The Supreme Court has allowed an appeal by Unite the Union and three individual defendants against an interlocutory injunction that had restrained planned industrial action over travel time payments. The court’s judgment, delivered by Justice Brian Murray on 6 March 2024, explains why the injunction should not have been granted. It did not determine the underlying dispute at a full trial.
The plaintiff, H.A. O’Neil Limited, provides building services works. The proposed action included picketing at third-party properties where the company had contracts. Unite sought a separate payment for the first hour of travel to construction sites. The company relied on a 2011 agreement under which Unite, Connect and an employers’ association agreed that a first-hour travel allowance would be reflected in increased standard hourly rates.
The dispute was referred to the Workplace Relations Commission and Labour Court. The Labour Court recommendation, issued on 8 November 2022, did not recommend granting the claim. Unite later balloted members employed by the plaintiff and a commonly owned company. The ballot supported industrial action, and on 28 February 2023 Unite gave notice under section 19 of the Industrial Relations Act 1990. The High Court granted an injunction on 23 March 2023, accepting in effect that the action might breach a dispute resolution procedure in a Sectoral Employment Order (SEO).
By the time the appeal was heard, the parties agreed that the injunction should be set aside because the SEO had been quashed in separate proceedings involving different parties. The Supreme Court nevertheless decided the appeal because of the general importance of the legal questions.
Justice Murray concluded that the defendants had established the requirements of section 19(2): the ballot and notice requirements were met, and there was a fair case that the proposed action was in contemplation or furtherance of a trade dispute. He held that section 19(2) can apply even where an employer’s claim alleges breach of contract, and that an agreed dispute procedure does not, by itself, mean there is no trade dispute. The court also rejected the argument that members bound by such a procedure could not vote in the ballot.
The judgment did not finally decide whether the SEO could lawfully impose a restriction on industrial action or whether it applied to this dispute. It also acknowledged an arguable case that the proposed action could breach contract, while concluding that the employer’s case for an injunction was not sufficiently compelling. The Supreme Court allowed the appeal, agreeing with the Chief Justice and Justice Hogan. The supplied judgment excerpt does not set out the Court’s formal order beyond that conclusion.