BOTH sides in the dispute between the National Bus and Rail Union and Bus Eireann have agreed to further defer any action until tomorrow to allow for the completion of the legal challenge by the bus drivers, the High Court was told yesterday.
Two drivers and the union began their challenge to Bus Eireann's viability plan before Mr Justice Kelly yesterday. However, when the case was adjourned at the end of the day to resume this morning, the judge was told that Bus Eireann had postponed the implementation of the plan until Thursday and that strike action by the union would also be deferred. Both had been planned to begin last Monday.
The action by way of judicial review is being taken by drivers, Mr Michael Rafferty (56), Mullaghdun, Monaghan, and Mr Frank Ward (55), of Coonagh, East Limerick, and the NBRU.
Yesterday, Mr Rory Brady SC, for the drivers, said that under Section 14 of the Transport (Reorganisation of Coras Iompair Eireann) Act 1986, the company was not entitled to engage in any alteration or variation of conditions of service of those members of the NBRU transferred from CIE to Bus Eireann. The Act established the three subsidiary companies, including Bus Eireann.
Bus Eireann is contending that it is acting lawfully in seeking to introduce its viability plan and that there is no worsening of conditions for employees. It also claims that conditions of service will not be adversely affected.
Mr Brady said the centre of the dispute was the adoption of a viability plan by Bus Eireann, dated June 18th, 1996. It was proposed by the board of directors to implement it on October 14th, 1996, and it concerned the way in which drivers operated by way of a "board" or roster of duties.
In the viability plan it was stated that there were revised boards for all depots, comprising a five-day working week. The boards would be continually reviewed.
The plan also proposed that drivers would undertake other work when not driving, for example, issuing tickets, checking passengers, dealing with parcels, washing and cleaning buses and other duties.
Mr Brady said the plan was circulated to drivers, and in September some of the employees received the new boards. There was a new obligation that was not part of the traditional job of drivers which involved the cleaning of offices and toilets, sweeping and emptying bins.
The conditions of service of the drivers or employees of Bus Eireann were subjected to a statutory form of protection which created a veto on the CIE companies from varying the conditions of service so that there were less beneficial terms.
This constituted a statutory assurance during the transfer from CIE to Bus Eireann that conditions of service would not be varied unless agreed by the registered trade unions.
The statutory veto and protected rights could not be altered except by collective bargaining and the agreement of the union. The viability plan was not agreed by the unions nor was variability of service.
Mr Brady said his clients accepted that the financial position of Bus Eireann was precarious and that there was a need to bring about changes. However, the difficulties in Bus Eireann were not an excuse for it to override the provisions of the Act.
During September, eight meetings took place between the management and union. His clients were advised that the company intended to implement the plan with or without union consent. His clients were exercising their constitutional right to access to the courts and the strike notice was to some extent unrelated to this.
Mr Peter Bunting, general secretary of the union, said in an affidavit that in so far as the viability plan purported to effect the conditions of service, the company was acting ultra vires its powers and in breach of the statute.
In an affidavit, Mr Paul Keely, manager, operations, Bus Eireann, said the company had engaged in a lengthy consultative process with the union but to no avail. The union had adopted a cavalier attitude and the opposition posed a threat to the plan.
He said there was a clear distinction between conditions of service and work practices. Conditions of service essentially consisted of the following: basic job description; commencement date; whether the job was probationary, temporary or permanent; basic pay; length of working week; holiday entitlements; sick pay entitlements; insurance; retirement age; pension entitlements.
He accepted that the sweeping duties referred to were new. However, the company's justification for this measure derived from the fact that drivers who would otherwise be idle, would henceforth be required to work instead. In other words, the company was anxious to ensure that drivers would be productively occupied during their working hours.
Drivers had performed ancillary duties in addition to their driving functions. The driving of a large public service passenger vehicle for long distances and without a conductor imposed a requirement on drivers to undertake additional duties. The drivers had demonstrated flexibility in the performance of their employment obligations in the past.
The case continues today.