If an employer's premises has been picketed, it may apply for an interim injunction on an 'ex parte' basis. 'Ex parte' means that only one party is present in Court - in this case, the employer.
If an interim injunction is granted, it will be for a very short period, following which a hearing will take place at which both sides will be entitled to put forward their case. The court will then decide whether to grant an interlocutory injunction. This is an injunction pending a full hearing of the matter.
In industrial relations disputes, full hearings rarely occur as a settlement will usually be reached between the parties with the assistance of the Labour Relations Commission or the Labour Court. The Industrial Relations Act 1990 sets out the relevant provisions in relation to trade disputes. The following are its main provisions.
Picketing is lawful if it is carried out:
- In contemplation or furtherance of a trade dispute,
- For the purpose of peacefully obtaining or communicating
- For the purpose of peacefully persuading any person to abstain from working.
Section 11(1) of the Act deals with primary picketing and provides that: "It shall be lawful for one or more persons, acting on their own behalf or on behalf of the trade union in contemplation 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".
Only those employees who are members of an authorised trade union are entitled to picket their employer and avail of immunity from prosecution. Non-union members are not entitled to this immunity.
Employees are confined to picketing at their place of work (unless they fall within the secondary picketing exemption below). If picketers enter the property, they may be held liable for trespass or nuisance. It should also be noted that civil immunity is confined to peaceful picketing. An excessive number of picketers may be considered intimidating and may make a picket non-peaceful, thereby taking it outside the protection afforded by the Act.
The object of the picket may only be to communicate information or persuade colleagues not to go into work. Pickets that are not based on these two objectives fall outside section 11. For example, pickets which have as their objective the persuasion of customers not to do business with the targeted business are not covered by section 11 since the objective here is to persuade people to do something other than not turn up for work. The same applies to persuading workers from another business not to complete deliveries or not to collect products.
Secondary picketing is the picketing of a company that is not involved in the dispute. The Act severely limits the right to engage in secondary picketing, allowing it only if the picketers "believe at the commencement of their attendance and throughout the continuance of their attendance that that employer has directly assisted their employer who is a party to the trade dispute for the purpose of frustrating the strike or other industrial action".
The secondary picketers do not have to prove that the company they are picketing actually assisted their employer; it is enough that they have a reasonable belief that this is the case, that they had that belief when they began picketing and that they continue to have that belief.
A company that is subjected to secondary picketing and which is not deliberately frustrating a trade dispute should immediately inform the picketers and their trade union of that fact. This may persuade them to lift the picket. If it does not, it will assist the employer in seeking an injunction to restrain the picket.
Section 14 of the Act sets out the rules for holding secret ballots, and these are particularly important when it comes to secondary picketing. Union members in the primary dispute will have to ballot on holding a picket, but so too will union members in the secondary employment.
The wording of the ballot should be sufficiently clear so that members know what they are voting for or against. Its wording, therefore, should be easily understood. Where industrial action is taken contrary to the results of a secret ballot, there is no immunity from liability nor do those involved enjoy the right of peaceful picketing set out in section 11 of the Act. Accordingly, failure to hold a secret ballot makes it much easier for an employer affected to obtain a pre-trial injunction restraining the industrial action. Conversely, compliance with the statutory requirements on secret ballots strengthens the hand of the trade union when it comes to fighting an injunction application.
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