RAFFERTY v Bus Éireann

JurisdictionIreland
JudgeMr. Justice Kelly
Judgment Date01 January 1997
Neutral Citation[1996] IEHC 33
CourtHigh Court
Docket Number[1996 No. 290 J.R.]
Date01 January 1997

[1996] IEHC 33

THE HIGH COURT

No. 290 J.R./1996
RAFFERTY v. BUS EIREANN
JUDICIAL REVIEW

BETWEEN

MICHAEL RAFFERTY, FRANK WARD AND THE NATIONAL BUS AND RAIL UNION
APPLICANTS

AND

BUS EIREANN / IRISH BUS
RESPONDENT

Citations:

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S18

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S14

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S14(5)

TRANSPORT (REORGANISATION OF CORAS IOMPAIR EIREANN) ACT 1986 S14(6)

O CEARBHAILL & ORS V BORD TELECOM 1994 ELR 54

POSTAL & TELECOMMUNICATIONS ACT 1983 S45(2)

GEOGHEGAN V INSTITUTE OF CHARTERED ACCOUNTANTS IN IRELAND 1995 3 IR 86

BEIRNE V COMMISSIONER OF AN GARDA SIOCHANA 1993 ILRM 1

MURPHY V TURF CLUB 1989 IR 171

R V EAST BERKSHIRE HEALTH AUTHORITY EX PARTE WALSH 1984 3 AER 425

CRESSWELL V BORD OF INLAND REVENUE 1984 2 AER 713

Synopsis:

JUDICIAL REVIEW

Change in duties of bus drivers - whether changes in work practices or changes to conditions of service contrary to s.14 Transport (Reorganisation of CIE) Act, 1986 - whether judicial review available - whether National Rail and Bus Union has locus standi - Held: Judicial review available - union has locus standi in representative capacity - changes constitute changes in work practices - (High Court: Kelly J. - 21/11/1996)

|Rafferty & Ors. v. Bus Eireann|

1

Judgment of Mr. Justice Kelly delivered on the 21st day of November 1996

INTRODUCTION
2

The Transport (Reorganisation of Coras Iompair Eireann) Act, 1986(the Act) brought about major changes in public transport in this country. Prior to it, Coras Iompair Eireann (CIE) had been responsible for public transport both by road and rail within the State. The Act required CIE to form three new companies to be named respectively Iarnrod Eireann - Irish Rail; Bus Eireann - Irish Bus and Bus Atha Cliath - Dublin Bus. As their names imply, Irish Rail was to be responsible for the provision of a railway service within the State and between the State and places outside it; Irish Bus was obliged to provide within the State and between the State and places outside it a passenger service by road except insofar as such a service was provided by the third company, namely, Dublin Bus. It is with the second of these companies, Irish Bus, that this application is concerned.

3

The Act prescribed the principal objects of the bus company which had to be stated in its Memorandum of Association and required that such memorandum be approved by the Board of CIE with the consent of the Minister for Finance and, where appropriate, the Minister for the Public Service. Similar statutory requirements were prescribed in respect of the Articles of Association.

4

Section 18 of the Act provided for a statutory transfer to Irish Bus of all the rights and liabilities of CIE arising by virtue of any contract or commitment (express or implied) entered into by CIE before the vesting day in relation to functions assigned to Irish Bus.

5

It is with Section 14 of the Act that this application is principally concerned. As various provisions of the Section will feature during the course of this judgment, it is desirable that I should set it out in full. It reads as follows:-

6

"14 -

7

(1) Each company shall appoint such officers and servants as the company thinks fit.

8

(2) An officer or servant of a company shall hold his office or employment on such terms and conditions as the company determines.

9

(3) There shall be paid by a company to its officers and servants such remuneration and allowances for expenses as the company thinks fit, subject to, in the case of its Chief Executive (whether that officer is so described or otherwise), the approval of the Minister given with the consent of the Minister for the Public Service.

10

(4) Every person who immediately before the vesting day, is an officer or servant of the Board and who is designated by the Board for employment by a company shall, on the vesting day or with effect from such later day as the Board may, as the occasion requires, appoint in that behalf, become and be an officer or servant, as the case may be, of that company.

11

(5) Save in accordance with a collective agreement negotiated with any recognised trade union concerned, every person who, immediately before the vesting day, is an officer or servant of the Board shall not, while in the service of the Board or a company, as the case may be, receive a lesser scale of pay or be brought to less beneficial conditions of service than the scale of pay to which he was entitled and the conditions of service to which he was subject immediately before the vesting day.

12

(6) Until such time as the scales of pay and conditions of service of such officers or servants are varied by the Board or a company, as the case may be, following consultation and after agreement with recognised trade unions, the scales of pay to which they were entitled and the conditions of service, restrictions, requirements and obligations to which they were subject immediately before the vesting day shall continue to apply to them and may be exercised or imposed by the Board or the Chief Executive of the Board or by the Board or Chief Executive of the relevant company, as the case may be, while they are in its service. As provided in subsection (5) no such variation shall operate to worsen the scales of pay and conditions of service applicable to such persons immediately before the vesting day, save in accordance with a collective agreement negotiated with any recognised trade union concerned.

13

(7) If any of the companies is wound up, the functions of the company shall be exercised by the Board, and the Board shall accept into its employment without interruption of service all officers and servants employed by the company in consequence of subsection (4). Such officers and servants shall resume their employment with the Board on the same conditions of service as applied before the vesting day unless otherwise provided for in a collective agreement negotiated with any recognised trade union concerned.

14

(8) For the purposes of the Worker Participation (State Enterprises) Act, 1977, an employee of any of the companies shall be deemed to be an employee of the Board."

15

In accordance with the terms of the Act the Respondent company was set up and the Minister for Communications fixed the 2nd February, 1987 as the vesting day for each of the three companies formed including the Respondent.

16

Irish Bus has conducted its business since the vesting day. Its core commercial businesses are provincial city services, stage carriage services and what are called "expressway/supa bus" services. Unfortunately, Irish Bus has not been very successful, at least in recent times, from a fiscal point of view. The provincial city services lose over two million pounds annually. Stage carriage services fare no better. It is only the "expressway/supa bus" which is profitable; it makes in excess of two million pounds each year.

17

Irish Bus is projected to incur losses of 26 million pounds up to 1999 before State subvention. Furthermore, the traditional methods of covering losses by State grants will have to be discontinued under European Union law. Because of this unhappy situation, Irish Bus commissioned a firm called Somers & Associates to carry out a review of the company's operations. That firm was asked to identify are as where costs savings could be achieved. It carried out its commission and produced a viability plan dated the 18th June, 1996. Somers & Associates is of the view that Irish Bus will lose 1.7 million pounds after State subvention in the current year and furthermore has indicated that unless there are significant improvements in the companys" cost base, such losses will increase substantially in the coming years.

18

The Applicants accept the financial difficulty in which Irish Bus finds itself. They acknowledge the need for change. But they take issue with certain of the proposals contained in the viability plan, not because they are not justified from an economic or commercial point of view but because they say they infringe their legal rights.

THE APPLICANTS
(a) Michael Rafferty
19

This Applicant is 56 years of age. He is employed as a driver by Irish Bus. Prior to its formation, he was employed in the same capacity by CIE having taken up his post in 1967. He resides in Monaghan town and he works a six-day week from Monday to Saturday. His roster of duties is, like all other rosters involving drivers, known as a "board". He has been working the same board for the last 17 years. It consists of the following.

20

He begins work at 1.40 p.m. at the garage in Monaghan when he books on. He collects his ticket machine and tickets and makes his way to his bus which he inspects for roadworthiness. He then loads the passengers and luggage and departs for Letterkenny at 2.00 p.m. He arrives there at 4 p.m. where the passengers disembark. He then books off duty until 5.05 p.m. when he repeats the process in reverse arriving back in Monaghan at 7.45 p.m. He then cashes in his receipts, makes up his tickets and books off for the night at 9.00 p.m. On a Friday night, upon return from Donegal, he undertakes a return trip to Clones. On alternative weeks, from Monday to Friday, he also undertakes a return trip to the Regional College in Dundalk departing from Monaghan at 7.50 a.m. and returning at 10 a.m.

21

On the 23rd September, 1996, he was informed that his particular duty was being abolished but that he could apply for other duties. These other duties would have ensured that Monaghan could remain his base but he would be involved in driving different routes than theretofore. He declined to take up this offer.

22

On the 4th October of this year, he was advised of a new board in Monaghan including a route to Dundalk together with additional...

To continue reading

Request your trial
25 cases
  • Bane v Garda Representative Association
    • Ireland
    • High Court
    • 27 June 1997
    ...of judicial review. Geoghegan v. Institute of Chartered Accountants in IrelandIR [1995] 3 I.R. 86 and Rafferty v. Bus ÉireannIR [1997] 2 I.R. 424 approved. Beirne v. Commissioner of An Garda Síochána [1993] ILR.M 1 followed. Walsh v. Irish Red Cross SocietyIR [1997] 2 I.R. 479 considered. 2......
  • Evans v IRFB Services (Ireland) Ltd
    • Ireland
    • High Court
    • 11 April 2005
    ...carried out by the plaintiff in those proceedings on a part time basis. In applying the judgment of Kelly J. in Rafferty v. Bus Eireann [1997] 2 I.R. 424 the court held that the basic job description constitutes a condition of service. Thus the basic description may be distinguished from a ......
  • ADJ-00036626 - Workplace Relations Commission Gerard Tuohy v ESB Networks
    • Ireland
    • Workplace Relations Commission
    • 13 December 2022
    ...no obligation not to alter the structure of his business”.O’Cearbhaill & Ors was cited with approval by Kelly J. Rafferty v Irish Bus [1997] 2 IR 424. Kelly J. considered whether proposed changes which would affect bus drivers were changes in conditions of employment or work practices. Kell......
  • ADJ-00036596 - Workplace Relations Commission Sean Meyler v ESB Networks
    • Ireland
    • Workplace Relations Commission
    • 13 December 2022
    ...no obligation not to alter the structure of his business”.O’Cearbhaill & Ors was cited with approval by Kelly J. Rafferty v Irish Bus [1997] 2 IR 424. Kelly J. considered whether proposed changes which would affect bus drivers were changes in conditions of employment or work practices. Kell......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT