O CEARBHAILL v BORD Telecom Éireann

• Jurisdiction: Ireland
• Judge: Mr. Justice Lardner
• Judgment Date: 01 April 1993
• Neutral Citation: 1993 WJSC-HC 4151
• Docket Number: No. 15067p/1991
• Court: High Court
• Date: 01 April 1993

1993 WJSC-HC 4151

THE HIGH COURT

No. 15067p/1991

O CEARBHAILL v. BORD TELECOM EIREANN

BETWEEN

D.S. O'CEARBHAILL AND OTHERS

PLAINTIFFS

.v.

BORD TELECOM EIREANN

DEFENDANT

Citations:

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983

POSTAL & TELECOMMUNICATIONS ACT 1943 S45

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45

CIVIL SERVICE REGULATIONS ACT 1956 S5

CIVIL SERVICE REGULATIONS ACT 1956 S17

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S14

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S15

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S40

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S41

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45(1)(a)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45(2)

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45(3)

GOULDING CHEMICALS LTD V BOLGER & ORS 1977 IR 24

CIVIL SERVICE REGULATIONS ACT 1956 S17(1)(c)(i)

CIVIL SERVICE REGULATIONS ACT 1956 S17(1)

CIVIL SERVICE REGULATIONS ACT 1956 S17(2)

KENNY V AN POST 1988 IR 286

POSTAL & TELECOMMUNICATIONS SERVICES ACT 1983 S45(1)

Synopsis:

EMPLOYMENT

Terms

Alteration - Effect - Employee - Disadvantage - Statute - Terms - Breach - Remedies of employee - Trade union - Authority - Collective agreement - Ballot of members - Misleading information furnished to members - Members not bound by agreement - Members not estopped from disputing authority of trade union - Postal and Telecommunications Act, 1983, s. 45 - (1991/15067 P - Lardner J. - 1/4/93)

|O Cearbhaill v. Bord Telecom Eireann|

TRADE UNION

Authority

Members - Repudiation - Employment - Terms - Alteration - Effect - Employees - Disadvantage - Statute - Terms - Breach - Remedies of employees - Collective agreement - Ballot of members - Misleading information furnished to members - Members not bound by agreement - Members not estopped from disputing authority of trade union to make agreement - (1991/15067 P - Lardner J. - 1/4/93)

|O Cearbhaill v. Bord Telecom Eireann|

Mr. Justice Lardner

1 The Plaintiffs (of whom there are 147) are employees of An Bord Telecom Eireann (which I shall refer to as B.T.E.) and claim to be members of the Engineering Superintendents Panel in that Company. Under the Postal and Telecommunications Services Act1983, (which I shall call "the 1983 Act") B.T.E. took over the provision of certain telecommunication functions and services previously provided by the Department of Posts and Telegraphs, together with certain staff employed by the Department. The Plaintiffs say firstly that prior to 1st January 1984 they were all employed by the Department and were civil servants and secondly they claim now to be entitled to the status of office holders. During their employment prior to and since 1983 they say that they secured promotion through various grades from their starting ranks as trainees and had risen to become Senior Technical Officers, Senior Technicians or Technical Officers and all had become qualified by experience and examination to become members of the Engineering Superintendents Panel. To achieve this they had worked considerable periods of years and had earned promotion from the grades at which they originally entered the service, including appointment as Engineering Superintendent Panelists. In the Company hierarchy (and previously under the Department of Posts and Telegraphs) Engineering Superintendent has been described as a management and supervisory rank, the first level of management rank and the next rank above senior Technical Officers. As a matter of practice, it is said, promotion to the grade of Engineering Superintendent had for many years been made, I think exclusively, from those who were Engineering Superintendent Panelists.

2 Since 1984 certainly, B.T.E maintained a panel of Technical Officers who qualified by experience and examination and who once they secured admission to the panel were considered as Engineering Superintendent Panelists. There were at the commencement of these proceedings over a 150 members of the panel. Promotions to Engineering Superintendent were made, from the panel, as vacancies occurred in accordance with seniority on the panel and each of the Plaintiffs had until the matters complained of, a reasonable chance and expectation of such promotion. B.T.E, in dealing with the staff it took over from the Department of Posts and Telegraphs, was bound by the terms of Section 45 of the Postal and Telecommunications Act 1943. This required (a) that the Defendants should accept into their employment in accordance with the terms of the Act every person who was a member of the staff of the Department of Posts and Telegraphs and was designated by the Minister for employment and (b) that any such person should not while in the Defendants” service receive a lesser scale of pay or be brought to less beneficial conditions of service than the scale or conditions to which he had before the vesting day been subject, save in accordance with a collective agreement negotiated with a recognised Trade Union or Staff Association. In 1988 the Defendants initiated a restructuring of their technical work force in consequence of which the post of Engineering Superintendent was abolished. This was done in contemplation of a new grade of Manager being created. No provision for promotion of the Plaintiffs to this grade was made. It is said that their promotion prospects have thus been materially and detrimentally altered; that these changes were made without any financial recognition of the services they rendered as Engineering Superintendent Panelists prior to the restructuring and that the agreement negotiated by the Plaintiffs” Trade Union with B.T.E concerning this restructuring was unauthorised by the Plaintiffs and that its terms do not properly or at all provide for the Plaintiffs” promotion prospects. In consequence it is claimed that B.T.E. has breached the provisions of Section 45 of the 1983 Act and their contracts with the Plaintiffs and has deprived them of their legitimate expectations of promotion to the grade of Superintendent Engineer, causing them loss and damage. In these circumstances the Plaintiffs claim certain declarations and injunctions, including declarations that they are entitled to be promoted in due course to positions of Engineering Superintendent presently vacant, that as panelists they are Office Holders, that the restructuring proposals are void and ultra vires insofar as they prejudice the Plaintiffs terms and conditions of employment; that they are in breach of Section 45 of the 1943 Act or alternatively that the Plaintiffs are entitled under the restructuring proposals to positions and prospects no less beneficial than those to which they were previously entitled. In support of these declarations they also claim certain injunctions and damages for breach of contract and of statutory duty and for infringement of their legitimate expectations.

3 By their defence B.T.E. admit that the Plaintiffs were formerly civil servants and are now in the employment of B.T.E. and are entitled to rely on the provisions of Section 45 of the Postal and Telecommunications Act1983. They deny there was ever any grade of Engineering Superintendent Panelist or that the Plaintiffs have the status of Office Holders. They deny that the Plaintiffs as members of the panel were entitled to be promoted to the rank of Engineering Superintendent in order of seniority or that BTE ever warranted or represented this to the Plaintiffs or that the Plaintiffs had any legitimate expectations of such promotion. They admit that no Engineering Superintendent vacancies have been filled since 1989 and they plead that this was due to a dispute with the Communications Managers Union. They admit that they engaged in negotiations with the Communications Workers Union as representing the Plaintiffs concerning the restructuring of technical grades but deny that the union had no authority to negotiate on behalf of the Plaintiffs. They admit that they have evinced an intention not to appoint any of the Plaintiffs to the Engineering Superintendent grade and to phase out that grade but deny any intention wrongfully to deprive the Plaintiffs of any of their entitlements. They plead that the agreement with the Union for restructuring the technical grades provides for improved conditions of employment for the Plaintiffs and that the Plaintiffs having accepted the benefits of this collective agreement are estopped from claiming they are not bound by it. And they deny the Plaintiffs have suffered any loss or damage due to any breach of contract or statutory duty or misrepresentation.

4 During the trial it has become clear that the important contested issues between the parties have been whether the agreement for restructuring which was made between the Communications Workers Union and B.T.E. in October 1991 was made with the authority of the Plaintiffs and is binding on them; whether it is a collective agreement within Section 45 of the 1963 Act; whether by its terms it subjects the Plaintiffs to less favourable conditions of employment than previously enjoyed and if so is in breach of statutory obligation or contract.

5 It is clear from the evidence that the transfer of the Department of Posts and Telegraphs telecommunications services and functions to B.T.E. on the 1st of January 1984 afforded an opportunity for the new corporation to reform those services in accordance with what has been called a new philosophy and a programme of new ideas designed to focus the activities of the Corporation and its work-force on the provision of a good service to the public. This praiseworthy purpose was considered to require, inter alia, that B.T.E.'s technical staff (which then numbered approximately 18,000 and now numbers about 13,500) should be radically restructured. After 1988 negotiations in furtherence of this took place between the recognised trade unions and B.T.E. and for reasons...