TOWARDS THE “JUST” STRIKE? SOCIAL WELFARE PAYMENTS FOR PERSONS AFFECTED BY A TRADE DISPUTE IN THE REPUBLIC OF IRELAND
| Author | Robert Clark |
| DOI | http://doi.org/10.1111/j.1468-2230.1985.tb00868.x |
| Published date | 01 November 1985 |
| Date | 01 November 1985 |
TOWARDS THE “JUST” STRIKE? SOCIAL
WELFARE PAYMENTS FOR PERSONS
AFFECTED
BY
A TRADE DISPUTE IN THE
REPUBLIC
OF
IRELAND
INTRODUC~ON
WHILE the Irish legislature has traditionally followed the neutrality
principle’ in restricting the availability of social welfare payments
to persons engaged in a trade dispute: recent legislative changes in
the Republic of Ireland, which are unique in the common law
world, suggest an affirmative answer may be given to the question;
can a person receive a minimum statutory entitlement while
involved in a trade dispute without leaving the state open to the
charge that it is sponsoring industrial chaos? The neutrality principle
itself is singularly inappropriate as a rationalisation for the trade
dispute disqualification: neutrality can only make sense
if
the
combatents are
de
jure
equal, based as it is on notions of comity
and equality. The employer, unlike the worker, is not likely to
seek financial support from the state during the currency of the
dispute.
The fact that the trade dispute disqualification may assist an
employer in circumstances where the equity of the situation favours
the worker was recognised by one Dail Deputy when he said
“if
it
is fair to say that the social welfare laws should not prolong strikes
or assist strikers, then it is equally fair comment that the law
should not be used to help an employer to impose detrimental
working conditions on his
employee^"^
The lessons to be gathered from the Irish experience are not
only of great interest, the decisions already handed down serve to
provide further evidence invalidating the view that there is
necessarily a correlation between state support for strikers and
increased strike a~tivity.~
TRADE
DISPUTE DISQUALIFICATION
IN
IRISH
LAW
The provisions in Irish social welfare law governing financial
support for strikers and their families closely resemble those that
have evolved in the United Kingdom. This is hardly surprising,
For
details and criticism
of
this principle see Gennard,
Financing Strikers
(1977)
pp.10-13;
Ogus
and Barendt,
The Law
of
Social Security
(1982) pp.119-120; Calvert,
Social Security Law
(1978) pp.146-149. The leading decision is
R(U)
1/56, reproduced in
Calvert,
Cases
and Materials
on
Social Security Law
(1979) pp.83-84.
Social Welfare
(No.
2) Act 1982
(No.
23 of 1982), brought into operation by the
Social Welfare
(No.
2) Act 1982 (Commencement) Order 1982
(S.I.
No.
308 of 1982).
See also the Social Welfare (Social Welfare Tribunal) Regulations 1982
(S.I.
No.
308 of
1982).
337
Dail Debates
col.
2626 (Deputy Pattison).
The most expansive empirical survey completed to date casts doubt on this
correlation: Duncan
&
McCarthy [1974]
Br.
J.
of
Industrial Relations
26.
659
660
THE MODERN LAW REVIEW
[Vol. 48
given the historical relationship between the two jurisdictions.
Indeed, section 87(1) of the National Insurance Act 1911; the
foundation upon which the trade dispute disqualification was
subsequently built: was in force in Ireland when the Irish Free
State came into being in 1922. Both the National Insurance Act
1911 and the Unemployment Insurance Act 1920: also in force in
the Irish Free State, were repealed by section 66 and Schedule
5
of
the Social Welfare Act 1952,8 a consolidation measure which
provided in section 17(2)
“A person who has lost employment by reason of a stoppage
of work which was due to a trade dispute at the factory,
workshop, farm or other premises or place at which he was
employed shall be disqualified for receiving unemployment
benefit
so
long as the stoppage of work continues, except in a
case where he has, during the stoppage
of
work, become
bona
jide
employed elsewhere in the occupation which he usually
follows or has become regularly engaged in some other
occupation.
”
This “geographical test”g was amended by the Social Welfare
(Miscellaneous Provisions) Act 1967,‘O which added the following
proviso to section 17(2) of the 1952 Act:
“Provided that the foregoing provisions of this subsection shall not
apply to a person who:
(a) is not participating in
or
financing or directly interested in
the trade dispute which caused the stoppage
of
work, and
(b) does not belong to a grade or class
of
workers of which,
immediately before the commencement of the stoppage,
there were members employed at his place
of
employment
any of whom are participating in or financing or directly
interested in the dispute.’’
This 1967 Act meant that Irish law on unemployment benefit for
strikers was identical to that which operated within the United
Kingdom. Although the “financing” provision and the requirement
in
(b),
the “grade
or
class” requirement, have been repealed in the
United Kingdom,” thereby implementing a recommendation of the
1
&
2 Geo.
5,
c.55.
Existing provisions on unemployment benefit are to be found in the Social Security
the Supplementary Benefits Act 1976, (c.71) s.8(1) and
S.1.s
1980/1641 and 1983/1433.
See
Ogus
and Barendt,
The
Law
of
Social
Security
(1982), pp.119-129 and 501-507
.
.
.
__
res
ect‘lvely.
‘10
&
11 Geo.
5.
c.30. The trade disuute urovision is found in s.8(1)
of
the Act.
.-
.,
*
No.
11
of
1952..
Gennard,
Financing Strikers
p.15. Chaps.
1.
and 2 provide an excellent summary
of
the evolution
of
the law in the United Kingdom.
lo
No.
18
of
1967,
s.8.
See 229
Dail Debates
Col. 1202 for an explanation from the
then Minister for Social Welfare. See now Social Welfare (Consolidation) Act 1981,
s.142(3).
Employment Protection Act 1975 (c.71) s.lll(1).
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