NOTES OF CASES
| Published date | 01 July 1987 |
| Date | 01 July 1987 |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb01723.x |
NOTES
OF
CASES
THE
LABOUR INJUNCTION, UNLAWFUL MEANS
AND
THE
RIGHT
TO
STRIKE
“THE
Institution has defeated the most serious threat to the trade
union rights
of
public sector workers since G.C.H.Q.”’ was how
the Institution
of
Professional Civil Servants (I.P.C.S.) greeted the
decision in
Barretls and Baird (Wholesalers) Limited
v.
I.
P.C.S.2
Henry
J.’s
judgment contains some important observations on key
aspects
of
the law on industrial conflict in a case which, exceptionally
for the
1980s,
barely concerned the major modifications made to
the law by the Employment Acts
1980
and
1982,
and the Trade
Union Act
1984.
The action arose out
of
a regrading claim made in
November
1984
by the I.P.C.S. on behalf
of
some
630
Fatstock
Officers
(F.0.s)
employed by the Meat and Livestock Commission
(M.L.C.), to which responsibility
for
paying government premiums
on sheep and beef and certain other obligations under the European
Community’s Common Agricultural Policy had been delegated.
The
F.0.s
were based at private sector abattoirs and payment
of
the premiums and export
of
meat could only occur after they had
completed certification
of
the livestock and deadstock concerned.
After a one day strike, on October
8, 1986
and a subsequent ballot
which showed that
77
per cent. of the F.0.s were in favour
of
a
campaign
of
one day strikes, possibly on consecutive days, eight
abattoir owners obtained an
ex parte
injunction restraining the
I.P.C.S. and Duckworth, a union negotiating officer, from
interfering with their business by inducing strike action which
would cause the M.L.C. to be in breach
of
its statutory duties
so
as
to cause them damage. After an
inter parks
hearing in November
Henry
J.
refused to extend the scope of the injunction to cover
Knowles, one of the
F.O.s,
and discharged the original injunction.
THE
LABOUR INJUNCTION
Ex
parte injunctions
The case illustrates the unfair and one-sided effect which the rules
of
procedure
on
ex parte
injunctions have in labour disputes. An
application for
ex parte
relief is only permitted “where the case is
one
of
urgency” (R.S.C. Ord.
29
r.1(2)). The plaintiffs obtained an
injunction by application made over the telephone to Jupp
J.
at
3.30
on Sunday afternoon, October
26.
The necessary “urgency”
may have been based on possible repetition
of
experience of the
“lightning” strike on October
8,
first announced on the BBC’s
I
I.P.C.S.
Bulletin
No.
14/86,
November
24,
1986.
*
(19873
I.R.L.R.
3.
506
JULY
19871
NOTES
OF
CASES
507
Farming Programme at
6
a.m. that day. If
so,
the judicial readiness
to respond to this contingency was in marked contrast to the delay
in the
inter partes
hearing
of
the defendants’ application for
discharge
of
the injunction made two days later, but adjourned for
a week because
of
pressure
of
business. A further
10
days passed
before judgment was given and the injunction discharged.
The union’s hand was stayed, however, for a much longer period
since it undertook not to call any strike action
for
a further seven
days pending the plaintiffs’ decision whether to appeal,
i.e.
until
November 24. This had the effect
of
requiring the union to hold a
further ballot to avoid losing the immunities in the Trade Union
and Labour Relations Act 1974, (TULRA) s.13(1) since the
protection against
loss
of
immunity under the Trade Union Act
1984, s.10 provided by the ballot result declared on October 22
lapsed
if
no strike took place within the following four weeks,
ie.
by November 19. Even the judiciary have now recognised that
industrial action can often only be effective by “striking while the
iron is hot.”3 Removing a union’s ability to deploy strike action as
a tactic for the period involved in
Barretts and Baird
can be an
important factor in the dynamics of any dispute, even where what
is contemplated
is
a series
of
short stoppages rather than an all out
strike.
Parliament made some attempt to prevent this sort
of
injustice
occurring in TULRA, s.17(1). This requires a court, where it is
of
the opinion that the party against whom an
ex parte
injunction is
sought would be likely to claim that he acted “in contemplation
or
furtherance
of
a trade dispute,” not to grant an injunction unless
satisfied that all steps which were reasonable in the circumstances
were taken with a view to seeing that he had notice
of
the
application and an opportunity to be heard with respect to it. This
provision has, however, made very little impact. Even where it is
agreed that a trade dispute defence is likely to be raised, less than
24 hours notice
of
an
ex parte
application has been accepted as
sufficient to comply with the subsection, a totally inadequate period
for preparation
of
a defence. Where a judge is unfamiliar with the
provision, compliance depends on the plaintiff’s lawyers drawing
his attention to it and informing him
of
what steps have been
taken. In
Barretts and Baird
the only notice of the application
given to the union was a message left on its telephone answering
machine after
5
p.m. on Friday, October 24. If that is sufficient
compliance with the letter
of
section 17(1), it hardly meets its
intentions.
Criteria for interlocutory relief
After the
Cyanamid
case4 a court faced with an application for
interlocutory relief has to decide whether the plaintiff has
established that there is a serious issue to be tried and if
so
where
’
Lord
Diplock
in
N.
W.
L.
Ltd.
v.
Woo&
119793
I.C.R.
867, 879.
‘
American
Cyanamid
Co.
v.
Ethicon Ltd.
(19751
A.C.
396.
See
Davies
(1975)
4
I.L.J.
239.
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