This case (which has been subject to appeals - see [2014] IEHC 360; [2015] 26 ELR 173 (HC); [2016] IECA 338 (CA); : [2017] IESCDET 22 (SC)) illustrates the interaction between the closed shop and the Constitutional right to work. It demonstrates that while a union is entitled to approach an employer and ask that employer to engage only union members, and the employer is entitled to enter into an agreement with the union to that effect, the union cannot then wrongfully refuse membership to a qualified applicant and yet enforce the closed shop.

The plaintiff in this case was a block layer who had been a member of the first defendant, the building and Allied trades union (BATU) throughout the 1980s working in the Limerick area. During this time he worked either as a builder’s direct employee when he was subject to PAYE income tax for the duration of any particular job, or as an independent subcontractor under the revenue Commissioners C2 scheme.

He then worked abroad for a number of years. He did not pay his union dues to BATU during his absence which caused his union membership to lapse.

On his return to Ireland in 1997 he sought to resume his membership of BATU. He felt that his previous membership of BATU should have led to a simple resumption of his previous membership, but he was told that he had to reapply, and that as part of his application he must furnish a letter from the revenue Commissioners confirming that he did not hold a C2 subcontractor certificate.

By this time, BATU took a less indulgent approach to those who operated as independent contractors, and refused to admit them into membership. The union rules provided that “a person . . . who is self-employed may not be a member of the union”.

Furthermore, BATU had reached agreements with builders in the Limerick area, that they would employ only BATU members as blocklayers.

For over 2 years Mr O’Connell objected to having to furnish a letter from the Revenue Commissioners confirming that he did not hold a C2 subcontractor certificate. He gave various reasons for this refusal. He asserted that the Revenue had told him that he did not have to give such a letter, that it was a breach of his right to privacy as he would have to provide his RSI number and that the union failed to draw his attention to any particular BATU rule which required an applicant for membership to furnish such a letter. However, the true reason for his refusal to supply such a letter only became clear during the course of the trial when he admitted under cross examination that during that time he in fact held a C2 subcontractor certificate and could not therefore have provided the required letter from the Revenue unless he gave up the C2 certificate. This he was not prepared to do.

In the meantime, relations between Mr O’Connell and BATU officials were fraught. This culminated in the institution of proceedings by BATU against Mr O’Connell, in which BATU sought an injunction against Mr O’Connell, and the institution of personal injuries proceedings by Mr O’Connell against the second defendant in these proceedings, Mr Morris, the union representative in Limerick.

Also during this time, according to Mr O’Connell, one of the union officials came onto the site and told the rest of the block layers to stop working immediately until Mr O’Connell was evicted from the site.

In October 1999 Mr O’Connell’s C2 certificate lapsed and he did not renew it. He then obtained the required letter from the Revenue and applied for union membership. He was granted probationary membership of the union from 1 November 1999 to 31 December 1999 subject to certain conditions including that all arrears of union dues would be paid, that he would not in future make any contact directly with Mr Morris at his home, and that all his dealings with BATU would be conducted through its Limerick branch.

During this time, a BATU official visited a site where Mr O’Connell worked and told him that he was in breach of BATU rules but did not tell him how. He resigned from this job as he did not wish to cause the employer trouble with BATU.

Mr O’Connell’s probationary membership lapsed in December 1999. He did not however become a full member of BATU. The union maintained that this was because he had never sought his membership card.

After this time, BATU officials informed employers that Mr O’Connell did not hold a BATU membership card. On one occasion, he was permitted to complete the particular job, but was not re-engaged for other jobs by that employer when other blocklayers were re-engaged. On another occasion, he was dismissed because he did not have a BATU membership card and the employer did not wish to breach the closed shop agreement.

Mr O’Connell claimed damages for wrongful interference with his contractual relations, inducement of breach of contract, intimidation, breach of his constitutional right to work and his right to earn a livelihood. Mr O’Connell commenced his claim against the union and its officials in 2002 and joined the Construction Industry Federation (CIF) to the proceedings as the 5th defendant in 2012.

Mr O’Connell succeeded in the High Court before Ryan J who held as follows:

(1) A person has a constitutional right to associate and dissociate; a trade union or other association has similar rights. BATU was not obliged to admit Mr O’Connell as a member.

(2) BATU was legally permitted to approach employers individually or collectively through the CIF to make it a condition of employment that block layers be members of the union. The CIF was legally permitted to recommend to their members that they introduce such an employment term and builders were entitled to do that.

(3) BATU was not entitled to have Mr O’Connell removed from a site where he was employed on the ground that he was not a member. The union could not legally instruct or encourage its members to walk off unless Mr O’Connell was dismissed.

(4) It was and is wrongful under the Constitution as well as at common law for a union to operate a closed shop policy but refuse a qualified person membership, subject to exceptional circumstances which did not arise in this case.

(5) Mr O’Connell’s claim succeeded against BATU and its officials for breach of constitutional rights, conspiracy and intimidation.

(6) The claim against the CIF was statute barred. Furthermore, there was no evidence against the CIF in conspiracy or other legal wrong.

BATU and its officials appealed to the Court of Appeal and Mr O’Connell cross appealed in respect of the findings with regard to the CIF.

The Court of Appeal (Peart J, Finlay Geoghegan J and Hogan J concurring) held as follows:

(1) BATU was entitled to approach employers in an effort to get them to agree that it should be a condition of employment that block layers be members of BATU; it was permissible for employers to agree with BATU that they would employ only block layers were members of a particular union, being in this case BATU.

(2) It was impermissible for BATU to wrongfully refuse membership to a person who applied to join, and who met the criteria for membership, or otherwise to wrongfully prevent him from joining the union.

(3) There was nothing unlawful in BATU requiring a letter from Revenue stating that Mr O’Connell did not hold a C2 certificate as a condition of membership, given the criteria under the rules for membership. Until Mr O’Connell supplied the requisite letter, far from being wrongfully excluded from membership, he was simply ineligible for membership at that time. Therefore, the findings of the High Court in relation to this period (i.e. 1997 – 31 October 1999) could not stand.

(4) There was no evidence from Mr O’Connell or from anybody on his behalf to support a conclusion that during the probationary period (i.e. from 1 November 1999 – 31 December 1999) anything of an illegal nature was threatened which caused the plaintiff to leave his employment or which caused the employer to terminate his employment during the probationary period. Therefore the High Court findings with regard to intimidation during this time could not stand.

(5) Upon the expiry of the probationary period, under the union rules, the onus lay on the union to complete the application process by making an assessment of his suitability and reaching a decision one way or the other which would then have to be communicated to Mr O’Connell. BATU failed to do this.

(6) There was no evidence of the tort of intimidation following the expiry of the probation period, i.e. after 31 December 1999. One employer was informed that Mr O’Connell did not have a BATU card but that he could finish the job. Mr O’Connell gave evidence that if he was a member of BATU he would have been able to get further work from this employer immediately after that particular job finished. However, this did not speak to the tort of intimidation and harassment. Another employer was informed of the fact that the plaintiff was not a BATU member, and once he was so informed, he let the plaintiff go in accordance with the closed shop agreement. There was no coercion involved.

(7) Where BATU wrongfully excluded Mr O’Connell from membership of BATU after 31 December 1999 by failing to determine his application for membership by not deciding upon it as it was required to do under its own rulebook and in circumstances where he was prima facie qualified for membership, its actions, in informing employers that he was not a member, leading them to dismiss him or not to employ him further because he was not a member of BATU were sufficient to constitute a breach of his constitutional right to earn a livelihood. Insofar as Mr O’Connell suffered losses which were properly attributable to such breach, he was entitled to claim damages.

(8) However, the individual union official defendants were acting in their capacity as officials of BATU and carrying out BATU policy, and while the trial judge held them to be personally liable, their appeal against that finding was allowed, particularly so where any finding of conspiracy and intimidation was not upheld.

(9) Mr O’Connell’s appeal against the dismissal of his claim against the CIF was dismissed.

This case is of particular interest for its confirmation that the closed shop is prima facie lawful; and that in this case it was only when membership of the union was wrongfully refused that enforcement of the closed shop became unlawful.

During the period from 1997 to 31 October 1999, when Mr O’Connell refused to supply a letter from the revenue confirming that he did not hold a C2 certificate, the union’s refusal to grant membership was not wrongful.

The Court of Appeal overturned all findings by the High Court in respect of this period of time, notwithstanding the evidence that during this time, one of the union officials came onto the site and told the rest of the block layers to stop working immediately until Mr O’Connell was evicted from the site. (see paragraphs 54, 55, 83 and 84 of the Court of Appeal judgement in this regard).

This indicates that where an applicant for union membership declines to comply with the lawful conditions for membership, the union can enforce a closed shop agreement against that person.

It is to be noted, however, that Mr O’Connell wished to become a member of the union and that he was not exercising his constitutional right of disassociation. It is unlikely that the logic applying to an applicant for union membership who refuses to comply with the conditions for membership would extend also to a person who does not wish to become a trade union member who invokes his or her constitutional right of dissociation in this regard.

The case is also noteworthy for the fact that the individual trade union officials escaped liability for the breach of Mr O’Connell’s constitutional rights since they were acting on behalf of the union and in pursuance of the policy of the union and they were not guilty of the tort of conspiracy or intimidation.

The Supreme Court has declined to allow Mr O’Connell to appeal to that court against the determination of the Court of Appeal so far as it affected the CIF. The Supreme Court is yet to determine Mr O’Connell’s application to appeal against the other aspects of the Court of Appeal’s decision. Whether this exploration of union membership and the closed shop is yet over remains to be seen.