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Supreme Court Decision Makes It Very Difficult For Employers To Obtain an Injunction To Restrain Industrial Action in the Future

The Supreme Court judgements (of O’Donnell CJ, Hogan J and Murray J) in HA O’Neil Limited v. Unite the Union and others, which were handed down on 6th March 2024, make it extremely difficult for an employer to obtain an injunction restraining picketing and other industrial action going forward. 

Facts: HA O’Neil Ltd (the “Plaintiff Company”) is a mechanical engineering firm engaged in the construction industry. Unite represents workers in the mechanical engineering industry, including employees of the Plaintiff Company. In February 2023, Unite balloted its members employed by the Plaintiff Company and another company in common ownership with the Plaintiff Company. The outcome of the ballot favoured taking industrial action in support of Unite’s stance on travel time payments. Unite wrote to the Plaintiff Company giving it ten days notice of industrial action due to take place. The first strike took place on 10th March 2023, further targeted action was to take place on a rolling basis on dates to be determined and on third party sites where the Plaintiff Company worked.

The Plaintiff Company applied for an interlocutory injunction restraining Unite and named employee defendants (the “Defendants”) from picketing the third party sites and sought certain additional orders. The injunction was granted by the High Court restraining the Defentants from engaging in actual or threatened industrial action on foot of the ballot. The Supreme Court permitted a leapfrog appeal on the basis that the case raised important issues of law in relation to the granting of injunctions in respect of industrial disputes and the application of section 19(2) of the Industrial Relations Act 1990 (the “1990 Act”).

It should be noted that the parties were governed by a Sectoral Employment Agreement (S.I. 2018/59) which contained a dispute resolution procedure and a “no strike clause” stating that no industrial action may take place until the procedure had been followed. The Plaintiff Company claimed that the provision in the SEO meant that no industrial action could take place until the dispute resolution procedure was exhausted and that s.19(2) of the 1990 Act does not preclude the granting of an injunction to enforce that agreement or contract. The Plaintiff Company alleged that section 19(2) of the 1990 Act only applies to applications of an injunction based on the law of tort and not on the law of contract.  

Section 19(2)  provides:

“Where a secret ballot has been held in accordance with the rules of a trade union as provided for in section 14, the outcome of which or, in the case of an aggregation of ballots, the outcome of the aggregated ballots, favours a strike or other industrial action and the trade union before engaging in the strike or other industrial action gives notice of not less than one week to the employer concerned of its intention to do so, a court shall not grant an injunction restraining the strike or other industrial action where the respondent establishes a fair case that he was acting in contemplation or furtherance of a trade dispute.”

Before the hearing of the case by the Supreme Court, the SEO had been quashed in separate proceedings and the interlocutory injunction was lifted at that time. It was agreed for the Supreme Court case to proceed due to the importance of the issues that arose in the case.


The Supreme Court allowed the appeal and held that the interlocutory injunction should not have been granted. However, the judgements went much further and set out the approach that the High Court should take in the future when considering an application to retrain industrial action.

The Supreme Court found that s.19(2) of the 1990 Act provides an absolute bar to the granting of an interlocutory injunction restraining industrial action once the conditions of the section are met. It held that s.19(2) should not be narrowly interpreted and that it is not confined to injunction applications based on the law of tort but also applies to those based on the law of contract. The Supreme Court held that the existence of a “no strike” clause does not prevent employees from participating in a secret ballot or from a trade dispute existing.

It was held that it is for the trade union to establish that s.19(2) applies in respect of an injunction application. The trade union must establish to the satisfaction of the court hearing the application that –

It is not sufficient of the plaintiff employer to establish a fair case to the contrary to disapply s.19(2).

The Supreme Court noted that it is very rare that the case, on which an injunction application restraining industrial action is based, will ever go to trial.  O’Donnell CJ held that

The default position in applications for injunctions restraining industrial action should be therefore, that it should be assumed that the case will not go to trial, and the NWL/ Merck criteria should apply, unless there are particular features in the claim which may make it probable that the case will proceed to trial on the issue, and in relatively early course. It should be a matter for the party seeking the injunction to displace that presumption.” (Para 69)

The criteria in NWL/Merck requires the Court to make its “best estimate of the strength of the respective parties’ case” and goes further than the Plaintiff simply proving that there is a “stateable” case. This is even where it has been decided that s.19(2) does not apply.

Interestingly the Supreme Court found that the freedom to associate and form trade unions as guaranteed by Article 40.6.1º is only given real meaning by safeguarding the entitlement to take part in industrial action and to be able to choose when and where to exercise it. The loss of such an opportunity to exercise this entitlement cannot be compensated by a monetary award. Murray J. held that the High Court judge should consider the interference an injunction would have on this constitutional right, particularly when determining the balance of convenience.  

Takeaway for Employers– This Supreme Court decision will make it extremely difficult for employers to obtain an injunction to restrain industrial action in the future and alternative reliefs and action may need to be explored by employers in such circumstances.




Authors – Anne O’Connell, Jane Holian

26th April 2024

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