The Court of Appeal has upheld a finding that the Building and Allied Trades Union (BATU) breached a block-layer’s constitutional right to earn a livelihood by failing to decide his application for full membership after a probationary period. It set aside findings of intimidation and conspiracy and sent the case back to the High Court to assess any damages caused by the breach.
The judgment, delivered by Mr Justice Michael Peart on 17 November 2016, concerned cross-appeals from a 2014 High Court decision following a six-day hearing. The block-layer, John O’Connell, represented himself in both courts.
The court distinguished three periods. It overturned the High Court findings concerning the period up to the end of October 1999, when O’Connell held a C2 subcontractor certificate and was therefore ineligible for BATU membership under the union’s rules. It also set aside findings that he was intimidated or had his right to work breached during his eight-week probationary membership, which ran from November to December 1999.
After the probation ended on 31 December 1999, O’Connell did not receive a full membership card. The Court of Appeal held that BATU’s rules required the union to assess his suitability during probation and decide his application. It found no evidence the assessment had been completed or that a reason for refusing full membership had been given. The court said the union, rather than O’Connell, had responsibility for completing that process.
The High Court had found that union officials threatened employers who hired O’Connell and that the union had engaged in intimidation and conspiracy. The appeal court said the evidence did not establish the unlawful threats required for those torts. Evidence from employers about later jobs showed that some ended because O’Connell was not a BATU member, but did not establish that employers had been coerced. It also set aside the findings against individual union officials, concluding they had acted in their capacity as union officers.
The court nevertheless upheld the finding against BATU itself for breach of the right to earn a livelihood. It relied on the union’s effective control of access to block-laying work in the Limerick area through arrangements with employers, its failure to complete the membership decision, and evidence that employers ended or did not continue O’Connell’s work because he lacked BATU membership. Any damages remain to be assessed in the High Court, where O’Connell must prove actual loss attributable to the breach; ordinary rules, including mitigation, apply.
The court also dismissed O’Connell’s appeal concerning the Construction Industry Federation (CIF). It upheld the finding that his claim against CIF was brought after the statutory time limit had expired.