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1. This is the Plaintiff's application for Interlocutory Injunctions restraining the Defendants or any person acting in concert with them or with the knowledge of the making of the Orders sought from:-

2. The Plaintiff is a building company which has contracted with Dublin City University to construct a Sciences Block (Block 3) on its campus at Collins Avenue, Glasnevin in the City of Dublin. The contract price is approximately £13 million. Under the contract the date for completion is 14th August, 1998 and the Plaintiff is subject to penalty clauses providing for payment of £30,000 per week in the event of default on its part in performing the contract.

3. This is the second application for interlocutory injunctive relief in these proceedings. The core issue between the Plaintiff and the first defendant (the union) is that the Union objects to the Plaintiff's practice of sub-contracting blocklaying and bricklaying work on its construction sites and of not employing blocklayers and bricklayers directly. When the first interlocutory application was before the court in July 1997 at issue was the employment of three of the Defendants other than the Union and the second Defendant, who is a Union official, on the Glasnevin site and in particular, whether they were employed by the Plaintiff, the main contractor, rather than by a sub-contractor. At the time a sub-contractor M. J. Lambe & Sons Limited (Lambe) was carrying out ground work, substructure and drainage works on site under sub-contract. The first interlocutory application was disposed of by agreement on the basis that the workers involved would resume work on the site as employees of Lambe and the Union would desist from picketing the site pending the resolution of the issues between the parties through the agreed grievance and disputes procedures.

4. A lot has happened between the parties since July 1997 but, for the proposes of this brief outline of the background to the current application, it is only necessary to refer to the following facts. First, Lambe completed the blockwork element of its sub-contract at the end of September, 1997 and thereupon terminated the employment of all bricklayers employed by it on the site. Another sub-contractor, Colm Murphy (Murphy), who has a sub-contract for the block and brick work on the super structure of the building, resumed super structure works at the end of October 1997. Murphy did not re-employ the Union's members who had hitherto been employed on the site. The Union contended that this was in breach of the spirit of the agreement under which the first interlocutory application was disposed of and sought to have its members employed on the site to do the available work. The Plaintiff did not accede to that request. Secondly, on 5th November, 1997 the Labour Court issued its recommendation on a dispute, which had been referred to it in September 1997 in consequence of the agreement reached in July 1997, as to whether the Plaintiff was obliged to give an undertaking that the Union's members who had worked for Lambe on the site would be retained by the Plaintiff when the Lambe sub-contract expired. The Labour Court found that the workers, the subject of the dispute, were employed by Lambe, not by the Plaintiff, and the Labour Court's recommendation was that the Union's claim should not be conceded. The Union rejected this recommendation. By letter dated 7th November, 1997 the Union notified the Plaintiff that the trade dispute with the Plaintiff remained unresolved and that its intention was to engage in a strike or other industrial action.

5. On 17th November, 1997 a picket was placed at the entrance to the site. It is not disputed that five men are picketing the site, three of whom, the second Defendant, George Lamon and Brendan O'Sullivan, are Union officials. It is not disputed that the other two picketers are David Leonard and Michael Deakin whom the Union contends are former employees of the Plaintiff. The Plaintiff contends that the five were joined by the fourth Defendant, Kenneth O'Connor, but this is denied by the Union. There is no evidence that the picket is not a peaceful picket. However, the evidence is that the effect of the picket is that the entrance to the site is being obstructed, and that, while some workers have passed the picket, no work is being carried out on the site whatsoever and the Plaintiff is unable to obtain deliveries of materials.

6. The Defendants contend that they are protected by Section 11 of the Industrial Relations Act, 1990 (the 1990 Act) and that the Court is precluded from granting the relief sought by virtue of Section 19 of the 1990 Act.

7. I have been referred to a Transcript of an ex tempore judgment delivered by Keane J. on 22nd March, 1994 in Nolan Transport (Oaklands) Limited -v- Halligan and Others in which issues similar to the issues which arise in this matter arose. I respectfully agree with views expressed by Keane J. as to the approach to be adopted when the provisions of Section 19 are relied on in answer to an application for interlocutory relief and I propose to adopt that approach.

8. Accordingly, I propose considering first the applicability of Section 19. Sub-section (2) of Section 19 provides:-

9. It seems to me that in applying the foregoing provision I must determine whether three pre-conditions - that a secret ballot was held, that its outcome favoured industrial action and that the requisite notice was given - stipulated in the provision have been fulfilled and, if they have, I must then decide whether the Defendants have established a fair case that they were acting in contemplation or furtherance of a trade dispute and, if they have, I must refuse the Plaintiff's application.

10. Paragraph (f) of subsection (2) provides that, as soon as practicable after the conduct of the ballot, the Union shall take reasonable steps to make known to its members entitled to vote in the ballot -

11. The evidence before the Court as to compliance with the requirements of Section 14 and the rules of the Union is as follows:-

12. There is no evidence whatsoever before the Court as to the outcome of the secret ballot conducted by the Union and, in particular, there is no evidence that the outcome favoured picketing the site. On this ground alone, I am satisfied that there is no evidence before the Court that one of the pre-conditions stipulated in Section 19(2) has been complied with. Therefore, it is not necessary to express any view on whether-

13. Accordingly, the Defendants have not established that they are entitled to rely on Section 19(2) and the Plaintiff's application falls to be decided on the basis of the ordinary principles applicable to applications for interlocutory injunctions, that is to say, the principles set out by the House of Lords in American Cyanamid Company v. Ethicon Limited (1975) AC 396 as adopted by the Supreme Court in Campus Oil Limited v. Minister for Industry and Energy (No. 2) (1983) I.R. 88.

14. The first question which arises is whether there is a fair issue to be tried between the Plaintiff and the Defendants. The Defendants contend that their members, Messrs Leonard and Deakin, are entitled to the protection of subsection (1) of Section 11 of the 1990 Act and that their officials, the first Defendant, and Messrs Lamon and O'Sullivan, are entitled to the protection of subsection (4) of Section 11. Section 11(1) provides:-

15. I do not propose to rehearse in detail the very comprehensive arguments advanced by Mr. Kerr on behalf of the Defendants for the proposition that the picketers are entitled to the protection of Section 11(1) and by Mr. Horan on behalf of the Plaintiff for the proposition that they are not so entitled. Suffice it to say that the nub of Mr. Horan's argument is that, as regards the Union member picketers, the Plaintiff is not "their employer" in the context in which that expression is used in Section 11(1), whereas Mr. Kerr contends that it is, having regard to the definition of "employer" in Section 8 of the 1990 Act which defines that word as meaning, inter alia, "a person for whom one or more workers ....... seek to work having previously worked for that person" . On the evidence before me, I have no doubt that the Plaintiff's contention that the picketers are not entitled to the protection of Section 11 raises a fair issue to be tried between the parties. On the same basis, had the Defendants established compliance with the pre-conditions stipulated in Section 19(2), I would have concluded that the Defendants have established a fair case that they are acting in contemplation or furtherance of a trade dispute. I think it is important to emphasise that, following the decision of the Supreme Court in Westman Holdings Limited v. McCormack (1992) 1 I.R. 151, having concluded that there is a fair issue to be tried between the parties as to whether the protection of Section 11 is available to the Defendants, I express no view whatsoever on the strength of the contending submissions and, as enjoined by the Supreme Court, I proceed now to consider the other matters which arise in regard to the granting of an interlocutory injunction.

16. On the basis of the evidence before me, I do not think that damages would adequately compensate the Plaintiff for loss suffered between now and the trial of the action, if the Plaintiff's application is refused and it succeeds at the trial.. In my view, it is not just the monetary loss which the Plaintiff is likely to incur if it is delayed in performing the main contract with DCU that has to be considered, but also the damage to the Plaintiff's goodwill and reputation if it is perceived to be incapable of completing a large construction contract on time. Moreover, having regard to the size of the project and the likely cost of delay in performing the contract, although this point is not directly addressed in the evidence, I have misgivings as to the availability of adequate funds to meet an award of compensation if the interlocutory injunction is refused and it subsequently transpires at the trial of the action that the Defendants are not entitled to the protection of Section 11.

17. Conversely, if an interlocutory injunction is granted, I am of the view that damages would adequately compensate the Defendants, should they be successful at the trial in respect of any loss suffered due to the injunction being in force pending the trial. Of course, as I am applying the ordinary equitable principles, an interlocutory injunction will only be granted on the usual undertaking as to damages being forthcoming from the Plaintiff. There is no suggestion on the evidence that the Plaintiff would not be able to meet an award of compensation on foot of its undertaking.

18. It was contended by the Plaintiff that, as the inevitable consequence of the picketing is to prevent Murphy's workers working and Murphy fulfilling his obligations under his sub-contract with the Plaintiff, the picketing amounts to an unlawful interference with the Plaintiff's business interests and economic relations and an inducement to breach the Plaintiff's commercial contracts. I reject this contention. There is no evidence whatsoever from which one could infer the type of deliberate interference and intention to injure which are essential ingredients of the type of tortious activity alleged by the Plaintiff.

19. The costs will be reserved.

20. Finally, it is obvious from what has transpired since July last that this matter is not going to be resolved without a plenary hearing. I will hear submissions from the parties as to how I can assist them to get the earliest possible hearing for this matter.