The Supreme Court has allowed an appeal by Unite the Union and three employees of H. A. O’Neil Limited, concluding that an interlocutory injunction should not have been granted to restrain industrial action over travel time pay.
The Court’s judgment, delivered by Chief Justice O’Donnell on 6 March 2024, concerned an injunction made by the High Court in March 2023. The Supreme Court had set that injunction aside after a separate High Court order quashed the 2018 Sectoral Employment Order (SEO) underpinning the company’s case. The appeal nevertheless proceeded to decide whether the injunction should have been made under the law as it stood when the application was heard.
The dispute followed a Labour Court recommendation in November 2022 that there was no reasonable basis to recommend Unite and Connect’s claim for a separate travel time payment. Unite balloted members employed by H. A. O’Neil and gave notice of industrial action beginning on 10 March 2023, with further action planned on a rolling basis. The company argued that the action breached the SEO’s dispute procedure, which required steps to be taken before industrial action. Unite argued that the procedure did not cover this dispute or had already been followed through the earlier sector-wide process.
The High Court granted an injunction restraining the defendants from taking industrial action connected to the ballot. The Supreme Court held that section 19(2) of the Industrial Relations Act 1990 prevented an interlocutory injunction where the statutory conditions were met. It found that the ballot favoured industrial action, at least one week’s notice had been given, and there was a fair case that the action was in contemplation or furtherance of a trade dispute. On that basis, section 19 barred the injunction.
The Court also concluded that the injunction would not have been justified even without section 19. It found that the company’s claims about the SEO, the contracts and the dispute procedure were arguable but not compelling enough to support interim relief. It rejected the High Court’s assessment that the effect on the employees and union would be minimal, noting that delaying industrial action can deprive it of practical value.
The Court criticised the breadth of the High Court order, which it said was understood to require the three employees to keep working at assigned sites on strike days. It said it would not have upheld the order in that broad form, and did not decide whether specific performance of employment contracts would have been appropriate in any circumstances.
The SEO had been quashed by consent in separate proceedings in October 2023 on a pensions issue. The Supreme Court said that meant the appeal could not result in an order restraining the defendants under that SEO. It allowed the appeal from the High Court judgment; the injunction had already been set aside.