THE HIGH COURT
		                                       Record No. 2001 No. 16252P
BETWEEN 
MALINCROSS LIMITED 
			PLAINTIFF
AND
BUILDING AND ALLIED TRADES UNION, NEVILLE FARRELLY, EDDIE TRAYNOR, JONATHAN CAMPBELL, PATRICK LOY
			DEFENDANTS
Judgment of Mr. Justice McCracken delivered the 30th day of November, 2001
	This is an application for an Interlocutory Injunction to restrain picketing by the Defendants at a building site at Naul Road, Balbriggan, Co. Dublin.  The background to this Application is somewhat unusual.  
	A company known as Crescent Park Properties Limited is the freehold owner of the lands at Naul Road and by a licence agreement of 3rd July, 2000 granted a licence to the Plaintiff to develop and build an estate of one hundred and thirty five houses on the said lands.  By a sub-contract dated 5th July, 2000 the Plaintiff entered into a contract with B. P O’Sullivan (Leinster) Ltd. (hereinafter called “the Employer”) whereby the employer agreed to build the said hundred and thirty five houses using its own labour force.  The employees of the employer, including the fifth named Defendant, were all members of the Building and Allied Trades Union (hereinafter  called “the Union”) and at some time in early August 2001 the employer dismissed the fifth named Defendant, which dismissal gave rise to a dispute between the Union and its members and the employer.  In furtherance of this dispute the Union and its members, including the second, third, fourth and fifth named Defendants, commenced to picket the site.  Proceedings were taken by the employer against the Union and certain of its employees to restrain the picketing, and by order of my colleague O’Donovan J. made 26th September, 2001 an Injunction was granted restraining the Defendants in those proceedings from inciting, processing, assisting, encouraging or organising members of the Union or others to congregate or assemble at or near the entrance to the site otherwise than for the purpose of peacefully obtaining or communicating information or peacefully persuading any person to work or abstain from working and otherwise than in numbers not exceeding six.  It should be noted that the Order specifically referred to “The Plaintiffs premises at Westbrook, The Naul Road, Balbriggan”, that is, the employers’ premises.  The pickets continued, and there is no suggestion that they did not comply with the terms of the Order of O’Donovan J. 
	There appears to have been some communication between the Union and the Construction Industry Federation on behalf of the employer, but the dispute still remains unresolved.  
	By letter dated 23rd October, 2001 the Plaintiff wrote to the employer stating that it was imperative that the site should reopen in full production by 31st October, and when it became clear this was not going to happen, the Plaintiff wrote again to the employer on 26th October calling on it to vacate the site on 30th October and remove all its plant and equipment, and that the sub-contract was thereby terminated.  Following this letter, the employer apparently removed all its plant and equipment other than a fork lift truck, which was left on the site, and which was subsequently used by the Plaintiff.  After 30th October, although the employer had vacated the site, two Directors of the employer, one of whom was a Quantity Surveyor, attended from time to time at the site to measure the amount of work already carried out by the employer, for which it was agreed the employer would be paid.  These attendances continued up to the 22nd November when agreement was reached on a final account between the Plaintiff and the employer, and there will therefore be no need for any further attendances on behalf of the employer at the site.  In addition, the Plaintiff purchased the said fork lift truck from the employer, and I have no doubt that there is now no work being carried on at the site by or on behalf of the employer or any of its employees.  Notwithstanding this, the Union and its members have continued to picket the site.
	Mr. Kerr, on behalf of the Defendants, has made it quite clear that his clients are not relying on the provisions of Section 11(2) of the Industrial Relations Act 1990, and are not seeking protection from the court for secondary picketing.  The Defendants do, however, seek to justify their right to picket on three grounds which I propose to consider individually.
1.	Construction of Section 11(1) 
	This Section provides that it is lawful in contemplation or a furtherance of a trade dispute to attend at “a place where their employer works or carries on business”.   While the Defendants accept that the employer no longer works or carries on business at the site, they say that on the proper construction of this phrase, they are entitled to picket at any place where the employer did work or carry on business in the past.  While to my mind this is a very strained construction of the present tense used in the section, Mr. Kerr referred me to the Dáil Debates which disclose that an amendment was moved to add the words “or, at the commencement of the dispute, had normally worked or had normally carried on business”.  This amendment was withdrawn following a statement by the then Minister for Labour that that situation was already covered by the wording used, which the Minister called “The historic present tense”.   While I do not think that the views of the Minister in a Dáil Debate should determine the construction of this section, nevertheless I think I can have regard to it in determining whether, at the hearing of this action, there is a fair question to be tried, as to the construction of the section.  However, I have no doubt that the hearing of an Interlocutory Injunction is not the time to enter into a detailed discussion on grammar.  I am satisfied, however, that there is a fair case to be tried as to the construction of Section 11(1). 

2.	Section 19(2)
	The defendant argues that the court cannot grant an Interlocutory Injunction because of the provisions of this sub-section which reads:-

“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”.

	I am satisfied that the Union in the present case held a secret ballot in accordance with its rules, and that those rules were as provided for in Section 14 of the Act, and I am also satisfied that the Union gave notice of not less than one week to the employer of its intention to take industrial action.  I am also satisfied that the Union has established a fair case that it was, and I would emphasise that the sub-section uses the past tense, acting in contemplation or furtherance of a trade dispute, as there was clearly a trade dispute in existence at the time the ballot was held.
	The problem for the Defendants exists by reason of the wording of the proposal which was balloted on.  The ballot paper read:-
“SUBJECT: to engage in industrial action with P. P. O’Sullivan (Leinster) Ltd., including the placing of pickets on company site at Naul Road, Balbriggan”.

	The ballot paper then contained boxes headed “In Favour” and “Against”.  There is no doubt that this authorised the original picketing, as it would be quite clearly understood by all members that the site in Balbriggan was what was referred to as “the company site”, as it was the site where the employer was carrying on business.  The question remains whether this ballot authorised the placing of pickets at the site when it ceased to be the company site of the employer.  
	The extent to which the proposals in the ballot had to identify the nature of the industrial action under Section 19(2) was considered by the Supreme Court in G & T Crampton Ltd. v. Building & Allied Trades Union & Ors [1998] 1 ILRM 430.  In that case the ballot had simply been “on proposal to engage in strike or other industrial action” without specifying the nature of the strike or industrial action at all.  In dealing with this issue Hamilton C. J. said at page 437 :-

“I am satisfied that the Affidavits disclosed a fair question to be tried on a question as to whether or not the provisions of Section 11(1) applied to the Defendants in the proceedings and also that a number of questions stand to be determined with regard to the interpretation of the provisions of Section 14 and Section 19 of the Industrial Relations Act and the questions to be raised there as to whether or not in the conduct of a ballot a Union should be required to particularise the nature of the industrial action for which they seek support of their members and that the proposal being put before those members should particularise such action and (I am expressing no concluded view on it), whether it is not sufficient to comply with the requirements of such  act merely to have a ballot favouring a strike or other industrial action without particularising the nature of the industrial action to be taken by the Union and for which they seek their members approval.  This is a serious issue to be tried in this case because undoubtedly from an examination of the ballot papers, first of all, no actual proposal was placed before the members and even if it were interpreted that the heading “Ballot on proposal to engage in strike or other industrial action” was held to be a sufficient proposal, the question arises again as to whether it is in compliance with the provisions of Section 14 and Section 19 of the Act.”

	He then concluded:-

	“That being so I am satisfied that there are two issues to be tried in this case 	that have been raised by the Plaintiff in these proceedings and I am satisfied 	that there is a fundamental issue with regard to the interpretation of 		Sections 14 and 19 of the Act and that the learned Trial Judge was entitled to 	come to the conclusion that the condition precedent to the implementation of 	Section 19 was not established.”
U	Unfortunately, this case never proceeded to a full hearing, and therefore these matters were not determined, but in my view the issues which arise in the present case are almost identical to those that arose in the G. & T. Crampton case.  The sufficiency of the secret ballot is clearly a condition precedent to the right of the Defendants to resist an Interlocutory Injunction under Section 19(2).  While the members of the Union clearly authorised strike action at the employers’ premises, and therefore direct strike action against the employer, I think there is a serious issue as to whether that in itself is sufficient to justify strike action in relation to what were once the employers’ premises but no longer remain so.  The purpose of the Act would appear to be to ensure that, if the Union is entitled to the protection of Section 19(2), then it must have the clear support of its members.  I think there is a serious issue to tried, but no more as to whether the picketing of the Plaintiff’s premises once the Defendant has left those premises is authorised  by the ballot, and until that question has been determined, in my view the condition precedent to Section 19(2) has not been established by the Defendants.

3.	TRANSFER OF UNDERTAKING
	The Defendants also contend that, even if the employer has ceased to have any function in relation to the site, nevertheless there has been a transfer of undertaking from the employer to the Plaintiff within the meaning of the Directive 77/187/EEC as amended by Directive 98/50/EC.  This is a very complex matter which would require a great deal more evidence than is before me, and in any event in my view is not a matter to be determined on an Interlocutory Application.  The whole relationship between the employer and the Plaintiff would have to be investigated in detail, both in relation to the formation of the original contract and in relation to its termination.  It is possibly an arguable point that both were successfully pursuing the same economic activity, namely the development of a housing estate on the site, but it is undoubtedly a matter for the ultimate hearing of the action. 
	Accordingly, as I have determined that there is a bona fide dispute as to whether the preconditions of Section 19(2) have been complied with, the Defendant is not entitled to rely upon the subsection (2) to prevent the grant of an Interlocutory Injunction.  In those circumstances, I then have to apply the ordinary principles as laid down by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy [1983] IR 88.  
	If I refuse an Injunction and it is ultimately held that the Plaintiff was ultimately to succeed, I am quite satisfied that the Plaintiff would suffer irreparable loss and damage.  The Plaintiff has entered into contracts with purchasers of 28 different houses, and would be unable to complete those contracts.  Quite apart from its loss of profits on the contracts, which would probably be quantifiable, the Plaintiff might well also be liable in damages to the 28 purchasers, and its reputation as a developer could be seriously affected.  On the other hand, if an Injunction is granted and the Defendants should ultimately succeed, I think the damage to them would be minimal.  While the Defendants contend that they are  entitled to picket in furtherance of their trade dispute with the employer, they have not demonstrated in any convincing manner just how that trade dispute could be affected by picketing the Plaintiff.  Certainly, any loss or disadvantage which might be incurred by the Defendants would be far outweighed by the enormous damage which would be caused to the Plaintiff should an Injunction be wrongly refused, and I have no doubt that the balance of convenience strongly lies in favour of the Plaintiff.  That being so, on terms that the Plaintiff give an undertaking as to damages, I will grant the Injunction sought.