Rafferty v. Bus Eireann

Factual and Procedural Background

The Transport (Reorganisation of Coras Iompair Eireann) Act, 1986 restructured public transport by requiring Coras Iompair Eireann (CIE) to form three new companies, including Irish Bus, responsible for passenger road services within and outside the State. The Act included provisions governing the transfer of employees and their terms of employment, particularly Section 14, which protects employees’ pay and conditions of service unless altered by collective agreement.

Irish Bus commenced operations on 2 February 1987 but has faced significant financial losses, prompting the commissioning of a viability plan aimed at cost savings and operational efficiency. The viability plan proposed changes to work practices, including increased duties during non-driving periods for bus drivers.

The Applicants, including two individual bus drivers and a trade union representing bus drivers employed by Irish Bus, challenged the implementation of the viability plan on the grounds that it unlawfully alters their conditions of service contrary to Section 14 of the Act.

The matter proceeded by Judicial Review, with the Applicants seeking to prevent implementation of certain aspects of the viability plan affecting their employment conditions.

Legal Issues Presented

1. Whether the changes proposed by Irish Bus under the viability plan constitute less beneficial conditions of service for pre-1987 employees protected by Section 14(5) of the Act.
2. Whether the distinction between "conditions of service" and "work practices" exempts the viability plan’s changes from statutory protection.
3. Whether Judicial Review is an appropriate procedure for this dispute or if ordinary plenary proceedings are required.
4. Whether the trade union has locus standi to bring proceedings in a representative capacity on behalf of its members.

Arguments of the Parties

Applicants' Arguments

• The viability plan’s proposed changes, including additional duties during non-driving times, constitute alterations to conditions of service and are thus impermissible without union agreement under Section 14(5) of the Act.
• The union represents its members and contends that the changes will negatively affect all drivers covered by Section 14 protections.
• The individual applicants argue that specific changes to their rosters amount to unlawful changes in conditions of service.

Respondent's Arguments

• Irish Bus contends that the changes constitute modifications to work practices rather than conditions of service, which are not protected by Section 14.
• The company argues it has the right to alter work practices unilaterally without breaching statutory protections.
• Regarding procedure, Irish Bus submits that Judicial Review is not the appropriate remedy, and that claims relating to contractual breaches should be pursued by plenary proceedings.
• The company also challenges the union's locus standi, asserting it is not a party to contracts and thus cannot bring proceedings.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
O'Cearbhaill & Ors. v Bord Telecom (Employment Law Reports 1994 54)	Interpretation of statutory protection against reduction in pay or conditions without collective agreement, analogous to Section 14(5) of the Act.	The court adopted the Supreme Court’s construction that reductions in pay or conditions are only lawful if authorized by collective agreement.
Geoghegan v Institute of Chartered Accountants in Ireland (1995 3 I.R. 86)	Appropriateness of Judicial Review as a remedy in cases affecting livelihood and public interest.	The court found Judicial Review appropriate given the public law elements and the importance of a speedy hearing.
Beirne v Commissioner of An Garda Siochana (1993 I.L.R.M. 1)	Scope of Judicial Review over decisions with public law elements, even if contractual relationships exist.	The court held that where duties have a public domain character, Judicial Review is available.
Murphy v Turf Club (1989 I.R. 171)	Clarification that Judicial Review excludes private decisions unless public law elements are present.	Supported the position that decisions with public law implications are subject to Judicial Review.
R. v East Berkshire Health Authority Ex-Parte Walsh (1984 3 All E.R. 425)	Consideration of locus standi and procedural issues in public law challenges.	The court preferred Irish precedent over this English decision regarding locus standi and Judicial Review applicability.
Cresswell v Board of Inland Revenue (1984 2 ALL ER 713)	Distinction between changes in work practices and conditions of service in employment contracts.	The court applied this test to determine if changes constituted a new job or merely a different method of performing the same job.
Kenny v An Post (1988 I.R. 285) & O'Rourke v Talbot (Ireland) Limited (1984 I.L.R.M. 587)	Consideration of what constitutes conditions of service.	These cases were cited but found not to provide definitive guidance; the court relied on first principles.

Court's Reasoning and Analysis

The court began by interpreting Section 14(5) and (6) of the Act, concluding that employees who were officers or servants of CIE before the vesting day cannot have their pay or conditions worsened unless by collective agreement. Subsection (5) is permanent until the last pre-vesting day employee leaves, while subsection (6) is transitional.

The court distinguished between "conditions of service" and "work practices," relying on precedent to define conditions of service as terms normally found in employment contracts (e.g., pay, hours, holidays, pension rights, and basic job description). Work practices relate to how the job is performed and may be altered without breaching statutory protections.

Applying the test from Cresswell, the court asked whether the changes resulted in drivers doing a different job or merely doing the same job differently. It found that the changes proposed for the individual applicants (alterations to rosters and routes) were changes in work practice, not conditions of service, and thus lawful.

Regarding the union’s broader concerns about additional duties (cleaning, assisting office clerks, security tasks), the court acknowledged these were new but minor and performed during otherwise idle paid time, not altering the core job of driving. These too were deemed changes in work practice, not conditions of service.

On procedural matters, the court rejected the respondent’s argument that Judicial Review was inappropriate, finding that the public law elements, statutory protections, and impact on public transport justified Judicial Review as a proper remedy.

The court also upheld the union’s locus standi, accepting its right to represent members collectively in this action.

Finally, even if the changes could be considered alterations of conditions of service, they did not amount to less beneficial terms since pay and core job functions remained intact, and the changes aimed to improve company viability.

Holding and Implications

The court DISMISSED the application.

The decision confirmed that changes to work practices, even if novel or burdensome, do not constitute alterations to conditions of service protected under Section 14(5) of the Act unless they worsen employees’ pay or fundamental job descriptions. The ruling clarified the distinction between conditions of service and work practices in the context of statutory employee protections and affirmed the appropriateness of Judicial Review in disputes involving public law elements in employment.

The direct effect is that Irish Bus may proceed with implementing the viability plan as it relates to changes in work practices without union agreement, provided employees’ basic terms and pay are not worsened. No new precedent beyond the application of existing principles was established.