Advertisement

We need your help now

Support from readers like you keeps The Journal open.

You are visiting us because we have something you value. Independent, unbiased news that tells the truth. Advertising revenue goes some way to support our mission, but this year it has not been enough.

If you've seen value in our reporting, please contribute what you can, so we can continue to produce accurate and meaningful journalism. For everyone who needs it.

FactCheck: Is secondary picketing actually illegal?

We test a claim that spread widely after last Friday’s actions by some Bus Éireann workers.

banner

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.

The Facts

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

MINISTER FOR LABOUR BERTIE AHERN 1991 file photo of Bertie Ahern, who introduced the 1990 Industrial Relations Act, as Minister for Labour. Eamonn Farrell / RollingNews.ie Eamonn Farrell / RollingNews.ie / RollingNews.ie

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]…

Conclusion

PA-30668486 PA Images PA Images

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.

TheJournal.ie’s FactCheck is a signatory to the International Fact-Checking Network’s Code of Principles. You can read it here.

For information on how FactCheck works, what the verdicts mean, and how you can take part, check out our Reader’s Guide here

Readers like you are keeping these stories free for everyone...
It is vital that we surface facts from noise. Articles like this one brings you clarity, transparency and balance so you can make well-informed decisions. We set up FactCheck in 2016 to proactively expose false or misleading information, but to continue to deliver on this mission we need your support. Over 5,000 readers like you support us. If you can, please consider setting up a monthly payment or making a once-off donation to keep news free to everyone.

Close
24 Comments
    Install the app to use these features.
    Mute Karol Doran
    Favourite Karol Doran
    Report
    Mar 23rd 2016, 10:25 AM

    Just don’t let that idiot d’arcy anywhere near him this time

    477
    Install the app to use these features.
    Mute Shane Cormican
    Favourite Shane Cormican
    Report
    Mar 24th 2016, 8:36 AM

    Don’t worry he won’t as he wont want his wife leaving him for a real man

    22
    Install the app to use these features.
    Mute Eyepopper
    Favourite Eyepopper
    Report
    Mar 23rd 2016, 10:37 AM

    Hopefully we’ll get an update on what its like to be a sex symbol.

    166
    Install the app to use these features.
    Mute Meanderingsz
    Favourite Meanderingsz
    Report
    Mar 23rd 2016, 10:48 AM

    The other guy Jerry Bunting, will be doing a lecture in Belfast for the ‘European Young Bar Association Spring Conference’, April 7-9.
    For those who may be interested..

    86
    Install the app to use these features.
    Mute Trevor Beale
    Favourite Trevor Beale
    Report
    Mar 23rd 2016, 10:24 AM

    I wonder will D’Arcy get a ticket!

    84
    Install the app to use these features.
    Mute anthony campion
    Favourite anthony campion
    Report
    Mar 23rd 2016, 2:22 PM

    Wonder will “my wife Jenny and the girls in the office” go to see him

    77
    Install the app to use these features.
    Mute KM TON
    Favourite KM TON
    Report
    Mar 23rd 2016, 10:37 AM

    But he lost the case!! And then walked away! Why is he getting so much exposure here?? Because he has a hurling statue in his office? jeez…

    73
    Install the app to use these features.
    Mute Mark Ryan
    Favourite Mark Ryan
    Report
    Mar 23rd 2016, 11:12 AM

    Because ppl will spend money

    24
    Install the app to use these features.
    Mute KM TON
    Favourite KM TON
    Report
    Mar 23rd 2016, 12:25 PM

    You’re right Mark! People are stupid

    29
    Install the app to use these features.
    Mute Richard F
    Favourite Richard F
    Report
    Mar 23rd 2016, 12:01 PM

    What’s the fascination with this fella he was only doing what he’s paid a fortune to do and lost the case your man is rotten away in prison and this fella is going around the world making millions out of him

    68
    Install the app to use these features.
    Mute IrishGravyTrain
    Favourite IrishGravyTrain
    Report
    Mar 23rd 2016, 10:25 AM

    How many times can they milk this cow.

    43
    Install the app to use these features.
    Mute Mark Ryan
    Favourite Mark Ryan
    Report
    Mar 23rd 2016, 11:13 AM

    You milk a cow every day, twice a day!

    156
    Install the app to use these features.
    Mute Anthony P
    Favourite Anthony P
    Report
    Mar 23rd 2016, 10:33 AM

    €32 a ticket. Good luck selling out that gig.

    35
    Install the app to use these features.
    Mute Adam
    Favourite Adam
    Report
    Mar 23rd 2016, 11:45 AM

    “He visited Ireland last year”? Wasn’t it more like late January this year? Maybe it’s both.

    31
    Install the app to use these features.
    Mute Joe Conlon
    Favourite Joe Conlon
    Report
    Mar 23rd 2016, 12:48 PM

    Hi Adam, I’m going to be a Pedantic Pat for a minute, if you are Chinese then it would be late last year as the Chinese new year starts in February, with that I’m going off to see if I can be pedantic with anybody else, have a good one.

    75
    Install the app to use these features.
    Mute Elaine Shannon
    Favourite Elaine Shannon
    Report
    Mar 24th 2016, 9:00 AM

    I’m assuming these lads are getting paid. Kind of obscene they are getting rich off the back of that poor misfortune Avery isn’t it?

    26
    Install the app to use these features.
    Mute Phantom Arse
    Favourite Phantom Arse
    Report
    Mar 23rd 2016, 10:29 AM

    Are people still interested in making a murderer?

    19
    Install the app to use these features.
    Mute Karol Doran
    Favourite Karol Doran
    Report
    Mar 23rd 2016, 10:42 AM

    Yes.

    94
    Install the app to use these features.
    Mute Anne Clarke
    Favourite Anne Clarke
    Report
    Mar 23rd 2016, 11:47 AM

    Why the difference in price between Galway and Cork?

    15
    Install the app to use these features.
    Mute W1K
    Favourite W1K
    Report
    Mar 23rd 2016, 2:07 PM

    Smaller venue in Galway

    13
    Install the app to use these features.
    Mute Jack Falltrades
    Favourite Jack Falltrades
    Report
    Mar 23rd 2016, 10:27 AM

    He’ll have plenty of work here if he wants it, this country is full of avery’s!

    13
    Install the app to use these features.
    Mute Les Behan
    Favourite Les Behan
    Report
    Mar 23rd 2016, 11:00 AM

    You’re for the birds. Get it, Avery’s, birds?

    “I’ve had my fun and that’s all that matters!”

    74
    Install the app to use these features.
    Mute Jack Falltrades
    Favourite Jack Falltrades
    Report
    Mar 23rd 2016, 12:17 PM

    Love it

    7
    Install the app to use these features.
    Mute Lukey
    Favourite Lukey
    Report
    Mar 23rd 2016, 10:33 AM

    is his partner in crime jerry buting also coming

    9
    Install the app to use these features.
    Mute Meanderingsz
    Favourite Meanderingsz
    Report
    Mar 23rd 2016, 10:49 AM

    Hes booked for the ‘European Young Bar Association Spring Conference’ in Belfast so he may be doing some other ‘personal appearances’

    12
    Install the app to use these features.
    Mute Barry Kelly
    Favourite Barry Kelly
    Report
    Mar 24th 2016, 8:09 AM

    Hope someone asks him about that hurling trophy.

    8
    Install the app to use these features.
    Mute Mondoburley
    Favourite Mondoburley
    Report
    Mar 24th 2016, 8:52 AM

    Just answer the question, are they getting out or wha??? End of….

    7
    Install the app to use these features.
    Mute the phantom
    Favourite the phantom
    Report
    Mar 24th 2016, 7:52 AM

    It’s about time that pro bono pays out!

    4
    Install the app to use these features.
    Mute Tommy
    Favourite Tommy
    Report
    Mar 23rd 2016, 8:06 PM

    Yes!!!!!!!

    4
    Install the app to use these features.
    Mute glenoir1
    Favourite glenoir1
    Report
    Mar 24th 2016, 8:04 AM

    Who cares

    3
Submit a report
Please help us understand how this comment violates our community guidelines.
Thank you for the feedback
Your feedback has been sent to our team for review.
JournalTv
Video Player is loading.
Current Time 0:00
Duration 0:00
Loaded: 0%
Stream Type LIVE
Remaining Time 0:00
 
1x
    • descriptions off, selected
    • captions off, selected
      Next upNext up: https://videoplayer.thejournal.ie/dk0zjpaml/video/upload/v1/cloudfn/articles-with-overlays/v1/thescore/landscape/6769420__6769317__6769286__6769267__6768979__6768893
      News in 60 seconds