THERE WAS PICKETING by striking Bus Éireann workers at some Irish Rail and Dublin Bus depots last Friday morning, causing significant travel disruption and evoking widespread, though not universal, criticism.
One of the main talking points was the claim that secondary picketing – where striking workers picket a company other than their employer – is illegal.
Is this true, though? Martin McMahon contacted us on Twitter expressing skepticism about the claim, and asked us to check it out.
(Send your FactCheck requests to factcheck@thejournal.ie, tweet @TJ_FactCheck, or send us a DM).
Claim: Secondary picketing is illegal
What was said:
A search on Twitter shows many commenters denouncing secondary picketing as illegal and against the law, in light of Friday’s actions by some Bus Éireann workers.
Before we look at the evidence, this is a quick note to make it clear that this article is about secondary picketing in general. We’re not evaluating the actions of Bus Éireann workers on Friday, or the specific circumstances and details involved in that.
The Law
The relevant piece of Irish law here is the 1990 Industrial Relations Act, which was introduced by then Minister for Labour Bertie Ahern.
Section 11 addresses the issue of picketing. It’s worth presenting the first two sub-sections (of five) in full:
11 (1) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance 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, if they so attend merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.
(2) It shall be lawful for one or more persons, acting on their own behalf or on behalf of a trade union in contemplation or furtherance of a trade dispute, to attend at, or where that is not practicable, at the approaches to, a place where an employer who is not a party to the trade dispute works or carries on business if, but only if, it is reasonable for those who are so attending to 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, provided that such attendance is merely for the purpose of peacefully obtaining or communicating information or of peacefully persuading any person to work or abstain from working.
So what sub-section 2 says, essentially, is that it is legal for striking workers to picket at a company which is not the company they’re in dispute with (i.e. to engage in secondary picketing), but only if they have a reasonable belief that that company is directly helping their employer to frustrate or get around the ongoing industrial dispute.
According to Michael Doherty, a leading expert in employment law, an example of this would be:
Where Employer A is in dispute, and Employer B fulfils the orders of Employer A, in order to try and render the [strike] action futile.
So does this mean that secondary picketing is illegal if it does not meet this requirement of having a reasonable belief that a company is essentially disrupting an industrial dispute?
In short, yes. But to understand that, it’s important to understand something broader about strikes and picketing in Irish law.
According to Michael Doherty, who is Head of the Department of Law at Maynooth University, there is no “right” to take industrial action, as such, in Irish law.
Instead, what the law allows is that workers and unions who take such action are given ‘immunity’ from being prosecuted or sued for acts that would normally be legal wrongs (for example, conspiracy, inducing others to breach contracts, interference with the trade, business, or employment of another, or other torts – legal wrongs – that might occur).
All of this applies once the workers or unions are “acting in contemplation or furtherance of a trade dispute”.
Another, broader requirement of industrial action, including picketing, is that it be preceded by a secret ballot in favour of strike action, and that the employer be given at least one week’s advance notice (Section 19 of the 1990 Industrial Relations Act).
So not only is secondary picketing illegal unless it happens in certain specific circumstances, but all picketing is illegal, unless it happens in certain specific circumstances.
Or more precisely, picketing inherently involves certain activities – for example, encouraging others to stop working and thereby breach their contract of employment – that are ordinarily illegal.
But where they are done peacefully and “in contemplation or furtherance of a trade dispute”, the picketers are immune from the prosecution that they would otherwise be open to.
Where that picketing takes place at a company other than the one involved in the dispute (that is, secondary picketing) a further condition must be met (there must be a reasonable belief that the company being picketed is helping the employer frustrate or circumvent the strike).
Otherwise, the picketers are not protected by Section 11.2 of the Industrial Relations Act.
According to Tony Kerr, barrister and lecturer at the School of Law in UCD, and a leading expert in employment and industrial relations law:
If that condition is not satisfied, the subsection [11.2] does not apply. The Irish courts have always been of the view that picketing is only permitted on the conditions set out in Section 11 [of the Industrial Relations Act]…
There is no right to strike, as such, in Irish law. Many of the activities inherent to striking and picketing (stopping work and breaching your employment contract, encouraging others to stop work and breach their employment contract) are illegal.
But if you picket at your place of employment, under certain conditions (peacefully, and in furtherance of a trade dispute), you are immune from the legal consequences that you would otherwise face.
If you picket at a different company, there is the additional condition that you must have a reasonable belief that that company is directly helping your employer to frustrate or get around your industrial action.
If your picketing meets all these conditions, you are protected from prosecution and civil liability, under Irish law.
If your picketing does not meet all these conditions, you’re not protected from prosecution or civil liability for any illegal activities inherent in that picketing.
All picketing – secondary or otherwise – inherently involves activities that are, “by default”, illegal. However, there are conditions in the 1990 Industrial Relations Act, which provide immunity from prosecution for those activities.
Therefore, on balance we rate the claim – that secondary picketing is illegal – Half TRUE. As our verdicts guide explains, this means:
There are elements of truth in the claim, but also elements of falsehood. Or, the best available evidence is evenly weighted in support of, and against, the claim.
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