High Court of Ireland Decisions

1. 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.

2. 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.

3. 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.

4. 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:-

5. 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.

6. 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.

7. 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 areas 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.

8. 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.

9. 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.

10. 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.

11. 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.

12. On the 4th October of this year, he was advised of a new board in Monaghan including a route to Dundalk together with additional driving duties which would ensure that his driving day would start and finish in Monaghan. The details of this new roster were issued on the 7th October and would involve driving from Monaghan to Dundalk rather than to Letterkenny. This new board would involve Mr. Rafferty commencing work at 7.50 a.m.. However, Irish Bus contends that the duties to be undertaken would involve a definite commencement and conclusion time and are appropriate to a bus driver in the Respondent's service. The Applicant takes issue with this.

13. Mr. Ward is 55 years of age. He has been a bus driver in the employment of Irish Bus and its predecessor, CIE, for the last 27 years. He lives in Limerick. For the first 17 years of his employment, he worked on the Limerick city routes. Prior to the Act coming into operation, he applied for the board which he has worked for the last 10 years. He works a six-day week. He begins duty at 11.05 a.m. when he books on at the Limerick garage. He then goes to the Limerick bus terminal where he takes over the bus which has arrived from Cork and departs at 11.32 a.m. for Galway. He books off there at 2 p.m. and remains so until 5.40 p.m. when he makes the return journey to Limerick, arriving home at 8 p.m. At 8.15 p.m., he departs on a return trip to Ennis and arrives back in Limerick at 10.15 p.m. The implementation of the viability plan will involve the elimination of this board. In September 1996, Mr. Ward was given the opportunity to apply for other boards in the Limerick area but did not do so. He has been assigned a rotating duty ex Limerick which will require him to drive a number of routes with Limerick as his starting and finishing point. This will involve working a five-day week. He will also be able to drive on Sundays and so avail himself of the premium remuneration rates which apply to Sunday work. Irish Bus contends that he will continue to perform duties appropriate to his position as a bus driver and that he was notified of his new assignments on the 7th October, 1996.

14. This Applicant (the Union) is a registered trade union and organises staff members of Irish Bus. Of the full-time drivers employed by Irish Bus, approximately 600 are members of this union. The remainder are members of SIPTU. The union presents this application in a representative capacity on behalf of all of its members employed in Irish Bus to whom the provisions of Section 14 of the Act apply. That is to say, this application is promoted by the union on behalf of its bus driver members who were employed by CIE prior to the coming into operation of Section 14 of the Act on the 2nd February, 1987.

15. The union takes issue with the company on a number of aspects of the viability plan which the company sought to implement in Irish Bus on the 14th October, 1996. It contends that this viability plan will dramatically affect the terms and working conditions not merely of Messrs. Rafferty and Ward but of all of the drivers in Irish Bus who are members of the union. It says that the viability plan, when implemented, will constitute a variation in the conditions of service of such drivers and that this is impermissible having regard to Section 14 of the Act. It contends that certain provisions of the viability plan, to which I will return in due course, are suggestive of these fundamental changes. Now that the company has issued new boards and by so doing has in effect put flesh upon the bones of the viability plan, the union contends that its fears in this regard have been borne out.

16. I have already alluded to the unhappy financial situation of Irish Bus which brought about the commissioning of the viability plan. The Union, through its General Secretary, has sworn that it has recognised for some considerable time that there is a need for an extensive review of work practices within Irish Bus. The need for such a plan is manifest, not merely from the point of view of improving the commercial viability of the company, but also from considerations of common sense efficiency. The present situation where bus drivers, on average, spend only 72% of their time driving and are unoccupied for the bulk of the remainder of their working time, whilst being fully remunerated, speaks for itself.

17. The viability plan intends to achieve a minimum target of 85% driving time from all drivers. It seeks to do so in a number of ways. First, it speaks of full flexibility and interchangeability between staff in various grades being required. The existing network of depots, garages and administrative facilities will be examined under the terms of the plan and reappraised. Facilities surplus to business requirements will be vacated and resources reallocated to identified alternate locations. The route network and timetable will be changed where needed in order to cater for customer needs and to meet competitive threats and the demands of the market place. The plan envisages five day basic working weeks spread over seven days for all drivers. They will be required to report for duty at the book-on time at locations designated by the company. Revised boards will be compiled for all depots so as to provide for greater efficiency in operating services. The plan provides for basic rates of pay for drivers who operate large buses, to remain as at present. Shift allowances will also be paid, as will meal and lodging allowances and there is a minimum gross weekly pay guaranteed of £215 for working a five day, 39 hour week.

18. The part of the plan to which particular exception is taken is contained at paragraph 4.9. It reads as follows:-

19. In addition, the number of spare/relief drivers is to be determined by the level of activity and normal relief requirements. The days of work and times of attendance are also to be based on these criteria. The viability plan, having been published in June of 1996, was the subject of a number of meetings between the Union and Irish Bus. The last of these meetings appears to have taken place on the 19th September, 1996 but did not result in any agreement being reached. At that meeting Irish Bus made it clear that unless the Union was prepared to accept the viability plan, it would be implemented, in part at least, as and from the 14th October, 1996. Such implementation was to take effect without the agreement of the Union. As part of this implementation, new boards were published. I have already referred to the boards which directly affect the first two Applicants. However, a number of other boards have been published by Irish Bus which are not as yet applicable to individual named bus drivers but do, in my view, indicate quite clearly the company's intention to implement these boards in respect of, as yet, unnamed bus drivers. A number of these contain the following legend:-

20. More explicit reference is made to what will be expected of drivers in a number of boards. Two in particular have been highlighted. One of these involving the Letterkenny to Ballybofey service, requires the driver to "assist office clerk at Letterkenny with parcels and enquiries". Board No. 18 involving a Tralee driver requires him to "clean offices on Sundays between 11.45 a.m. and 2.05 p.m. and again on Mondays and Fridays between 10.50 a.m. and 1.50 p.m.".

21. The Applicants contend that Irish Bus has no entitlement to implement what are alleged to be changes to the conditions of service of bus drivers in the manner in which it has sought to do or at all, save with the agreement of the Union. This contention brings into focus the statutory provisions of Section 14 of the Act which are pivotal to the issues which have to be resolved in this Judicial Review.

22. I have already reproduced in full the provisions of the section. I turn now to what I believe to be the true construction to be given to subsections (5) and (6) thereof.

23. In my view the true meaning of subsection (5) is that every person who was an officer or servant of CIE before the 7th February, 1987 cannot receive a lesser scale of pay or be brought to less beneficial conditions of service than those to which he was entitled, prior to that date, unless a collective agreement has been negotiated, permitting such alterations. This subsection has both positive and negative effects from an individual employee's point of view. On the one hand it means that in the absence of a collective agreement, negotiated with a recognised Trade Union, an employee's scale of pay or conditions of service may not be reduced or lessened. But on the other hand employees have to accept less beneficial conditions of service or rates of pay than that to which they were previously entitled, provided that such reductions are brought about by a collective agreement. So a diminution in pay or worsening in conditions of service can be brought about even against the wishes of an individual employee, provided that they are brought about by collective agreement.

24. In construing that subsection, Blayney J. (with whom Finlay C.J. and Egan J. concurred) said at p. 57:-

25. In my view subsection (5) of the Act falls to be construed in precisely the same manner as Section 45(2) of the Postal and Telecommunications Act, 1983 was construed by the Supreme Court.

26. Furthermore, I am of opinion that this subsection, unlike the next one which I shall consider presently, has no temporal limitation but remains in force until such time as the last pre-1987 CIE employee leaves the payroll.

27. This subsection is clearly transitional in nature, unlike its immediate predecessor. It remains in force only until such time as scales of pay and conditions of service of officers or servants are varied. Once such variation takes place, the section ceases to have any practical effect. Until that variation occurs, however, the scales of pay and the conditions of service together with restrictions, requirements and obligations to which officers and servants were subject, before the vesting day, continue to apply to them. Not merely that, but such scales of pay, conditions of service, restrictions and requirements can be exercised or imposed by CIE or its Chief Executive or by the board or Chief Executive of Irish Bus. But when the variation occurs, it may not worsen the scales of pay or conditions of service, except in accordance with a collective agreement.

28. The subsection appears to me to have little practical effect insofar as this case is concerned. The Applicants base their complaint, fairly and squarely, upon what they say is an attempt to introduce less beneficial conditions of service. It follows that if subsection (6) is exhausted because a variation has taken place already, the Applicants are still entitled to rely upon the provisions of subsection (5). If, however, subsection (6) is still in force because a variation has not taken place, it is clear that such a variation cannot operate to worsen the conditions of service, save in accordance with a collective agreement negotiated with a recognised Trade Union. Accordingly, in my view, subsection (6) has little practical effect upon this case since, insofar as conditions of service are concerned, it gives in effect the same protections as are contained in subsection (5).

29. As the case developed it became clear that, apart from the question of the construction to be placed upon Sections 14(5) and (6) of the Act, the principal matter which falls to be determined in this case is whether or not the matters alluded to in paragraphs 4.5 and 4.9 of the viability plan, when carried into effect, will amount to the imposition of less beneficial conditions of service than were present prior to the vesting day. The Applicants contend that they do. The Respondent says that they amount to no more than a change in work practices which are to be distinguished from conditions of service. They say that at all times Irish Bus was entitled to change the work practices of bus drivers without the necessity of Trade Union agreement and that this did not amount to a breach of the protections afforded by Section 14. Before I can even consider that question, however, I must adjudicate on a number of preliminary objections which were raised by Mr. Fitzsimons on behalf of Irish Bus. One deals with the procedure which was followed in this case and the other deals with the question of locus standi.

30. As far as the procedure is concerned, he argues that this is not a case which should have proceeded by way of Judicial Review. Insofar as locus standi is concerned, he accepts that the first two Applicants can clearly come to Court to make complaint of the matters ventilated by them. But he says that the Union has no locus standi since it cannot be a beneficiary under the provisions of Section 14 and acts as a mere agent on behalf of its members who are principals. I will deal with each argument in turn.

31. Mr. Fitzsimons argues, quite rightly, that Judicial Review is a public law remedy. He contends that this is not a public law case. Rather, he says the relevant provisions of Section 14 have been incorporated as a statutory term in the contracts of employment of each pre-1987 employee of CIE now employed by Irish Bus. If, therefore, they wish to seek redress in respect of such breach of contract, they must do so, not by means of Judicial Review, but rather by ordinary plenary proceedings.

32. In a moment I will turn to a consideration of the validity of this submission from a strictly legal point of view. From a practical point of view it has little to recommend it. These proceedings were commenced on the 7th October, 1996 and were heard as a full action over two days on the 15th and 16th October, 1996. Had they been commenced as a private action by plenary summons, Mr. Fitzsimons accepts there could have been no question of a full trial having taken place within ten days of the proceedings being initiated. By adopting the Judicial Review route, it was possible to have a full hearing of the action, something that would have been impossible had the private law route been taken. The best that might have been achieved would have been an interlocutory hearing for injunctive relief. Indeed, it is significant that the possibility of having to seek interlocutory relief was certainly in contemplation of the parties, having regard to the documents which were exchanged and in particular the matter dealt with at paragraph 9 of the Statement of Opposition. So, by approaching the matter from a Judicial Review point of view, a speedy trial was ensured with the examination of all issues to be determined in a final and binding way rather than on an interlocutory basis. Of course, if Mr. Fitzsimons' argument is well-founded as a matter of law, such practical common-sense considerations count for little.

33. In my view, his argument is not well-founded and I am glad to say that on one view of the matter there is a convergence in this regard between the practical and the legal.

34. If that be the appropriate criterion to apply, this submission of Mr. Fitzsimons can have no legal validity.

35. However, I am by no means certain that that is the correct criterion and I note that this topic, when discussed by the Supreme Court in Geoghegan's case, was dealt with in all of the judgments as obiter dicta with the Chief Justice declining to express any view on the topic.

36. The matter is dealt with in some detail by Denham J. but again on an obiter basis. She, however, sets out a number of factors she considers relevant when a question of the availability of Judicial Review is raised. In this regard I bear in mind, not merely that her statements are obiter, but that they do not appear to be in accord with the views of O'Flaherty J. and Blayney J.. However, Egan J. agreed with her. The factors which she identifies are as follows at page 130. She said:-

37. Whilst Geoghegan's case was dealing with matters entirely different to what I am dealing with in this action, nonetheless, I believe that a number of those factors identified by Denham J. are of relevance here. They are as follows:-

38. These five considerations mirror, to a great extent, the matters identified by Denham J. in Geoghegan's case. In my view, they amply support the entitlement of these Applicants to seek redress from this Court by means of Judicial Review rather than by plenary proceedings. This case does involve, in my opinion, a sufficient public law element to justify Judicial Review.

39. Curiously enough, none of the judgments in the Supreme Court in Geoghegan's case refer to an earlier decision of that Court (nor was I referred to it in these proceedings) in which the question of the reach of Judicial Review was decided in a definitive way. It is Beirne -v- Commissioner of An Garda Siochana (1993) I.L.R.M. 1. The views expressed by the majority of the Court in that case cannot be regarded as mere obiter dicta. The Court, through Finlay C.J., approved of the decision of Barr J. in Murphy -v- Turf Club (1989) I.R. 171. Two passages from the judgment of Finlay C.J. merit reproduction. He said at p. 2:-

40. In this case, I think there can be little doubt but that Irish Bus operates in the public rather than the private domain. Whilst the contracts of employment which form the subject of this action may originally have been private ones between employee and employer (albeit a public employer), they have been altered by statute and are given an express statutory protection which is not the case in an ordinary private contract. I am of the view that the relationship between the parties here is not derived solely from a private law contract.

41. In rejecting Mr. Fitzsimons' contention, I have not omitted consideration of the decision of the Court of Appeal in England in R. -v- East Berkshire Health Authority Ex-Parte Walsh , (1984) 3 All E.R. 425. Beirne's case is binding on me and, even if it were not, I would prefer it and the, admittedly obiter, statements made by members of the Supreme Court in Geoghegan's case to the views expressed by the Master of the Rolls.

42. The second preliminary objection raised by the Respondent concerns the entitlement of the Union to bring these proceedings at all. The argument runs as follows. The first two Applicants are entitled to bring these proceedings because it is their contracts of employment which they say are being interfered with in an unlawful way. But the Union has no contract of employment with Irish Bus. All it has is the statutory entitlement which is given to it in Section 14 of the Act to enter into a collective agreement with Irish Bus which may alter scales of pay or the conditions of service of employees, even in a detrimental fashion. But in such event, it is the employees who are either benefited or damnified and not the Union. It is therefore contended that the Union is nothing more than an agent of known and ascertained or ascertainable principals. Such being the case, it could have no locus standi to bring these proceedings.

43. I am by no means sure that the comparison which is made between the relationship of the Union to its members and that of principal and agent, is an accurate one. But even if one assumes that it is, this argument, in my view, ignores the fact that the Union brings these proceedings in a representative capacity as representing all of its members who are in the employment of Irish Bus and to whom the provisions of Section 14 of the Act are applicable. It is perfectly entitled to bring an action in such capacity and leave was given to it so to do by Smyth J. on the 7th October, 1996. Bringing the action in that form rendered unnecessary the naming as individual applicants of all of the Union's 600 members. I am, therefore, satisfied that this argument has no substance and I reject it.

44. Even if the Union was not suing in a representative capacity, I would be very slow to conclude that it could not maintain proceedings seeking to enjoin activities which it considered to be in breach of a statutory provision which prevented such activities taking place, save with its agreement. However, it is not necessary for me to decide this question since I am satisfied that the proceedings brought by the Union in a representative capacity give it sufficient locus standi to maintain this action.

45. I turn now to consider a topic which promoted a good deal of debate during the course of the hearing and in respect of which there does not appear to be any Irish decision to date. Is there a difference in law between conditions of service and work practices?

46. In O'Carroll's case Blayney J. said this at p. 61:-

47. That quotation appears to me to make it quite clear that in the totality of the relationship between employer and employee, certain aspects of it may truly be described as conditions of service whereas other aspects are not. Even though these other aspects may have important implications for both employer and employee, they are nonetheless not to be regarded as conditions of service and in the present case would not fall to be protected under Section 14(5). Accordingly there is a difference in law between conditions of service and work practices.

48. It is also clear from the quotation that when Blayney J. describes what are conditions of employment by reference to the rate of pay, hours of work, length of holidays, sick leave and pension rights, he is not setting forth an exhaustive list of what may be regarded as conditions of service. I would not wish to do so in the course of this judgment either. But I do think that there may be added to that list one other item which can be regarded as a condition of service. It is the basic job description applicable to a post. At common law an employee is not required to do a fundamentally different job from that contracted for.

49. An English decision is of assistance in illustrating the difference between conditions of service and work practices.

50. I have already decided that the basic job description constitutes a condition of service. In order to decide whether that condition of service has or is likely to be altered in an unlawful fashion by Irish Bus I formulate the same test as was applied by Walton J. in Cresswell's case and so I ask myself this question:- "Is the effect of the changes promulgated by Irish Bus such as to result in the bus driver doing a different job or is it merely to bring about a situation where they will be doing recognisably the same job in a different way"? If it is the former and is less beneficial to the employee it is unlawful without the consent of the Trade Unions pursuant to Section 14(5). If the latter, it is merely a change in work practice, does not attract the statutory protection and is lawful.

51. All parties to the proceedings accept that the essential conditions of service of drivers employed by Irish Bus are to be found in what is called the Road Passenger Agreement. That Agreement was entered into as far back as 1947 but has been extensively modified and amended from time to time. I am satisfied that that agreement is not exhaustive. Two elements of it are, in my view, relevant to this case. The first is that under clause 26 thereof the agreement is terminable by three months notice on either side. No such notice has been served nor indeed does Irish Bus intend to terminate the agreement.

52. The second matter of note was omitted from the original exhibit in

53. Mr. Bunting's affidavit and pertains to the provisions of Clause 2 of the agreement. I am satisfied that there was an amendment to that clause which envisages the furnishing of six days notice to the Trade Union of any proposed changes in a duty schedule. Under the terms of the amended Clause 2 the Trade Union officials are to be given facilities to examine such changes. However there is no requirement that agreement must be obtained from the Union or its members in respect of such changes of schedule. The existence of such a provision seems to suggest that scheduling arrangements, at least as far as city services were concerned, were matters in respect of which the company could make unilateral alterations. This amendment to Clause 2 long antedated the Act and suggests to me that conditions of service which existed when the Act came into force included one whereby the company could alter schedules without consent on the part of the Union or the employees. In any event even if there was not such provision it appears to me that the scheduling of drivers per se can only be regarded as a question of work practice rather than a condition of service.

54. I turn now to consider each of the Applicants by reference to the alterations which are sought to be brought about.

55. I have already set out in some detail the board or roster which Mr. Rafferty worked for the past seventeen years and the new one which is proposed for him. It is to be noted that his new roster or board does not contain what was referred to as the standard phrase identified by paragraph 11 of Mr. Bunting's first affidavit.

56. In my view the alterations which Irish Bus seeks to effect to Mr. Rafferty's board amount to a change in work practice rather than a change in conditions of service. He continues to be a Bus driver. The duties which he will do are broadly the same as those undertaken heretofore. He will continue to operate from his original base. It does not appear to me that the alterations which Irish Bus wished to make in his case constitute a breach of the provisions of Section 14 of the Act and consequently the application in respect of

57. Mr. Rafferty will be dismissed.

58. Again in the case of this Applicant it appears to me that the new board which will govern his working week constitutes a change in work practice rather than a change in his conditions of service. He still continues to carry out the duties of a bus driver who will be working a five day week. There is no complaint concerning any drop in his basic remuneration. In these circumstances it appears to me that although the new board will bring about alterations to his work, they do not approach anything like the form of alteration which would be required in order to amount to a change of his basic job description and therefore a change of a condition of his service. Accordingly in his case also this application will be dismissed.

59. The Union has put in evidence the viability plan and has drawn my attention to the particular part of it to which it takes exception. That is Clause 4.9. I have already reproduced that in this judgment. The Union has also demonstrated the way in which Irish Bus has sought to implement that Clause by reference to the standard phrase which has been incorporated into most of the new boards. I have also reproduced that earlier in this judgment. A number of specific boards have then been called to my attention.

60. So, for example (as already pointed out), on the Letterkenny/Ballybofey service (Board No. 29A) a driver will be required to "assist office clerk at Letterkenny with parcels and enquiries". Board No. 18 dealing with Tralee requires the driver to "clean offices on Sundays between specified times and to do likewise on Mondays between specified times".

61. In his supplemental affidavit Mr. Bunting exhibits some further boards which require drivers on occasions to "sweep and clean yard or any other duties as are required by inspector". Another roster requires a driver to "sweep main hall and empty bins". In that particular roster it is said that it is contemplated that the driver concerned will have to undertake these duties for an hour and twenty-five minutes of each of five working days. In a further roster which is exhibited it is contemplated that the driver will assist the traffic inspector regulating buses etc.

62. Whilst these rosters have not yet been applied to any specific individual I think it likely that were it not for this judicial review application Irish Bus would have attempted to do so. These boards go a good deal further in the alterations which they propose than those which are applicable in the case of the first two applicants. They require the drivers concerned to undertake duties which were not formerly done by them. Indeed in the case of the sweeping duties involving yard cleaning, Mr. Paul Keely in the supplemental affidavit which he swore on behalf of Irish Bus accepted that these duties were new. But he went on to point out that they would only be done at a time when the drivers involved would otherwise be idle.

63. Other elements involved in the new boards are less clear on the question of novelty. For example it appears to be the case that bus drivers were always involved in a certain amount of duties involving the checking and loading of passengers or the giving of information or work involving luggage and parcels. However, most of this work appears to have been referable to passengers and luggage travelling on the particular bus which was the responsibility of the individual driver. Under the new regime, work of this nature may have to be carried out in respect of other buses.

64. I readily accept that under the Road Transport Rule Book which has been exhibited before me drivers are required to perform a considerable range of duties apart from actual driving. For example, they are responsible to ensure the safety of passengers; they have heretofore been involved in the provision of information; they have also been involved in keeping the interior of their own buses clean where passenger safety or comfort could be compromised by the accumulation of debris. All of these tasks appear to be consistent with the role of a bus driver. The extension of these tasks to buses other than the one for which the individual driver is responsible appears to me to be permissible and not amount to other than a change in work practice. That is so provided of course that the principal occupation of the driver remains that of driving. Both under the viability plan (Clause 4.9) and the new boards this is so.

65. The position therefore is that in my view Irish Bus is correct in saying that the changes which it seeks to bring about are ones which involve work practices rather than changes in conditions of service. These alterations do not affect the rate of pay, hours of work, length of holidays, sick leave or pension rights. Neither do they in my view alter the basic or core work of a bus driver. These altered duties will only fall to be executed at times where drivers would otherwise be idle and yet remunerated. In each case these duties will constitute a small part of the overall work which will remain bus driving.

66. I therefore conclude that the proposed alterations relate to work practices rather than conditions of service. Such alterations are not protected by Section 14.

67. If I am wrong in this conclusion and the proposed alterations amount to a change in conditions of service that of itself does not trigger Section 14(5). That provision does not prohibit an alteration or change in conditions of service unless it brings about a worsening in the employee's position. The change must be less beneficial to the employee before Section 14 applies.

68. What worsening is brought about here? Can an employee complain that his conditions of service are worsened when his employer re-orders his working arrangements so as to ensure that the employee is not idle whilst being paid. That is what these changes hope to achieve in an ailing company.

69. I do not believe that any such complaint would be legitimate. The position would of course be different if Irish Bus sought to require the drivers to receive a lesser scale of pay or to carry out work during times when they would not be paid. But merely to require them to work during a time when they are being paid cannot give rise to a legitimate claim under Section 14 on the grounds that formerly they did not have to work during such times.

70. It follows that even if the proposed changes are ones which alter conditions of service rather than work practices, they do not give rise to a complaint under Section 14 since they do not worsen the drivers' conditions of service.

71. Indeed on one view these changes will enhance the driver' s position since, if implemented, they ought to improve the company's viability and therefore the prospects of continued employment.

72. This application is dismissed