As the Deputy stated, this is an important section. I should like to put the background to it and my views on the section on the record. Subsection (2) deals with secondary picketing and has three main aims: to clarify the existing legal position so that the law is once again a guide for conduct, to regulate secondary picketing more closely and to define secondary picketing in clearly understood industrial relations terms.
The precise legal position in regard to secondary picketing is unclear but is generally thought to be as set out in the case of Ellis v. Wright (1978) where it was held that for a picket to be lawful there must be a “clearly discernible connection between the premises picketed and the dispute in the sense that the employer or workman affected by the picket is directly connected with the dispute”. This interpretation limits the extent of the protection given to picketing in section 2 (1) of the Act of 1906, but is still vague enough to allow for considerable confusion as to what constitutes legal secondary picketing in particular cases. This is especially so in proceedings for interim and interlocutory injunctions. The danger with this lack of clarity is that the law will fall into disrepute and no longer act as a guide to conduct. Therefore, the clarification provided by this subsection is extremely important for industrial relations practice.
Another aim of the subsection is to regulate secondary picketing more closely and not to extend it. The broad "clearly discernible connection" test of case law will be replaced by a more precise statutory statement on lawful secondary picketing. The subsection provides that secondary picketing will be lawful if, but only if, it is reasonable for the picketers to believe that the second employer has acted in a way calculated to frustrate the strike or other industrial action by directly assisting their employer who is a party to the trade dispute. Merely filling a gap in the market left by a strike-bound employer will not give rise to lawful secondary picketing. The second employer must actively seek to frustrate the strike by direct assistance to the employer in dispute; for example, by filling orders on behalf of the first employer or by providing services to the first employer's customers on behalf of the first employer.
The subsection also changes the basis on which the connection between the first employer and the second employer is judged in secondary picketing, from a mixed company law/industrial relations basis to a straight industrial relations basis. The present test can give rise to complicated questions of company structure such as who controls the company and whether one company is legally related to another in such a way as to be able to bring pressure to bear on the first company to resolve the dispute. The legal relationship between companies, especially in large groups of companies, will not be obvious to picketers or strike organisers. However, under this subsection the picketers will have a simpler question to answer, more directly related to their industrial relations experience, "Is it reasonable to believe that the second employer is acting to frustrate the strike?" The law will thus become a better guide to conduct with workers having a clearer idea of what is and is not lawful in a particular dispute.
In a court hearing an objective test would apply to the reasonableness of the picketers' belief that the second employer had directly acted to frustrate the strike or industrial action. It would not be sufficient for the picketers to rely on a sincerely held personal belief that the employer was acting thus; they would have to show good cause for that belief.
The subsection provides additional safeguards in that picketing must be in contemplation or furtherance of a trade dispute and must be peaceful. Intimidation, breach of the peace, obstruction, trespass, riot and so on would continue to be illegal in the case of secondary picketing as in all picketing. In addition, sections 14 to 19 will apply to secondary picketing so that a dispute undertaken without a ballot and a majority in favour will not give rise to lawful secondary picketing. Also, the second employer will be entitled to a week's notice of the picketing. If this is not forthcoming the second employer will be entitled to seek an injunction against the secondary picketers.
If secondary picketing was outlawed completely employers would have wide scope to circumvent the effects of legitimate industrial action. While employers have a right to make every effort to circumvent the effects of a strike directed against them in a democratic society this cannot be an absolute right and must be balanced by the right of workers to bring economic pressure to bear to further their legitimate claims. Under the subsection only employers who directly involve themselves in the dispute by acting to frustrate the strike will be subject to secondary picketing. In addition, if secondary picketing was outlawed there would be a problem of enforcement with the possibility of creating martyrs. I do not seek to get involved in that.
As Deputies have stated, picketing is a controversial and emotive issue. We spent a great deal of time discussing this issue when preparing the Bill. There has been much pressure on me from the employer side quoting reasonable arguments, from their point of view, to outlaw such picketing completely but, as I have indicated on many occasions, that would be going too far. In fact, that was the main source of employers' lobby and pressure in regard to the Bill and before proposals were circulated to outlaw secondary picketing. Members, particularly those who have experience of these issues, are aware of the depth of feeling there is among employers about this. I have taken the middle ground and set down what I believe to be a fair approach to secondary picketing and that is that it should be permissible where it is reasonable for those workers picketing to believe that the second employer was acting in a way calculated to frustrate the strike by assisting their employer directly.
Were I to accept the amendments proposed I would be loosening up this and moving away from the objective test of having a reasonable belief and a concept of direct assistance which are central to the proposal to regulate secondary picketing in a balanced way. I apologise for taking so much time on this issue but I was anxious to deal with the section which is central to the Bill. We have spent a considerable amount of time seeking a balance in the section. In my view we have found the correct balance, one which, perhaps, neither side will love but it can function and undertake the task I have mentioned.