Supreme Court: High Court should not have granted injunction in industrial dispute

Supreme Court: High Court should not have granted injunction in industrial dispute

The Supreme Court has determined that the High Court erred in granting an interlocutory injunction to a company to restrain its employees from continuing industrial action in light of s.19 of the Industrial Relations Act 1990.

Delivering judgment for the Supreme Court, Mr Justice Donal O’Donnell observed the “simplicity and power of s.19”, finding that: “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.”


Pursuant to a 2011 agreement between the Construction Industry Federation and the trade unions in the construction sector, any entitlement to travel allowance (i.e. the time spent by the employee travelling from their home to the relevant site) would be incorporated into increased hourly rates of pay and no separate payment would be allowed.

In 2018, a sectoral employment order (SEO) was made pursuant to the Industrial Relations (Amendment) Act 2015, which did not on its fact contain any provision for the payment of travel time. S.16(6) of the 2015 Act provided for a dispute resolution procedure in relation to SEOs.

In 2019, the plaintiff union and another union sought increases in pay and a separate travel time payment. Pursuant to the dispute resolution mechanism, the issue was referred to the Workplace Relations Commission, and it was agreed that the issue of travel time would be referred to the Labour Court for investigation. The Labour Court recommended that there was no basis to recommend concession of the claim for travel time.

On 28 February 2023, the defendant union having conducted a secret ballot, wrote to the plaintiff company giving notice of impending industrial action within 10 days concerning the reinstatement of pay for ‘travel time’. The first strike took place on 10 March 2023.

The plaintiff company, a mechanical engineering firm, sought an injunction to prevent its employees from inter alia picketing certain premises, and sought specific performance of the employment contracts of the second, third and fourth defendants, requiring them to attend work. The plaintiff contended that the industrial action had commenced in breach of a no-strike clause in the SEO as the dispute between it and its employees had not been subjected to the dispute resolution mechanism prescribed.

On 23 March 2023, Ms Justice Miriam O’Regan granted the injunction sought restraining any industrial action against the plaintiff on foot of the balloting conducted by the first defendant. An application was made seeking leave to appeal to the Supreme Court.

The SEO in question was quashed in separate proceedings on the basis that it was ultra vires the 2015 Act, leading to the setting aside of the injunction at the conclusion of the application for leave to appeal. Leave was granted nonetheless in light of the importance of the issues involved.

The Supreme Court

The Supreme Court highlighted that s.16(6) of the 2015 Act does not expressly provide that no industrial action should take place unless it has been previously submitted to the dispute resolution procedure.

Turning to the Industrial Relations Act 1990, Mr Justice O’Donnell noted that s.19 of the 1990 Act on its face is an absolute bar to the grant of an interlocutory injunction where the limited conditions set out in the section can be satisfied, and so before any injunction could be granted, it must be established that s.19 does not apply. The Chief Justice further noted that the 1990 Act did not feature in the High Court’s judgment.

The court stated that “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… 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.”

Mr Justice O’Donnell considered that s.19 of the 1990 Act creates a lex specialis in respect of injunctions in industrial disputes, and that the application of the principles in Campus Oil v. Minister for Industry (No. 2) [1983] I.R. 88 prior to consideration of s.19 “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.”

Finding that s.19 provided a clear answer to the application before it, the Supreme Court set out that “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”.

Having determined that s.19 precluded the grant of an interlocutory injunction on the facts before it, the court analysed what the correct position would have been in the absence of s.19. The court examined, inter alia, NWL Limited v. Woods (The Nawala) (No. 2) [1979] 3 All E.R. 614 and Merck Sharp & Dohme Corporation v. Clonmel Healthcare Limited [2019] IESC 65, [2020] 2 I.R. 1 concluding that the plaintiff would not have been entitled to interlocutory relief in any event.

In this regard, the court stated: “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.”

Mr Justice O’Donnell remarked: “There is an underlying persistent lack of clarity as to the place of the law and legal proceedings in the field of industrial relations… 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… 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.”


Accordingly, the court allowed the appeal, determining that as the law stood as at the date of the application for an interlocutory injunction, the injunction ought not to have been granted.

H.A. O’ Neill Ltd v. Unite the Union & Ors [2024] IESC 8

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