LCR22159

The agreement in question was made between Bus Eireann, Dublin Bus, SIPTU, NBRU, TSSA and UNITE.

The Applicants contend that the REA requires Bus Eireann to afford 14 bus drivers the right to exercise an option to leave their employment with a severance package on foot of the closure of their outbased locations in either the Newbridge or Edenderry depots. The closures arise from the fact that Bus Eireann did not succeed in a tender competition executed by the National Transport Authority (NTA) to operate the routes served by the outbased locations. The routes are now to be operated by another bus company which was the successful bidder in the competition.

The relevant clause of the REA which the Court has been asked to interpret reads as follows:

• 7. The parties to this agreement agree the following conditions of employment

  A: The current terms and conditions of employment of staff in Dublin Bus and Bus Eireann will not be negatively affected as a direct result of the tendering of bus services.

The parties have previously engaged in an effort to agree the options available to drivers on closure of their outbased locations. It appears that the parties have agreed that drivers at such locations have the option of taking up employment with the new operator on their existing routes for at least twelve months on their existing terms and conditions of employment or transfer to their parent depot in Broadstone or to another outbased location, e.g. Mullingar, Kells and Athlone. It appears also to be agreed that any driver transferring to another location will receive a lump sum payment of €16,000. The parties remain disagreed as regards the availability of severance to the 14 drivers with the company asserting that it is recruiting drivers rather than reducing the number of drivers it employs.

Summary position of the Applicants

An agreement was reached some years ago that a driver in Rosslare could elect to avail of severance when his outbased location closed. That agreement has applied on numerous occasions and consequently, by virtue of that custom and practice, constitutes an implied term in the contracts of employment of the 14 drivers and the contracts of approximately 1650 Bus Eireann.

An internal Tribunal considered in February 2019 the case of a driver who had been based in Cong until the service was discontinued by the company. The Chairperson of the tribunal decided that the parties did have an agreement which would allow a driver, in the situation which occurred in Cong, to avail of voluntary severance.

The applicants contend that this set of circumstances demonstrates that the 14 drivers enjoyed the contested term or condition of employment prior to the coming onto being of the REA and consequently that term or condition was protected by the REA at Clause 7A.

Summary position of Bus Eireann

Bus Eireann submitted that this is the first occasion when an outbased location closed for reasons outside the control of the company. It submitted that on every other occasion when an outbased location closed the reason was business related and was entirely within the control of the company. In this case the company had competed for the business and lost the competition to retain it. It has suffered commercially as a result and intends to compete again for the business whenever the NTA might initiate another competition.

The Company said that any contention that a term or condition of employment existed which allowed a driver to receive a severance package on depot closure could, if it existed, only relate to situations where the company decided to close the location. That had not happened here and has never previously happened.

Discussion and conclusions

In a case concerning the interpretation of the Electrical Contracting Industry REA this Court held in Ascal Electrical Limited v TEEU INT071 as follows:-

• “The object of the process is to ascertain the intention of the parties to the REA and where there is ambiguity to ascribe to it the meaning intended by its authors. The Agreement was drafted by industrial relations practitioners and is addressed to employers, employees and their trade unions. Moreover, the primary role in interpreting the agreement is assigned to this Court and not to a Court of law. This indicates an intention on the part of the Oireachtas that such agreements should be constructed in a way that takes account of industrial relations realities and that words and expressions should be given the meaning which they would bear in an industrial relations setting.”

The question before the Court relates to whether such a right pre-existed the registration of the REA such that it is a term or condition of employment comprehended by clause 7A of the REA.

The Court concludes, on the basis of the plain facts of the history of the REA, that pre-existing terms and conditions of employment did not encompass what should happen in the event of loss of business as a result of tendering of bus service by the NTA. If such an event was provided for by agreement as part of a drivers terms and conditions there would not have been a requirement for an REA to address the matter.

It is clear that in all other cases where an outbased driver was afforded the right to elect to leave his or her employment in receipt of a severance package the closure of the location was a decision in the sole discretion of Bus Eireann. In the current situation Bus Eireann had no control over the decision which caused the closure of the outbased location.

The Court, taking all matters into account, concludes that the REA cannot be interpreted as meaning that an outbased driver could, if the business served by his or her outbased location is lost through a decision of the NTA, elect at his or her sole discretion to leave the company in receipt of a severance package. If a term or condition does exist which affords such a right to a driver on closure of his or her outbased location it can only have been agreed or otherwise come into being in the context of closure situations brought about by business decision making within the sole discretion of the company.

The Court so decides.

Signed on behalf of the Labour Court



Kevin Foley
RK______________________
12/12/2019Chairman



NOTE

Enquiries concerning this Recommendation should be addressed to Richard Kennedy, Court Secretary.