control within the unions. First, a trade union is defined by the Act as a "holder of a negotiation licence under Part II of the Trade Union Act, 1941", and a trade dispute was redefined as "any dispute between employers and workers which is connected with the employment or non-employment, or the terms or conditions of or affecting the employment, of any person". This removes disputes between workers from the definition of trade dispute, but slightly expands the scope of trade disputes to include not just those relating to the terms or conditions of employment but also, those affecting the employment.

32.              Section 9 provides that ss. 11, 12 and 13, which reproduce in broad terms the immunities created by ss. 1, 2 and 3 of the 1906 Act, shall only apply in relation to authorised trade unions which are holders of negotiation licences and the members and officials of such trade unions. Thus, the section reinforced the position of the trade union movement more generally since it made industrial action by unofficial unions and groupings much more hazardous. Section 9(2) contains an important restriction applicable where a dispute related to the employment of one individual worker. In such a case, where there are agreed procedures availed of by custom or practice in relation to the employment concerned, or provided for in a collective agreement, for the resolution of individual grievances, ss. 10, 11 and 12 only apply where those procedures had been resorted to and exhausted. Section 10 provides for an immunity in both civil and criminal law, for conspiracy where any act, if committed by one person, would not itself either be punishable as a crime or actionable. Section 11(1) confirms that lawful picketing is permitted in contemplation or furtherance of a trade dispute as follows:-

"It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where their employer works or carries on business, 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".

            Again, this restates the traditional position which had existed since 1906. Section 11(2) permits secondary picketing of an employer who is not a party to the trade dispute, but only if it is reasonable for those picketing the premises to believe that the employer has directly assisted their employer who is a party to the trade dispute for the purposes of frustrating the strike or other industrial action.

33.              Section 12 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—

(a) it induces some other person to break a contract of employment, or

(b) it consists of a threat by a person to induce some other person to break a contract of employment or a threat by a person to break his own contract of employment, or

(c) it is an interference with the trade, business, or employment of some other person, or with the right of some other person to dispose of his capital or his labour as he wills."

Again, this provision repeats the traditional immunity contained in the 1906 Act, somewhat rephrased to take account of developments in case law since 1906, notably the decision of the UK House of Lords in Rookes v. Barnard (No. 1) [1964] AC 1129. Notably (and as with the 1906 Act itself), the immunity provided by s. 12 is limited to liability in tort and does not address liability for breach of contract. In particular, it does not provide immunity in respect of a breach of a contract of employment - even though immunity was provided for inducement of such a breach.

34.              Section 13 of the Act provides for restrictions of action against a trade union in respect of any tortious act committed by or on behalf of a trade union in contemplation or furtherance of a trade dispute and s. 13(2) extends that immunity to conduct undertaken in the reasonable belief that it was done in contemplation or furtherance of a trade dispute.

35.              Section 14 of the Act is entirely novel, and incorporates a requirement that the rules of every trade union shall contain provisions requiring a secret ballot and provides that the union shall not organise, participate, sanction or support a strike or other industrial action without such a ballot, entitlement to vote at which shall be accorded equally to "...all members whom it is reasonable at the time of the ballot for the union concerned to believe will be called upon to engage in the strike or other industrial action". The section contains other provisions in relation to the ballot, and the publication of its outcome, but s. 14(3) provides that the rights conferred by those rules required to be inserted by s. 14(2) are "conferred on the members of the trade union concerned and on no other person".

36.              Section 17 of the Act provides that ss. 10, 11 and 12 (i.e. the protection of picketing and the individual immunities for conspiracy, picketing and inducing breaches of contracts and other economic torts) shall not apply in respect of proceedings arising out of a strike or other industrial action by a trade union or a group of workers "in disregard of or contrary to, the outcome of a secret ballot relating to the issue or issues involved in the dispute". It is noteworthy, that this section does not disapply the provisions of ss. 10, 11 and 12, by reference to the rules of the union required to be imported by s. 14(2). The section is limited to actions taken in disregard of, or contrary to, the outcome of a secret ballot. This distinction was central to the decision of the Supreme Court in Nolan Transport (Oaklands) Limited v. Halligan & ors [1998] IESC 5, [1999] 1 I.R 128 ("Nolan Transport").

37.              In Nolan Transport the High Court had awarded damages of over £600,000 against the defendants for loss found to have been sustained by the plaintiff as a consequence of industrial action undertaken by some of its employees. The Supreme Court refused to overturn the High Court's finding that the ballot had been interfered with by the defendants and that the outcome had been "rigged". The Court found that compliance with the rules of the union were a matter for the members of the union, or could result in the loss by the union of its negotiating licence, but did not lead to disapplication of the protections provided for in ss. 10, 11 and 12. However, it was not open to an outsider, in this case the employer, to seek to contend that the rules of the union had not been complied with for that purpose. Section 17 merely required that the industrial action was not carried out in disregard of or contrary to the outcome of a secret ballot, and that had not been established. Failure by a union to hold a secret ballot in accordance with s. 14 of the 1990 Act did not affect its immunity from suit in tort. However, the Court observed that by contrast, the express reference in s. 19 of the 1990 Act to compliance with the terms of s. 14 of the 1990 Act suggested that those engaged in industrial action could not rely on the protection against injunctive relief under s. 19 where it was established that a purported secret ballot was not held in accordance with the provisions of s. 14. Section 19 has been the subject of detailed argument on this appeal.

Section 19 of the Industrial Relations Act 1990

38.              Section 19 of the 1990 Act had no precursor in the 1906 Act. It deals expressly with the grant of injunctions and as observed in the decision in Nolan Transport, does appear to involve a consideration of whether the secret ballot was held in compliance with the provisions of s. 14. Section 19(1) provides that where a secret ballot has been held in accordance with the terms of s. 14, the outcome of which favours a strike or other industrial action, and notice of not less than one week is given to the employer concerned of the intention to engage in industrial action, "...that employer shall not be entitled to apply to any court for an injunction restraining the strike or other industrial action unless notice of the application has been given to the trade union and its members who are party to the trade dispute". This provision means that an ex parte injunction cannot be obtained in circumstances to which the section applies, viz where a secret ballot has been held in accordance with s. 14, the outcome of which favours the strike or industrial action.

39.              Section 19(2) is central to this case; it provides as follows:-

"Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute".

For present purposes, I propose to consider s. 19(2) as addressed to an application for an interlocutory injunction to which it seems directed. The reference to a "fair case" together with the fact that s. 19(1) is clearly only referable to an ex parte interim injunction suggests that the section is limited to applications for an interlocutory injunction pending trial, but since the question of the application of the section to a claim for a permanent injunction does not arise, and was only touched on in argument, it is not necessary to express a concluded view on that issue. If it is so limited, it is another example of the anomalies thrown up by this form of drafting which does not address the underlying legal test and attempt some adjustment of it, but rather simply imposes a blunt prohibition dependent on criteria unconnected to the test for the grant of an injunction. It is a basic test for the grant of an interlocutory injunction that the case is one which if the plaintiff were to succeed at trial a permanent injunction would be granted. The section however separates the two, and at least in theory leaves open the possibility of a permanent injunction after a trial, which might itself be expedited. The provisions of s. 19 are nevertheless an expression of clear dissatisfaction with the application of the law on interlocutory injunctions in industrial disputes as it stood prior to the Act.

40.              The background to the introduction of s. 19 in the 1990 Act was identified at paragraph 6.4 of the judgment of Clarke J. in P. Elliott and Company Limited v. Building and Allied Trades Union [2006] IEHC 320, (Unreported, High Court, 20 October, 2006) ("P. Elliott"). In the period prior to the 1990 Act, the law applied in relation to the grant of interlocutory injunction tended to be that set out in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 ("Campus Oil"), which adopted and applied the test set out in the House of Lords decision of American Cyanamid v. Ethicon Limited [1975] AC 396.

41.              In simple terms, the Campus Oil test provides that the function of a court in an application for an interlocutory injunction is not normally to seek to express views on the likely outcome of litigation which would come on for trial in due course. Instead, the court should satisfy itself of whether there is a fair issue to be tried, and thereafter consider whether the balance of convenience favours the grant or refusal of an interlocutory injunction. This in turn requires the consideration of whether the plaintiff would suffer damage which could not be compensated for by the award of damages, (or would suffer financial loss which the defendant would not be able to satisfy, or in the case of a trade union, would be protected by law from being required to satisfy) if an injunction were not granted, and the plaintiff succeeded at trial. The court should balance that against its assessment of the damage if any which the defendants would suffer if precluded from engaging in the industrial action until the trial of the action, and it was determined at the trial that they were in fact entitled to do so.

42.              As Clarke J. observed in P. Elliott, in practical terms, in industrial dispute situations prior to the 1990 Act, "...the normal outcome of an interlocutory hearing, in circumstances where there was a fair case to be tried either way as to whether a trade dispute existed, was that the balance of convenience was taken to favour the employer and an injunction imposed". It might be observed that this placed a premium on the capacity to identify a fair issue to be tried.

43.              Redmond and Mallon op.cit. at paragraph 11.28 explained the background to s. 19 as follows:-

"It was very common, prior to the enactment of the Industrial Relations Act 1990, for employers to make ex parte applications to restrain picketing of their premises. It was almost invariably the case that the employer could show that the balance of convenience lay with the granting of the order (typically based on some argument that there would be a failure to meet an urgent order or that products or goods would be damaged or spoiled) and also that damages were an inadequate remedy in circumstances where typically the picketers were not marks for damages. In those circumstances the employer merely had to satisfy the court that there was to be a fair issue to be tried. Much criticism was levelled, particularly by trade unionists, at what was perceived as an employer using, or perhaps abusing, the legal system to obtain an interim injunction, which often had the immediate effect of rendering the picketing wholly ineffective. If the picketers complied with the interim order, then the immediate disruption of their employer's business would be resolved... the rendering of the picketing ineffective was perceived by trade unionist as rendering the very strike weapon as being ineffective".

            The criticism of this approach was not limited to trade unions. In his dissenting judgment in Bayzana Ltd. v. Galligan [1987] I.R. 238 ("Bayzana"), McCarthy J. explained in powerful terms, the manner in which the application of the traditional approach could result in injustice:-

" It is notorious that in actions of this kind, the resolution of the interlocutory motion is, effectively, the resolution of the action. This does not mean that the plaintiff has established his right to win, but that the plaintiff wins if he can get an interlocutory injunction. This should not be the case but it is. In the course of argument, I asked [counsel] to refer to any case in the last decade or two in which an injunctions had been granted restraining picketing, where there had been a subsequent trial, irrespective of the result. He was unable to do so. The reason is a very practical one, quite apart from the natural reluctance to endanger union funds in respect of law costs. If an interlocutory injunction is granted, either at first instance or on appeal, by the time the trial takes place, however relatively short the interval may be, the bloom has gone off the steel of industrial action; men give up - seek other jobs - go elsewhere for that purpose - emigrate. Worst of all, they may well settle for less than what are their true rights because, they think, however mistakenly, that the dice are loaded against them in the Law Courts... We have not been referred to any case in which an attempt was made to pursue a claim for damages by a trade union or its members pursuant to an undertaking to that effect given by an employer or other party seeking and obtaining an interlocutory injunction. Such an undertaking is very appropriate to many types of interlocutory injunction but, as I asked [counsel] during the hearing, how do defendants in a case such as the present prove any loss, if they win the case, if a trial does take place".

44.              It is apparent that s. 19 was introduced to address these concerns. However, as observed above, it did not seek to amend or refine the law relating to interim and interlocutory injunctions by, for example, altering the test that was to be applied. Instead, it operates in quite a blunt way. In the case of s. 19(1) it precludes any grant of an interim injunction in circumstances where a ballot has been held in accordance with the rules of the union as provided for in s. 14, the outcome of which favours a strike, and not less than one week's notice has been given. In such circumstances, no matter what arguments might be made as to the strength of the employer's case, the urgency of the matter, or the damage which might be suffered, an interim injunction cannot be granted. In the case of s. 19(2) the possibility of an interlocutory injunction is not similarly excluded, but if the s. 14 ballot has been held, and it favours the holding of an industrial action, and notice of not less than one week has been given, then an injunction cannot be granted where the respondents establish a fair case that they were acting in contemplation or furtherance of a trade dispute.

45.              In this case an interlocutory injunction was granted restraining industrial action pending the trial of the action. At the level of principle, and in the light of the statutory provisions discussed above, it is clear that it is necessary to navigate a sometimes tortuous path and surmount a number of hurdles before an injunction can be granted. In order to restrain industrial action, it is necessary to show both that s. 19 does not bar the grant of an injunction, and, that the statutory immunities and protections in ss. 10, 11 and 12 do not apply in relation to individuals (or at least that it is arguable that this is so), and show that s. 13 does not apply in respect of a claim against a trade union or its officers (or once again that there is an arguable case in this regard). In theory it would still be necessary to establish a possible cause of action and the criteria for the grant of an interlocutory injunction, such as a stateable case or perhaps a strong arguable case; the inadequacy of damages; and that the balance of convenience favoured the grant of an injunction. However, in practice the case proceeds almost in reverse, and upon an assumption that if the statutory immunities can be (arguably) disapplied, that it follows that the conduct sought to be restrained is (arguably) unlawful, and that consequently the balance of convenience will almost always favour the grant of an injunction. Furthermore, because the issue is addressed in the context of an interlocutory injunction, the underlying legal questions are often dealt with solely on the basis of whether a fair issue has been raised as to the plaintiff's cause of action on the one hand, or whether on the other hand, there is a fair case that the action is in contemplation or furtherance of a trade dispute, for the purposes of permitting the defendant to avail of the provisions of s. 19. This can be a complex exercise, particularly when it is required to be addressed at short notice and under pressure of time and events.

46.              Before analysing the arguments raised in this case on foot of which the interlocutory injunction was granted, it is necessary to refer to one further statutory provision, and to events which have occurred since this appeal has been brought.

47.              A key component of the plaintiff's claim is the contention that the industrial action occurred in contravention of the dispute resolution process, and more particularly the no strike clause in the SEO. It will be recalled that S.I. 2018/59 included a collective dispute resolution procedure providing for the raising of the dispute with the employer and if not resolved, reference to the conciliation service of the WRC, and if still not resolved, reference to the Labour Court for investigation and recommendation. It was expressly provided that if a dispute occurred between workers to whom the SEO relates and their employers, "no strike or lock-out, or other form of industrial action shall take place until the following procedures have been complied with. All sides are obliged to fully comply with the terms of the dispute procedure". An essential building block of the plaintiff's case was therefore, that this provision was incorporated into the contracts of employment of the individual workers and arguably, was also a term of a contract between the union and the employers bound by the SEO; that the dispute giving rise to the industrial action was covered by the SEO; and that while there had been a dispute resolution procedure engaged in on a sectoral basis, the dispute between this union (and its members and employees of the plaintiff company) and the plaintiff company, had itself not been submitted to the dispute resolution procedure.

48.              To this the union responds with a number of arguments already touched upon: the SEO does not cover travel time and accordingly this dispute that the provision is in any event not incorporated into the terms of either contract; s. 19 of the 2015 Act only adapts contracts of service in respect of rates of pay; in any event the dispute resolution procedure was in substance complied with by the dealings at sectoral level in respect of the question of travel time; and if necessary, that the provisions of the SEO were ultra vires the 2015 Act. To these arguments the plaintiff responds in turn that whatever the cogency of these arguments, there is clearly a fair issue to be tried in this regard and that the balance of convenience favoured the grant of an injunction.

Subsequent developments in relation to the SEO

49.              After the grant of leave in this case, but before the hearing of this appeal, the High Court on 10 October, 2023 made an order on consent of the parties in separate and unrelated proceedings (Association of Plumbing and Heating Contractors Ireland CLJ and anor v. Minister for Enterprise, Trade & Employment (Unreported, Hyland J.)) quashing the SEO (S.I. 2018/59) on the grounds that it was ultra vires the 2015 Act, albeit on an issue in relation to pensions, which was not related to the issues raised in these proceedings. Nevertheless, it was accepted by the parties that the effect of the order is to invalidate the SEO and the dispute resolution procedure, and consequently a key underpinning of the plaintiff's case. It was accepted by the plaintiff, therefore, that there could be no basis for a continuation of the injunction at this stage. However, and in light of the importance of the issues concerned, the parties were agreed that the appeal should proceed on the basis that the Court should determine whether or not the order perfected on 19 April, 2023 granting the interlocutory injunction ought to have been made having regard to the facts in law as they then stood. In light of the importance of the issues involved, and the relative paucity of authority on an important area of law, the Court agreed that it would proceed to determine the issue on that basis, but, in the light of the quashing of the SEO, the Court, at the conclusion of the hearing, set aside the injunction since whatever the outcome of the appeal on the legal issues raised, it could not result in any order restraining the defendants on the basis of the provisions of the SEO.

Section 19 of the 1990 Act

50.              Section 19 of the 1990 Act is on its face an absolute bar to the grant of an interlocutory injunction where the limited conditions set out in the section can be satisfied. It follows that before any injunction can be granted it must necessarily be established that s. 19 does not apply. The union observed that it was a striking feature of the judgment appealed against that it made no reference whatsoever to the section (or, for that matter to the 1990 Act). It was argued on behalf of the plaintiff company that the case in the High Court had proceeded on the basis that a number of High Court decisions had established that it was possible to obtain an interlocutory injunction to restrain an industrial action, particularly one where there was a dispute resolution/ no strike clause, which it was contended had not been complied with. It was argued that the case in the High Court proceeded by way of a consideration of whether this case could be brought within the principles said to be established or at least illustrated by those High Court cases and to that extent s. 19 was central to the case even if not expressly referred to.

51.              Counsel on behalf of the plaintiff company accepted that the prohibition in s. 19 was capable of applying to this case, but argued that it did not do so, on at least three different bases. First, it had been argued in the High Court that the ballot which had been carried out prior to the commencement of the industrial action had been defective. This is in principle a ground capable of leading to the disapplication of s. 19, because the section itself contemplates that a precondition to its application is the conduct of a ballot in accordance with s. 14 of the Act. However, counsel also acknowledged that the High Court judge had rejected this argument, the plaintiff company had not sought to cross appeal or to vary that decision, and accordingly, the argument could not now be advanced in this Court as justifying the disapplication of s. 19.

52.              The second argument was that the existence of a no strike clause had the effect that no lawful trade dispute could come into existence prior to compliance with the dispute resolution procedure. This argument relied on the obiter dictum of Walsh J. in Becton, Dickinson and Company Limited v. Lee [1973] I.R. 1 ("Becton, Dickinson and Company Limited") at page 39 which left open this possibility:-

"I expressly wish to reserve my opinion on the question of whether a withdrawal of labour in breach of contract, whether or not there is a no-strike clause in the contract, constitutes a "trade dispute" within the meaning of s. 5 sub-s. 3 of the Act of 1906, and whether picketing in furtherance of it is, or is not, lawful within the meaning of the provisions of s. 2 of the Act of 1906".

It was, it was contended, plainly arguable therefore, that no trade dispute was in existence in this case. If so, it would follow, it was argued, that neither s. 19, nor the immunities in ss. 10-14 of the 1990 Act were available to the employees or the union and an injunction could be granted. A related argument was that the 2015 Act must be understood to have introduced mandatory dispute resolution procedures into the industrial relations framework at least in respect of REAs and SEOs and that accordingly a trade dispute within the terms of the 1990 Act could not come into existence until the procedure was complied with.

53.              The third argument also relied on a related area of law that has long been the subject of debate. The starting point of the argument was to observe that the 1990 Act no more than its predecessor in 1906, did not purport to provide immunity for a claim for breach of contract, and certainly for breach of the contract of employment. Instead, the protections afforded by the 1990 Act related to claims in tort. It was acknowledged that in Becton, Dickinson and Company Limited, Walsh J., following in this regard, the observations of Denning M.R. in Morgan v. Fry [1968] 3 All E.R. 452, had advanced a theory that if a strike was preceded by sufficient notice to terminate the contract itself, then such a strike would not in itself be a breach of contract. Instead, the contract could be said to be suspended for the duration of the industrial dispute. However, counsel for the plaintiff company pointed out that this approach had in turn been criticised in the UK, and had not been followed in that jurisdiction. If this latter approach were correct then a strike was itself a breach of contract on the part of the employees which could, it was said, be restrained by injunction. If so, it was further argued that s. 19, while phrased in general terms, had to be understood in the context of the Act as a whole and subject to the same scope and the same limitations as the specific immunities contained in ss. 10-14. Those sections provided no immunity in respect of a claim for breach of contract, and it was argued therefore, that any such breach was also outside the scope of s. 19 and not affected by it.

54.              Finally, counsel pointed to the provisions of three decisions of the High Court which it was argued showed the law had developed to the point where it was accepted that it was possible to grant an injunction to restrain industrial action alleged to have been commenced in breach of a no strike/dispute resolution clause incorporated in an agreement. These cases were respectively, Daru Blocklaying Limited v. Building and Allied Trades Union [2002] IEHC 125, [2022] 2 I.R. 619 ("Daru Blocklaying"), P. Elliott, and DAA and Ryanair v. SIPTU [2014] IEHC 644, [2014] E.L.R 248 ("DAA"). Counsel argued, in reliance on these decisions, that any ballot of employees bound by a no strike clause was not in accordance with s. 14 as such employees could not, it was said, properly or reasonably be expected to engage in the industrial action, and if so s. 19(2) did not apply.

55.              Counsel for the plaintiff company skilfully traced a complex route through the authorities in support of his argument that the interlocutory injunction had been properly granted. The argument in this case and the detailed analysis of the case law, illuminates many of the difficulties with the law relating to interlocutory injunctions which are sought to restrain industrial action.

56.              In my view, it is profoundly unsatisfactory that proceedings in this area should still hark back to cases decided between half a century and a century ago, and courts should still be addressed on the difficult and unresolved questions of how Allen v. Flood [1898] AC 1 and Quinn v. Leathem [1901] AC 495 are to be understood; what was decided in Lyons v. Wilkins [1899] 1 Ch 255; what was determined in Cooper v. Millea [1938] I.R. 749; what arguments can be mounted by reference to the decision in Becton, Dickinson and Company Limited, and that none of these issues have been resolved since these cases were decided. This in itself illustrates a difficulty in applying the framework in Campus Oil to decisions concerning injunctions in industrial disputes. That law places a high value on simply identifying arguable points of law, so as to lead to a consideration of the assessment of the balance of convenience which in this context as already observed will often favour the grant of an injunction. But it is rare for such cases to go to trial and have those issues determined, and if necessary, reviewed on appeal. The arguments continue to exist in a form of shadow life - sufficiently cogent to amount to an arguable case, but rarely if at all argued to final determination at full trial.

57.              Nor do I consider it correct to approach this area of law on the basis that industrial action is presumptively wrongful and tortious, and that the 1906 and 1990 Acts should be viewed as providing islands of immunity which are exceptions to the general rule, and which must accordingly be strictly construed. This, in my view, would be to ignore the clear objective of the legislation, the history against which it is to be understood, and indeed, the constitutional context in which it is to be read. It is true that both the 1906 and 1990 Acts are framed as providing immunities from actions, principally for tort, against unions and their members. But it must be recognised that those torts were created by the Victorian common law in response to the activities of trade unions, which were regarded as criminal and tortious.

58.              In 1861, John Stuart Mill, in his essay Considerations on Representative Government criticised the unrepresentative nature of parliament at that time observing:-

"[o]n the question of strikes, for instance, it is doubtful if there is so much as one among the leading members of either House who is not firmly convinced that the reason of the matter is unqualifiedly on the side of the masters, and that the men's view of it is simply absurd. Those who have studied the question know well how far this is from being the case; and in how different, and how infinitely less superficial a manner the point would have to be argued, if the classes who strike were able to make themselves heard in Parliament".

The same can be said of the decisions in the courts of that time. The 1906 Act as reenacted, refined and extended in the 1990 Act was intended to alter that balance to recognise in law, the legitimate views of the men and women who went on strike, and to protect what was increasingly seen as a right to engage in industrial action and neither it nor the 1990 Act can properly be seen as limited exceptions to a general principle that industrial action is wrongful.

59.              Article 40.6.1(iii)° of the Constitution does not itself expressly guarantee a right to strike. However, it does guarantee the right of citizens to form associations and unions. As such it must be understood to recognise the legitimacy of trade union activity. While such unions are not the only bodies protected by freedom of association, they were perhaps the principal object in view in 1937. The right to form unions would be of little benefit if the activities of the union and its members were to be regarded as presumptively unlawful. Whereas the common law insisted on seeing employment as the exercise of the freedom of contract between an individual and his or her employer, and thus ignoring the inequality of bargaining power, the organisation of employees in a trade union offered the possibility of balancing the collective power of the employees and the economic power of their employer, allowing issues in relation to contract to be resolved by collective bargaining and disputes to be pursued, if necessary, by collective action. I agree with what is said in the concurring judgment of Murray J. in this regard. The 1990 Act should not, therefore, be read narrowly or restrictively, but should be read to give effect to the protection of unions and their members which the Acts were clearly intended to provide. As Elias LJ said in The National Union of Rail, Maritime & Transport Workers v. Serco Limited [2011] EWCA Civ 226, [2011] All E.R. 913, at paragraph 9:-

"The statutory immunities are simply the form which the law in this country takes to carve out the ability for unions to take lawful strike action. It is for Parliament to determine how the conflicting interests of employers and unions should be reconciled in the field of industrial relations. But if one starts from the premise that the legislation should be strictly construed against those seeking the benefit of the immunities, the effect is the same as it would be if there were a presumption that Parliament intends that the interests of the employers should hold sway unless the legislation clearly dictates otherwise. I do not think this is now a legitimate approach, if it ever was. In my judgment the legislation should simply be construed in the normal way, without presumptions one way or the other."

If anything given the constitutional context just discussed, it would be appropriate to read the provisions of the Act generously to give full effect to the rights sought to be protected.

60.              It is sometimes a difficult task for a trial court to decide the order in which issues in a particular case should be addressed, and whether if a case can be resolved in one issue it is necessary to address and decide all other arguments. It is not desirable to be prescriptive in this regard. Nor, indeed, is it possible to do so in any useful way. Experience shows many cases in which appeals have been hampered, and proceedings rendered lengthier and more costly than they should have been because judges decide just one issue which appears to dispose of the application, but is ultimately found not to have done so. At the same time, judges decide these applications under pressure of time, and in circumstances in which they must allocate the limited resource of court hearing time to many different parties. Everything, to bolt to the often unhelpful judicial escape route, depends on the circumstances.

61.              That said, s. 19 creates a form of lex specialis in respect of injunctions in industrial disputes, and could in some cases be usefully addressed at the outset if it appears to offer a clear route to a decision. Certainly, courts should be aware that the method traditionally adopted of considering whether the criteria for an interlocutory injunction under Campus Oil have been satisfied - a serious issue to be tried, adequacy of damages, the balance of convenience - before addressing the provisions of s. 19, can skew the legal analysis. For reasons set out in the decision of this court in Merck that approach was not to be applied rigidly to all cases; was only applicable to disputes likely to go to trial; and was in particular not appropriate in many trade dispute cases such as this. It could lead to a court approaching the question of the application of s. 19 on the basis that an injunction would be granted were it not for the provisions of s. 19, which on this analysis could be seen as a limitation or restriction on what would otherwise be an entitlement of one party in law, to obtain equitable relief. This might lead a court to interpret s. 19 narrowly which would be wrong. Additionally there is, in any event, the possibility, illustrated by some of the cases, of a confusion between a test of whether an arguable case has been established by the plaintiff that certain actions were not in contemplation or furtherance of a trade dispute for the purposes of the Merck test, and the test required by s. 19 of considering whether the union has established a fair case that it or its members were acting in contemplation of furtherance of a trade dispute.

62.              In this case s. 19 provides in my view, a clear and decisive answer to the application, and resolves this appeal. Assuming that the action in question is being pursued by a registered trade union, then only four things must be established under s. 19(2); that a secret ballot has been held in accordance with the rules of the trade union as provided for in s. 14 of the 1990 Act; that the outcome of the ballot favoured a strike or other industrial action; that not less than one week's notice has been given to the employer concerned of the intention to engage in the strike; and that the respondent to the application has established a fair case that they were acting in contemplation or furtherance of a trade dispute. I agree that the onus is upon the respondent to an application to satisfy a court that the provisions of s. 19(2) apply. I agree with Murray J. that this factor, i.e. that a fair case has been established that the respondent was acting in contemplation or furtherance of a trade dispute, must be established by the respondent on the balance of probabilities. It is an error to think that s. 19 can be disapplied if the company/employer can establish a fair case to the contrary. That would mean that the respondents would have to establish a near certainty. Furthermore, I agree with Clarke J. (as he then was) in P. Elliot, that the Court must on such an application reach a conclusion as best it can on this question at the interlocutory stage. As was pointed out in that case, it is often the case at the interlocutory stage that the court must make some assessment of issues which are not capable of proof at that stage and this should be no different.

63.              There may be cases where that assessment is much more complex, but here it is not. As already observed, there is now no (direct) issue as to the holding of a ballot in accordance with s. 14 of the 1990 Act and the rules of the union required to be introduced by that provision. (It was argued in this appeal that the fact that the employees were contended to be bound by the no strike clause meant that they could not be reasonably considered likely to be called on to engage in the strike and therefore should not have been balloted under the rule required by s. 14(1)(a)). Nor is there any question that the outcome of that ballot favoured the taking of industrial action or that notice of not less than one week was provided to the employer concerning the intention of the union to engage in the industrial action. There was a dispute about payment for travel time. That claim has not been conceded by the employer. While arguments have been advanced suggesting for various reasons that a trade dispute within the meaning of the 1990 Act did not arise, these were precisely that, arguments, and, at a minimum therefore, there was a fair case that the industrial action was in contemplation or furtherance of a trade dispute. Accordingly, s. 19(2) precludes the grant of an interlocutory injunction restraining such industrial action.

64.              This analysis which resolves this case, illustrates both the simplicity and power of s. 19. It reverses the balance set by the pre-existing law. Where it was once easy to obtain an interlocutory injunction, it should now be extremely difficult to, even where an employer may have an arguable, indeed strong case, that the industrial action is unlawful. The uncertainty of the application of the law to the facts of a case which was a factor weighing strongly in favour of the grant of an injunction, has now been neutralised in the hands of the employer, and instead becomes a factor which weighs strongly against the grant of an injunction. For example, if it is only arguable that this is not a trade dispute, it follows, as a matter of logic, that it is also, at least arguable, that it is. If so, it must also follow that the respondent to the application can establish a fair case that he was acting in contemplation or furtherance of a trade dispute. The uncertainty in relation to the legal argument, which hitherto had been capable of being exploited on behalf of a party seeking an interlocutory injunction, now leads to its refusal.

65.              The blunt effect of s. 19 can be understood by considering the arguments made by the plaintiff company that the industrial action, whether picketing, or the strike itself, is unlawful, and for the moment taking those arguments at their height. Even if the plaintiff company is correct that the strike by an employee (or industrial action organised by the union) could be established at trial to be a breach of contract, the company could obtain a remedy in damages or perhaps even a permanent injunction at trial but s. 19(2) would have precluded the grant of an interlocutory injunction so long as it could be said that there was a fair case that the defendant was acting in contemplation or furtherance of a trade dispute. Even if the plaintiff company could go further and establish that the combined effect of the 2015 Act provisions and the contract was that there could be no valid trade dispute because the no strike clause had been incorporated into the contract and had the effect of precluding such a dispute from coming into existence until the dispute resolution procedure was operated, s. 19 would still operate to prevent the grant of an interlocutory injunction so long as the conditions in the section were satisfied, as a fair case had been established that the action was in furtherance of a trade dispute. Finally, even if the plaintiff company had established that the picketing was unlawful and therefore tortious, or that there was unlawful inducement to breach of contract, the only remedy for the company would be damages and perhaps a permanent injunction, so long as the conditions of s. 19 applied and precluded the grant of an interlocutory injunction. Section 19 therefore, provides a full answer to the plaintiff company's claim for an interlocutory injunction in this case.

66.              Given the range of arguments addressed in this case, and their detail and sophistication, it is desirable however, to go further and consider whether in the absence of s. 19, the company would have been entitled to the grant of an interlocutory injunction. Like Murray J. and for essentially similar reasons, I do not consider that it would.

67.              In my view this is not a case where the application of the simplest criteria set out in Merck, derived from Campus Oil of arguable case, and balance of convenience, is appropriate. That analysis is best fitted to disputes which it can be anticipated may go to trial, and the criteria are well adapted to holding the balance fairly, and efficiently, pending that trial. The potential impact of a grant of an injunction pending a trial in a case where the plaintiff ultimately fails is mitigated by the undertaking as to damages so that in the event that the plaintiff's claim fails at trial, the defendant will be entitled to an inquiry as to damages on foot of the undertaking as to damages. The inquiry as to damages will cover any damage said to flow from what transpires to have been the wrongful grant of the interlocutory injunction, and may be liberally assessed. See in this regard, the comprehensive discussion in Stephen Gee, Commercial Injunctions (7th edn, Sweet & Maxwell 2021) at 11-038. However, the very fact that it is difficult to conceive of an award of damages on foot of the undertaking in this or any similar trade dispute case if a plaintiff's case were to go to trial and fail, and that therefore, the undertaking as to damages offered by the plaintiff is essentially meaningless, is itself telling. The loss suffered by a union and those wishing to engage in a strike or other industrial action, is loss in momentum, possible support, strategic advantage in timing, not to mention the suspension of the rights of those wishing to engage in that industrial action and recognised in the Constitution, and more, while very real cannot be measured in monetary terms. The case is therefore one which illustrates why this test cannot be applied mechanically and instead shows the need for flexibility identified in the decision in Merck. That is so for a number of reasons.

68.              In NWL Limited v. Woods (The Nawala) (No. 2) [1979] 3 All E.R. 614 ("NWL"), the House of Lords decided that the principles in American Cyanimid could not be applied in an application for an interlocutory injunction in the context of a trade dispute because it was unlikely that there would be a trial on the merits. Accordingly, the Court was obliged to make its best estimate of the strength of the respective parties' case. That decision was approved by Clarke J. (as he then was) in his judgment in Allied Irish Banks Plc v. Diamond [2011] IEHC 505, [2012] 3 I.R. 549, and in the judgment of this Court in Merck.

69.              In this case, the trial judge said that while it was difficult to estimate, it was likely that this case would go to trial. In the event, no trial in the High Court has taken place a year later, and the proceedings are becalmed at a relatively early stage, awaiting in part it appears, the outcome of this appeal. History has shown that it is exceedingly rare for a claim in relation to a trade dispute to go to a full hearing. For the reasons identified by McCarthy J. in Bayzana, it is in the nature of such disputes that they are immediate, time and fact sensitive and the grant or refusal of an interlocutory injunction is likely to be dispositive. A union which is restrained from conducting an industrial action on a largely procedural basis, will find other ways of advancing or resolving the dispute and will have little incentive to proceed to trial in order to demonstrate that an injunction ought not to have been granted, and an employer who fails to obtain an interlocutory injunction will have little enthusiasm for raking over the embers of a past dispute particularly when its remedy may be limited to a claim for damages against its own employees. The default position in applications for injunctions restraining industrial action should be therefore, that it should be assumed that the case will not go to trial, and the NWL/ Merck criteria should apply, unless there are particular features in the claim which may make it probable that the case will proceed to trial on the issue, and in relatively early course. It should be a matter for the party seeking the injunction to displace that presumption.

70.              It is also important to make a proper assessment of the balance of convenience, and in particular the adequacy of damages. In this case the High Court was persuaded that the plaintiff would suffer damage which could not be easily quantified in monetary terms and could not be compensated for by the award of damages. This damage was said to be the damage done to reputation that the company would suffer presumably from being singled out as the object of an industrial dispute in respect of a complaint that was sector-wide. On the other hand, the High Court was persuaded that the damage to the defendants was minimal. The industrial action was not a strike of indefinite duration due to commence on a given day; it was instead a rolling industrial action, initially targeted at specific days on a relatively sporadic basis. Accordingly, it was concluded that an order restraining such action would be de minimis particularly if there was an early trial, and, therefore, it was considered that the balance of convenience favoured the grant of the injunction.

71.              I cannot agree that this was a correct assessment of the situation. It is clear that any industrial action in the nature of a strike and picketing will cause economic loss to a company. However, the plaintiff company here did not rely on that loss, or the fact that the defendants in the case of the union would be immune from any claim for damages, and in the case of the individual defendants might not be a mark for such damages, rather the plaintiff relied on a claim relating to reputational damage. Reputation is protected by the law in relation to defamation. Indeed, in that context the courts have shown a historical reluctance to grant interlocutory injunctions restraining publication in actions for defamation: Bonnard v. Perryman [1891] 2 Ch 269, [1891-94] All E.R. Rep. 965. This principle was adopted in this jurisdiction by Sullivan C.J. in Sinclair v. Gogarty [1937] I.R. 377. See also, for example, Reynolds v. Malocco [1999] 2 IR 203. The claim for damage to reputation, not protected by defamation or another tort, but said to be a loss not capable of being addressed by damages is somewhat ephemeral and will in all but the most exceptional circumstances be too vague to justify interlocutory relief, particularly given the availability of a claim for damages for defamation in an appropriate case. Industrial action occurs from time to time, and does not necessarily reflect on the reputation of the company involved in the dispute. In this case, it could not be said that this was an exceptional case where the risk of damage to reputation was such as to justify the grant of an injunction.

72.              On the other hand, I do not agree that the loss to the defendants by being wrongfully restrained from engaging in industrial action is de minimis. The ability to engage in lawful industrial action is an important right in civic, societal, legal and constitutional terms (and one which is much valued by employees and trade unionists). An important part of the value of any such right is that the individuals concerned choose when to exercise it. It is not, for example, an answer to a person who seeks to exercise their right to free speech in public on a given occasion, to tell them that they cannot express their views now or here and to those they wish to address, but may be allowed to speak much later in a different place and perhaps in private or at least to a different audience. The loss of that opportunity to exercise a lawful entitlement when one chooses to do so is at the level of principle precisely the type of loss which cannot be compensated for by the award of monetary damages, or indeed, even assessed in monetary terms. In the context of an industrial dispute there is the additional consideration that the postponement of an ability to engage in industrial action may empty that right, not just of theoretical, but also practical value. In my view, it was possible to resolve this case on the balance of convenience alone, and by concluding, at a minimum, that it had not been demonstrated that the balance of convenience favoured the grant of the injunction.

73.              That conclusion is if anything reinforced by any assessment of the relative strengths of the parties' cases. This is a particularly appropriate course where the balance is otherwise equal and where indeed the possibility of uncompensatable loss is difficult to assess and where, as here, the issue is one of solely legal analysis which is not dependent on any issue of fact, which may require the assessment of oral evidence. Courts should always be wary about over-confident predictions of the likely outcome of cases which have yet to be argued fully, and there are many cases which were assessed as weak or even unstateable, and which later triumphed. However, faced with the choice between attempting on the one hand, an assessment of the likely course of events in fact, and assessment of damage that is largely speculative if an injunction is or is not granted in a field of activity in which a court may not have any particular expertise, and on the other hand, an assessment of the strength of the respective legal arguments by an experienced judge, it may be preferable to allow the matter to be decided on an assessment of something in which the court is an expert rather than an amateur. In some cases there may be a benefit in providing the parties with the court's preliminary views.

74.              In this case, and without wishing to prejudge legal issues of some complexity, it is my view that the plaintiff company's contentions, while arguable, can certainly not be said to be of such compelling nature as to lead a court to consider that it was safe to grant an injunction on the basis that the likely outcome of the case would be that the industrial action would be found to be unlawful and a permanent injunction would be granted. The plaintiff company's argument involves a number of steps, none of them beyond argument: first, that S.I. 2018/59 is intra vires the 2015 Act in including a no strike clause in the dispute resolution procedure; second, that such a clause has been incorporated in a contract either between the union and the employer or the employees and the employer; and third, that it applies to the dispute in this case and has been breached as to give rise for a claim for breach of contract. If s. 19 had not been applicable and if I considered the balance of convenience was equal, I would not have considered that the plaintiff's case was sufficiently strong to justify an injunction.

75.              In the specific context of the claim for an interlocutory injunction, I should say that I do not think that Daru Blocklaying, P. Elliot and DAA together constitute authority for the grant of an interlocutory injunction in a trade dispute on the grounds of a failure to comply with a dispute resolution process. In Daru, the injunction was granted on the basis that the defendants had failed to discharge the onus of proof upon them of demonstrating full and complete compliance with s. 14 of the 1990 Act particularly in relation to the constituency of persons balloted. In P. Elliot, the injunction sought was refused subject only to an injunction restraining picketing which was not peaceful. The judgment referred to the terms of the dispute resolution procedure and concluded that the particular dispute was covered by the process which had been engaged in pursuant to the registered employment agreement. The court also gave liberty to apply to the employer to renew its application in the event that it was established that the industrial action was seeking to pursue grievances and disputes which had not been the subject of the dispute resolution procedure, but that was obiter, and in the light of the conclusion to which the court had come, it was not necessary to consider how s. 19 might apply in such circumstances. Accordingly, I do not consider this is a firm basis for concluding that the court can grant an injunction restraining an industrial dispute in circumstances where a dispute resolution procedure had not been complied with.

76.              Finally, DAA was a case in which an injunction had been granted but, in that case, once again, the court concluded that it had not been demonstrated that there had been compliance with s. 14 of the 1990 Act in respect of the balloting of those persons who were required to take part in the industrial action. In this regard the plaintiff in DAA succeeded on two grounds. The first was that the union, on whom the onus lay, gave no evidence that the ballot was conducted in accordance with s. 14 of the 1990 Act. Thus, the conditions of s. 19(2) were not met, and the court was not precluded from granting an injunction - this decision is clearly correct, if limited in scope since it should only be rarely that a respondent union fails to address the issue.

77.              The second ground was in relation to the manner in which the ballot was conducted and is potentially of more general application. The plaintiff argued that only SIPTU members of the pension scheme were balloted but that it was inconceivable that all SIPTU members working at the airports concerned would not be called on to take part in the industrial action, therefore not all persons who would be called on to strike were balloted. The court considered that there was an issue as to the entitlement of SIPTU members to participate in the ballot who as firemen, airport police and search crew, it was argued were bound by an industrial dispute resolution procedure precluding strike action until certain procedures had been operated. I would not agree that this latter reason is a basis upon which to find that s. 19 did not apply. The question under s. 19 was whether the action occurred following a ballot favouring a strike and that ballot was held in accordance with the rules of the union as provided for in s. 14. Section 14 is essentially directed at the internal affairs of the union, as set out in s. 14(3) which stresses that the rights and entitlements arising from the secret ballot provisions "are conferred on the members of the trade union concerned and on no other person" and therefore were matters for the members alone.

78.              Insofar as the Court was entitled to consider s. 14 at the behest of the employer for the purposes of s. 19, the question was one of fact - had those members who it was reasonable to believe would be called on to engage in industrial action been given the opportunity of voting on it? Insomuch as compliance with the provision is challenged, it should be approached on the basis that the rule is intended to promote a basic congruence between those who are required to bear the burden of industrial action and those who vote on it. Section 14(2)(a) emphasises that the question is the union's reasonable belief at the time. If the union in that case had reasonably believed that it would call on the fire crews etc. to engage in the action, it was immaterial if in the event they were not in fact called upon to do so, or that such action was or could be contrary to a dispute resolution process. Therefore, unless it was unreasonable for the union at the time of the ballot to believe that those members would be called upon to engage in industrial action, I would not agree that this was a basis upon which to find that s. 19 did not apply.

79.              Section 19 does not envisage a meticulous scrutiny of the manner in which the ballot was actually conducted. However as already observed, the interlocutory injunction in DAA was capable of being upheld on the basis that there was no evidence to discharge the onus on the union to show that the industrial action was in compliance with the requirements of s. 19. It should only be considered authority for this narrow, and largely uncontroversial, proposition. I do not think that on any fair reading of this case taken on its own, or in conjunction with Daru Blocklaying and P. Elliot, it can be understood as support for a more general proposition that a court can, and notwithstanding s. 19 of the 1990 Act, grant an interlocutory injunction to restrain the holding of industrial action in circumstances where it is contended (or even demonstrated) that an agreed dispute resolution procedure has not been complied with.

80.              It is also necessary to address the form of the order made in this case. The order restrained all the defendants from engaging in any industrial action actual or threatened against the plaintiff on foot of the balloting conducted by the union. It was confirmed on the hearing of this appeal, that this order was understood to compel the three named employees of the plaintiff company (and by extension any colleagues to whom notice of the order was given) to continue to work for the plaintiff company at the sites to which they had been assigned on the days of the proposed industrial action.

81.              The amended notice of motion on foot of which the order was sought claimed interlocutory injunctions restraining watching and besetting or picketing and/or trespassing; interfering with access to or from the premises; inciting, inducing or procuring breaches of the employees' contracts of employment; and the erection of placards or issuing of leaflets stating that there was a trade dispute at the premises. These are standard reliefs in trade dispute cases. However, in respect of the individuals (the second, third and fourth defendants), orders of specific performance were sought and were granted requiring them to attend at the place of work assigned to them and perform their duties in accordance with their contracts of employment. It is axiomatic that the circumstances in which a court will make an order for specific performance of a contract of employment are rare and limited, and even more so, where it is sought to make such an order (or grant an injunction having the equivalent effect) on an interlocutory application. This is all the more so where the effect of the order is to override a decision made by an individual to withdraw his or her labour in pursuance of an industrial dispute with their employer. The circumstances where it would be appropriate to make such an order were not explored in argument, and I do not wish to be taken as accepting that it would be appropriate to make an order in these terms even if a case for some form of interlocutory relief had been established, at least without much more detailed argument.

82.              It is also an important principle that where an order is sought restraining somebody from doing something on pain of committal if the order is breached, that the order must specify precisely what the person is enjoined from doing, or is required to do as a matter of fact. Accordingly, even if persuaded that the company had a case for interlocutory relief, I would not have upheld the order in the broad form in which it was framed.

83.              Finally, it is unfortunately the case that this decision cannot resolve some of the long-standing issues in this field. The focus on interlocutory proceedings, and the long-standing suspicion of court proceedings, an unwillingness to depart very far from tried and tested formulae and a culture of seeking to resolve labour relations matters outside the court system, have all contributed to a process where the law is in certain respects unclear. But the endeavour to try and use the law to keep the law out of industrial disputes is one which is inherently unlikely to succeed, and to result instead, perversely, in uncertainty giving rise to litigation.

84.              What is, and has been, lacking are clear provisions establishing the extent of a positive right to take part in industrial action; the limitations on such a right whether by reference to internal union procedures or standard agreements on dispute resolution; and the role of the courts in enforcing any of these matters. There is an underlying persistent lack of clarity as to the place of the law and legal proceedings in the field of industrial relations identified in Goulding Chemicals and which cannot be said to be resolved by the 1990 Act. It should be possible for example to provide a definitive answer to the question of whether industrial action is or should be a breach of contract, and if so what if any remedy is available, or if there are circumstances in which it is not actionable. It should also be possible to provide clear guidance on the nature, status and legal effect of a no strike clause pending the operation of a dispute resolution procedure, perhaps particularly where such a clause is contained in an SEO under the 2015 Act. If the social partners and the Oireachtas are unwilling to address these and other matters by legislation, it will not be surprising if fractious industrial disputes continue to find their way into court. ­­­­­­­­­­­­­­

85.              For the reasons given and for those set out in the judgment of Murray J. with which I fully agree, I would conclude that as the law stood as of the date of the application for an interlocutory injunction, an injunction ought not to have been granted in this case. The order having already been set aside, I would simply allow the appeal from the judgment of the High Court.