Right to Strike
The European Union Social Charter provides for the right to strike. In Ireland, there is no direct right to strike. It exists as a series of negative immunities. There is immunity from certain legal rights of third parties which would otherwise apply in relation to the effects of industrial action. The right is, therefore, indirect in nature.
A strike implies a cessation of work. Collective industrial action includes a wide range of action, short of a complete withdrawal of labour. Under various legislation, a strike does not interrupt continuity for the purpose of individual employment rights. A strike commenced after due notice, causes a suspension of the employment contract.
Where an employee is engaging in a strike, there is no obligation to pay wages or salaries. Where industrial action short of a strike takes place, then a proportionate reduction in wages may be permitted. In some circumstances, the employer may be entitled to refuse to accept the employer’s partial performance’s performance.
Non-selective dismissals for strikes or industrial action are presumptively unfair. Selective dismissals are conclusively unfair. The dismissal of employees for taking part in a strike or industrial action is deemed unfair if one or more employees who took part in the strike are not dismissed or are dismissed and subsequently reinstated.
If employees are dismissed and not re-engaged the dismissal may still be unfair. Regard is had to the reasonableness of the conduct of employer and employee and the extent of compliance by the employer with any applicable dismissals procedures.
The organisation of, or participation in a strike or lockout is not unlawful in itself, provided that no unlawful action is committed in the course of it. It must be undertaken for a legitimate motive. Otherwise, it may be vulnerable to being characterised as an actionable conspiracy.
Many actions that may occur in the course of a typical strike potentially constitute civil and even criminal wrongs. Civil wrongs would entitle the employer (or other third parties adversely affected) to compensation or to a restraining injunction, in the absence of a statutory immunity. Where the acts also constitute a criminal offence, the Gardai may intervene.
Picketing is likely to constitute trespass, nuisance, watching and besetting and /or inducement breach of contract. Trespass includes the use of the public highway outside a premises in a manner inconsistent with the normal implied right to pass and repass. Other industrial action may amount to a conspiracy, intimidation or the inducement of breach of a contract. The employees or union may be sued (by reason of the agency of an employee or an official), in the absence of a statutory immunity.
The Industrial Relations Act grants immunity against actions, which would otherwise comprise civil wrongs subject to compliance with conditions. The potential civil wrongs, which may otherwise arise, are typically economic torts of the type described below. There is no statutory immunity from criminal offences.
Conspiracy is a civil wrong, involving an agreement by two or more persons to do an unlawful act or to undertake a lawful act by unlawful means. Conspiracy may also constitute a criminal offence. Many forms of industrial action involving employees or other parties working in common may constitute a conspiracy.
If persons combine to act in a way so as to intentionally inflict economic or other loss on another, there is a “simple” conspiracy. This so, even if the same act done by an individual alone, would not be unlawful. The tort requires that the persons together have deliberately liberty set out to inflict loss on the third party. This must be the purpose and predominant object of the agreement or their common intention.
This form of conspiracy is well established in the United Kingdom, although it its precise scope is less clear in the Republic of Ireland. Separately, the Irish courts have held that combinations to commit a breach of another’s constitutional rights and to injure third parties are actionable at law.
At common law, justification is a defence to simple conspiracy. It is not available as a defence in respect of “unlawful means” conspiracy). It is a defence to a simple conspiracy if the predominant motive is not to harm another, but to protect one’s own self-interest. Although the scope of justification is broad, it does not cover all exercises of self-interest. Where the action taken is disproportionate, use unjustifiable means or goes to unjustifiable lengths, then the defence is not available
Agreements or actions taken by two or more persons in the furtherance or contemplation of a trade dispute, may constitute a conspiracy giving an entitlement to damages or an injunction to those who suffer loss or damage. Subject to conditions such actions may enjoy statutory immunity. The action must relate to an actual or threatened strike. There must be a link between the dispute and the actions.
It is a tort / civil wrong, knowingly and without justification, to induce a person to breach a contract with another. The other party to the contract has a right of action against the person who has induced or procured the breach of contract. Therefore, in the absence of immunity, those organising industrial action, may commit or cause this civil wrong to be committed, where they induce persons to cease work without giving proper notice or where they persuade an employer to dismiss an employee in breach of contract.
Justification in the context of this tort/ civil wrong is relatively narrow and differs to that applicable to simple conspiracy. Securing one’s own financial advantage, would not generally be sufficient justification for inducing a breach of contract.
A threat or the intimation of a threat of unlawful action is a civil wrong. It is a tort / civil wrong for a person to seek to obtain an advantage, by threatening do something unlawful. The threatened thing may be civil wrong or breach of contract. It is a very serious criminal offence to threaten to do something criminal. Some other threats may also be criminal, even though the threatened thing is not criminal in itself.
Threatening to induce others to breach their contract may constitute the civil wrong tort of intimidation. The civil wrong is made out where the threat results in the procurement of unlawful action in the sense of a breach of contract, such a cessation of work without notice. There is no unlawful action for this purpose and the tort of intimidations is not committed, where there is no breach of contract, such as where employees terminate their employment by giving the due notice.
Third Party Contracts
The immunity extends to inducing breaches of employment contract or threats of such breach. However, commercial contracts, (including those with independent contractors) are not covered. Inducing a third party to breach a commercial contract with the employer is a civil wrong and is not protected by the immunity.
The person so inducing, need not know the details of the contract. An intention to disrupt performance may be sufficient. A mere request or exhortation may not be unlawful. There must be a threat which has caused the breach. There must be a breach of contract. Where the contract is terminated lawfully in accordance to its terms, there is no civil wrong, unless unlawful means are used to disrupt the contract. The breach of contract must be induced by the behaviour concerned.
The common-law justification of inducement of breach of contract is very limited and would be unlikely to be available in most trade dispute cases.
The tort/ civil wrong of interference with contractual relationships is not fully worked out in its scope. In broad terms, it will arise if a person by unlawful means, intervenes in a commercial contract, so that it cannot be performed. The person who commits the civil wrong must know that there was a contract. He need not know its terms. He must cause the breach of the contract either directly, or by causing others to breach it. The intended result must be to cause the contract to breach or disrupted. The breach or disruption must follow from the acts of defendant.
Once there is a substantial interference with performance, the tort may be committed. It is not necessary that the contract is breached, although this will generally occur. Many contracts contain provisions by which they are not breached if they are prevented from being performed by reason of force majeure. This may include industrial action.
Some courts have taken a wider view of the tort/ civil wrong. They may find liability, where a person interferes with a prospective contract or where there is any prevention or hindering of a person in performing the contract, short of a breach. The unlawful interference may constitute a civil or criminal wrong or even a breach of trust.
A wider view extends the tort to cover interference with the public interest. A breach of statute may be actionable in itself as a tort. This requires the court to interpret the legislation as being intended to confer rights on a class of the public, which includes the claimant or that that the claimant has suffered special damage, over and above that suffered by the community generally.
Unlawful Action I
Trespass including sit-ins, are not immunised by the industrial relations / trade dispute legislation. The courts may issue injunctions to prohibit sit-ins in property. Forcible entry legislation may be applicable.
The Gardai have powers at common law, to prevent a breach of the peace. If there are reasonable grounds to anticipate a beach of the peace, the Gardai may take action to prevent the breach.
It is not watching or besetting merely to attend at or near a premise, in order to obtain or communicate information. Each of the above will usually amount to the civil wrong of trespass or nuisance.
The Conspiracy and Protection of Property Act 1875, makes it an offence to break a contract, if one knows or has a reason or cause to believe, that the probable consequence of so doing either alone or combination with other would be endanger human life, cause serious bodily harm or expose valuable property, whether real or personal to damage, destruction or injury. The breach of contract must be undertaken wilfully and maliciously. The offence is rarely prosecuted.
Unlawful Action II
Certain forms of industrial action may fall foul of the Non-Fatal Offences against the Person Act the Act makes it an offence to do any of the following, with a view to compelling a person from doing or abstaining from any act that he has a lawful right to do
- using violence or intimidating a person, a member of his family;
- injuring or damaging property of another;
- persistently following him from place to place;
- watching or besetting premises or a place where he resides, works or carries out business or the approaches to it;
- following one or more persons in a disorderly manner in a public place.
There is immunity from legal action for trade unions, their officers and members in respect of any tort / civil wrong committed by or on behalf of the trade union in contemplation of furtherance of a trade dispute It is a defence to an action for civil wrong that the act was done in the reasonable belief that it was done in furtherance of contemplation of a dispute
An act done by a person in contemplation or furtherance of a trade dispute shall not be actionable on the ground only that—
- it induces some other person to break a contract of employment, or
- 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
- 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.
It is 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
Limits on Immunity
The immunities apply to civil wrongs only.There is no immunity from the criminal law. The immunities apply certain acts which would be otherwise unlawful, in the sense that the employer would have a civil right to take legal action for an injunction or compensation as opposed to having criminal consequences.
Legislation has limited the categories of trade unions, whose members may enjoy immunity from legal action. They must be authorised trade unions. The employee must be a member of the union. The union must represent the employee. The key immunity against liability for civil wrongs applies to trade unions and their members when acting on its behalf.
Most of the immunities are limited to industrial action or strike. In the case of individual disputes, the legislation directs that the existing mechanisms must be first exhausted. This is not satisfied if an employee fails or refuses to follow the existing procedure.
The immunities are not available for “blacking”, non-peaceful picketing or other illegal activity. Action which amounts to a criminal offence is not immunised. Industrial action which does not require the immunity is not invalid of itself.
The strike must not be for an illegal or unconstitutional purpose. A strike which seeks to interfere with constitutional rights, loses the statutory immunities.
An act done in contemplation or furtherance of a dispute is immune from damages or restraint by injunction if it is done to induce some other person to breach a contract of employment or consists of a threats to induce some person to break a contract of employment or a threat by the person to break his own contract of employment or is an interference with the trade business of employment of some other person or the right of some other person to dispose of his capital or labour and as he sees fit.
The protection relates to threatening a breach of an employment contract, but not a commercial contract. There is still a question as to whether threatening to breach direct inducement of a breach of commercial contracts Difficult questions of interpretation arise in relation to the legislation where a commercial contract is breached as a consequence of inducing third-party employees to breach the employment contract.
Secondary action is action taken against targets other than the immediate employer with whom the employees are in dispute. It may, for example, be taken against other employers or trade suppliers. It is commonly an attempt to put general pressure on the employer, in furtherance of the dispute.
Secondary boycotts and picketing are not immunised, even if they are taken in furtherance of a trade dispute. The 1990 reforms have severely restricted the scope of immunities in respect of secondary action.
Secondary picketing is permitted only at a non-party employer’s premises, who has directly assisted the party to the dispute with the object of frustrating the strike or the industrial action. The other employer must have acted out of the ordinary course of his business for the sole purpose of making the primary purpose ineffective
Secondary action also raises the issue as to whether is furthers the objects of the dispute. Some courts hold that it suffices that the persons who act, honestly believe that it furthers the objectives of the dispute. An alternative view requires that the action taken must be reasonably capable of advancing the dispute.
Where a trade union supports a strike organised by another trade union the decision to supported the action shall not be implemented unless sanctioned by the ICTU.
Employees may seek to take indirect action against the employer of another in relation to a dispute between those others. They may, in principle, picket their own employer to urge the employer to bring pressure on the employer involved in the primary dispute. However, the terms of the immunities may not necessarily be satisfied in many such cases.
There must be a trade dispute with their employer regarding the third party’s terms and conditions. The action may be too remote to that dispute. It must be approved by the union and by ballot. In practice, these requirements will rarely be satisfied.
An employee may seek to take direct strike action against the employer of other employees. Although the employees of other employers may take action, in the sense that they may be party to a trade dispute, the restrictions on secondary picketing restrict their ability to picket another employer’s premises.
References and Sources
Employment Law Meenan 2014 Ch. 8
Employment Law Supplement Meenan 2016
Employment Law Regan & Murphy 2009 Ch.18 ( 2nd Ed 2017)
Employment Law in Ireland Cox & Ryan 2009 Ch.2
Irish Trade Union Law Kerr & Whyte 1985 Ch.8 & 9
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Principles of Irish Employment Law Daly & Doherty 2010
Trade Dispute Act 1906
Trade Disputes Act 1982
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Employment Law Yearbook (annual) Arthur Cox
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Irish Employment Law Journal
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Employment Law Nutshell Donovan, D 2016
Employees: Know Your Rights Eardly 2008
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Irish Human Rights and Equality Commission https://www.ihrec.ie/
Health and Safety Authority http://www.hsa.ie/eng/
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Labour Law, Deakin and Morris 5th Ed. 2012
Employment Law, Smith and Wood 13th Ed 2017
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UK Practitioner Services
Tolley’s Employment Handbook 2017 Mrs Justice Slade 2017
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The Employment Law Review 8th Ed. Erika C. Collins 2017
Industrial Relations Law Reports
Employment Law in Context: Text and Materials 2nd Ed. David Cabrelli 2016