G. & T. Crampton Limited (plaintiff) v Building and Allied Trades Union, Denis Farrell, Derek Doyle, Kenneth O'Connor, Patrick McCallion and Neville Farrelly (defendants).

Industrial Action - Picketing of construction site - Application for interlocutory injunctions - Whether picketers entitled to the protection contained in the Industrial Relations Act - Whether plaintiff was employer of picketers - Requirements in relation to secret ballots - Whether requirements fulfilled - Undertaking as to damages - Whether damages adequate remedy - Balance of convenience - Industrial Relations Act 1990 (No 19), sections 11, 14(2) and 19.

The High Court (before Miss Justice Laffoy); judgement delivered 20 November 1997.

Where there was no evidence before the court that the requirements of section 19 of the Industrial Relations Act 1990 in relation to the holding of secret ballots had been complied with, the court could not grant the defendants the protection of the Act and refuse the applications for injunctions. The plaintiff's contention that the picketers were not entitled to the protection of the Act established that there was a fair question to be tried. Damages would not be an adequate remedy in the circumstances for the plaintiff, but damages would be an adequate remedy for the defendants. The balance of convenience lay in favour of granting the injunctions subject to an undertaking in damages.

Roderick Horan BL for the plaintiff; Anthony Kerr BL for the defendants.

Miss Justice Laffoy outlined the facts of the case saying the plaintiff was a construction company which had contracted with Dublin City University to construct a building on its campus the date for completion of which was 14 August 1998. The contract price was £13 million and a penalty clause provided for the payment of £30,000 per week by the plaintiff in the event of default. On 17 November 1997 a picket was placed on the site by five men which obstructed the entrance to the construction site. The effect of the picket was that the plaintiff was unable to obtain deliveries and work ceased on the site.

The plaintiff sought interlocutory injunctions restraining the defendants or any other persons acting in consort with them from picketing the construction site at Collins Avenue, Glasnevin. A previous application had been made by the plaintiff for interlocutory injunctive relief in July 1997 which was resolved by agreement with the first defendant (the union). Miss Justice Laffoy said the core issue between the plaintiff and the union was that the union objected to the plaintiff's practice of sub-contracting block-laying and bricklaying work on its construction sites and not employing block-layers and bricklayers directly.

In July 1997 when a sub-contractor was carrying out works on site a dispute arose as to whether the plaintiff or the sub-contractor was the employer of three of the named defendants. The workers agreed to resume work as the employees of the sub-contractor and the union agreed to cease picketing the site pending the resolution of the issues between the parties through the agreed grievance and dispute procedures.

Miss Justice Laffoy said that when the sub-contractor completed the required blockwork, the employment of all bricklayers was terminated. Another sub-contractor who required bricklayers did not re-employ the union's members who had hitherto been employed on the site. The union sought to have its members employed to complete the work saying the spirit of the agreement reached in July 1997 had been breached. The plaintiff refused. The Labour Court issued a recommendation on 5 November 1997 saying that the workers had been employed by the sub-contractor and the union's claim should not be conceded. The union rejected the recommendation and notified the plaintiff to the effect that the dispute remained unresolved and it intended to engage in industrial action. A picket was placed at the entrance to the site on 17 November 1997.

Miss Justice Laffoy said the defendants relied on section 19 of the Industrial Relations Act 1990 (the 1990 Act), claiming the court was precluded from granting the relief sought and sought the protection of section 11 of the Act. Miss Justice Laffoy considered the applicability of section 19 of the Act. Three pre-conditions had to be fulfilled under the section. It had to be shown that a secret ballot was held, that its outcome favoured industrial action and that the requisite notice of not less than one week had been given to the employer concerned of the proposed industrial action. The court then had to decide if the defendants were acting in contemplation or furtherance of a trade dispute and, if so, the application of the plaintiff for interlocutory injunctions would have to be refused.

Miss Justice Laffoy said that section 14(2) of the 1990 Act related to secret ballots and required that every trade union contain in its rules the comprehensive provisions set out in section 14(2) relating to secret ballots. The court agreed with Mr Justice Keane in Nolan Transport (Oaklands) Limited v Halligan & Others (unreported, High Court, 22 November 1994) where it was stated the onus was on the person resisting the injunction to establish that the provisions of section 14 had been complied with and the court had to be satisfied on the evidence before it that the section had been complied with.

Miss Justice Laffoy considered the evidence before the court in relation to the requirements of section 14. The court concluded that there was no evidence whatsoever before it relating to the outcome of the secret ballot conducted by the union or whether the outcome favoured picketing the site. The court was not satisfied that one of the preconditions of section 19(2) had been complied with. Hence section 19(2) of the 1990 Act could not be relied upon by the defendants and therefore the plaintiff's application fell to be decided on the basis of the ordinary principles applicable to applications for interlocutory injunctions as adopted by the Supreme Court in Campus Oil Limited v Minister for Industry and Energy (No 2) [1983] IR 88.

Firstly, Miss Justice Laffoy considered whether there was a fair issue to be tried between the parties. The defendants contended the picketers were entitled to the protection of section 11(1) and section 11(4) of the 1990 Act.

Miss Justice Laffoy paraphrased the comprehensive arguments advanced by counsel for the defendants saying it was contended on their behalf that the picketers were entitled to the protection of section 11(1) of the 1990 Act as they were workers within the meaning of section 8 of the 1990 Act. It was advanced on behalf of the plaintiff that it was not the employer of the picketers within the meaning of section 11(1) and hence they were not entitled to the protection of the Act. The court concluded that this raised a fair issue to be tried between the parties. In doing so the court expressed no view whatsoever on the strength of the contending submissions.

Miss Justice Laffoy considered the adequacy of damages as a remedy to the plaintiff if the application were to be refused and the plaintiff were to subsequently succeed at the trial. In the court's view the plaintiff's reputation and goodwill in the industry was likely to suffer if it did not complete the contract on time and furthermore there would be a substantial monetary loss incurred by the plaintiff in penalties . The court indicated its misgivings as to the availability of adequate funds to meet any award of compensation that may be made to the plaintiff in that event. On the other hand damages would be an adequate remedy for the defendants.

Miss Justice Laffoy rejected the contention advanced on behalf of the plaintiff that as the inevitable consequence of the picket was to interfere with the sub-contractor in the performance of his sub-contract with the plaintiff, the defendants were unlawfully interfering with the business interests and economic relations of the plaintiff.

Miss Justice Laffoy held the balance of convenience lay in favour of granting the injunctions and made orders restraining picketing at the site subject to an undertaking by the plaintiff as to damages.

Solicitors: A. C. Forde & Co. (Dublin) for the plaintiff; Malone & Potter (Dublin) for the defendants.

This decision was appealed to the Supreme Court which, on 12 December 1997, in an ex tempore judgment, dismissed the defendants' appeal and up- held the decision of the High Court.