Effect given to the recommendations of the committee and the Governing Body - Report No 349, March 2008

Effect given to the recommendations of the Committee and the Governing Body

1. 261. The Committee last examined this case at its May–June 2007 meeting [see 346th Report, approved by the Governing Body at its 299th Session, paras 1464–1547]. On that occasion, the Committee requested the Government to pursue its review of the Employment Relations (Jersey) Law 2007 (ERL) in full and frank consultations with the employers’ and workers’ organizations concerned, and in particular to take the necessary measures so as to:
   • – ensure that a union remains registered until a final decision has been taken by a judicial authority, in the event of a cancellation of registration;
   • – clarify the situations in which a union’s registration may be cancelled;
   • – ensure that the Royal Court may review the substance of cases on appeal;
   • – ensure that workers are not sanctioned for legitimate trade union activity and ensure effective protection against penalizing workers for such activity;
   • – revise the definition of a collective agreement so as to ensure that the determination of the bargaining level is left to the determination of the parties and ensure that, where unions do not represent a “substantial proportion” of the workers, they may bargain at least on behalf of their own members;
   • – revise the definition of an employment dispute so as to remove the requirement of a pre-existing collective agreement and remove the requirement that the employer must employ at least 21 employees for a recognition dispute to qualify as a collective dispute;
   • – ensure that compulsory arbitration is only imposed in cases of essential services, public servants exercising authority in the name of the State or where both parties agree; and
   • – ensure that secondary action and socio-economic protest action are not prohibited.
   • The Committee also reminded the Government that it may avail itself of technical assistance from the Office in respect of the matters raised in the present case.
2. 262. In its communication of 18 October 2007, the Government indicates that the Minister for Employment and Social Security in Jersey (the “Minister”) has considered with great care the comments of the Committee and appreciated that the Committee had noted the extensive consultations held with all interested groups prior to the enactment of the ERL. The process of consultations would be continued and informed by the Committee’s comments. The Minister stresses the importance of consultations within the legislative process of a small jurisdiction, such as Jersey, where it is essential that legislation enjoys the broad acquiescence of the people and that the views of those who have been consulted be respected; the ERL does not represent the views of one party, but rather the views of independent members of the Parliament whose views, in turn, would be greatly influenced by the outcome of the public consultations that had taken place.
3. 263. As concerns the issue of union registration, the Government states that the legislation provides sufficient protection against deregistration. Under articles 10(1) and 14(1) of the ERL, the Registrar may refuse to register a union or cancel a union’s registration if the said union had, as one of its purposes, the objective of acting unlawfully; as a matter of law, however, the Registrar may not refuse to register or deregister a union on grounds of unlawful activity. The Government further states that as the Registrar is a public authority for the purposes of the Human Rights (Jersey) Law, 2000, he is obliged by law to exercise his powers in a manner compatible with the articles of the 1950 Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe – in particular article 11 regarding the right to freedom of assembly and association. Additionally, article 15 of the ERL provides for a right of appeal to the Royal Court against any exercise of administrative discretion by the Registrar; on any such appeal, the Royal Court of Jersey and the higher appellate courts, as public authorities, would also be obliged to discharge their duties in a manner compatible with the 1950 Convention. Furthermore, the ERL contains no restriction on the right to appeal to the Court and article 15(3) provides that the Royal Court may confirm or reverse decisions of the Registrar. The Government states that for the above reasons it did not consider amending the legislation relating to registration necessary, but would consult upon the views expressed by the Committee.
4. 264. In regards to the Committee’s request to ensure that a union remains registered until a final decision has been taken by a judicial authority, the Government indicates that article 14(7) of the ERL provides that a cancellation of registration shall not have effect until the expiry of 21 days from the day after notification to the union of the Registrar’s decision, and article 15(2) gives the union concerned 21 days within which to appeal. Article 14(8) of the ERL provides that a cancellation of registration shall not have effect until the appeal is disposed of and, furthermore, the Royal Court has a general power to extend time limits under Rule 1/5 of the Royal Court Rules, 2004.
5. 265. As concerns sanctions for engaging in legitimate trade union activities, the Minister – after consultations with the Employment Forum on the subject – has issued instructions for an amendment to the legislation which would require that an employee who was found to have been unfairly dismissed on grounds of having taken industrial action would be entitled to reinstatement, or to compensation in lieu of reinstatement.
6. 266. As concerns the definition of a collective agreement, defined under article 1 of the ERL as one between an employer, or an organization of employers that is representative of a substantial proportion of employers in the trade or industry and employees who are representative of a substantial proportion of the employees engaged in the trade or industry concerned, the Government indicates that the term “substantial proportion” is of longstanding use in Jersey, providing the basis upon which industrial disputes and reporting issues are dealt with under the Industrial Disputes (Jersey) Law, 1956. To the Minister’s understanding, the term “substantial proportion” would not require in excess of 50 per cent of the employees to be represented, but rather that the representation would need to cover a significant minority of employees. Although no legal decisions on the scope of the term have been handed down, the Minister proposes to consult with interested parties as to whether an amendment to the ERL in this respect would be appropriate.
7. 267. As regards the requirement that an employer employ at least 21 employees for a recognition dispute to qualify as a collective dispute, the Government states that previous consultation on this matter took place through the consultation document “Fairplay in the Workplace: Trade Union issues” in 2001, which sought views on whether the right to statutory recognition should only apply to businesses over a certain size. The opinions received were divided fairly evenly on this point and the Minister considers that views are likely to remain polarized between small employers and trade unions; however, the Minister would hold further consultations on the matter to ascertain whether views have changed.
8. 268. As concerns the resolution of collective disputes, the Government states that the Jersey Employment Tribunal (JET) has very limited jurisdiction to make a binding award in the absence of both parties’ consent. Unless article 22(2) of the ERL applies, the JET only has jurisdiction if both parties consent; furthermore, article 22(2) only allows the JET to exercise jurisdiction where, inter alia, a party to a dispute is acting unreasonably in complying or not complying with an available procedure as defined in article 22(3). Additionally, article 22(4) of the ERL requires that in deciding whether a party is acting unreasonably, regard must be had to whether the relevant handbook has been agreed upon by the parties, including the employees. Unless the available procedure is set out in a code of practice, therefore, a party could only act unreasonably within the meaning of the article in relation to a procedure it had previously agreed upon. According to the Government, the powers of the JET to make a declaration are limited to what is provided by article 23(2) of the ERL, and the JET has no power to make a declaration on issues of pay, for example, unless both sides consent. If the JET purports to exercise jurisdiction not conferred on it by the ERL or the parties, any party may apply to the Royal Court for an order setting aside the JET’s decision for lack of jurisdiction.
9. 269. As concerns the codes of practice, the Government states that there has been extensive consultation with the Employment Forum and attaches a further draft of the proposed codes. The Government indicates that the allegation that small businesses employing ten or fewer employees are exempt from allowing employees the right to join or form a trade union is incorrect and false: the threshold is fixed at 21 or more employees for unions wishing to use industrial action to achieve recognition. There is also no prohibition, either in the ERL or the codes, against membership of a trade union. Such a prohibition would be inconsistent with the terms of the Human Rights (Jersey) Law, 2000. Furthermore, sanctions are available under the Employment Law, 2003, in respect of any employer who penalizes an employee for joining a union. According to the Government, unions are well-placed to achieve voluntary recognition through the force of economic argument, including that force of argument which draws on the full employment that has existed in Jersey almost continuously for the last 30 years.
10. 270. In respect of secondary action undertaken by unions, the Government asserts that all member states set limitations on the freedom of trade unions to organize industrial action. These limitations reflect the local conditions, including the industrial relations traditions and practices of the member State or territory concerned. In Jersey’s circumstances, where collective agreements are not legally enforceable and where bargaining is decentralized, it is necessary for secondary action to be prohibited. In a small and geographically isolated economy such as Jersey’s, the widening of industrial action to involve others not party to the primary dispute would be extremely disruptive to the life of the island and to the provision of necessary services to citizens. The Minister therefore does not propose to change the law in this respect and considers the prohibition on secondary action to be consistent with Jersey’s international obligations.
11. 271. The Committee notes the detailed information provided by the Government, and in particular the Government’s indications relating to a number of points where it intends to continue to consult with the social partners and search for a consensus. In particular, the Committee notes that, according to the Government, a union’s right to appeal decisions of the Registrar is an unrestricted one and that, as regards cancellation, a union remains registered until a final decision has been taken by a judicial authority in the event of a cancellation of registration. The Committee once again requests the Government to ensure that the Royal Court may fully review the substance of cases on appeal.
12. 272. The Committee further notes with interest the Government’s indication that the Minister, following consultations with the Employment Forum, has issued instructions for an amendment to the legislation providing for reinstatement, or to compensation in lieu of reinstatement, in cases of unfair dismissal. The Committee requests the Government to transmit a copy of the amendment as soon as it is drafted.
13. 273. As concerns the requirement that a union represent a “substantial proportion” of the employees in the trade or industry concerned to sign a collective agreement, the Committee notes the Government’s statement that the term “substantial proportion” would not require a union to represent in excess of 50 per cent of the employees concerned, but rather that the representation would need to cover a significant minority of employees. Further noting that no decisions regarding the scope of this term have been handed down, and that consultations would be held with interested parties on the subject of amending the ERL in this respect, the Committee once again recalls that whether a union represents a substantial proportion of employees should be based on objective and pre-established criteria, so as to avoid any opportunities for partiality or abuse, and that where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 976].
14. 274. The Committee takes note of the latest draft codes of practice transmitted by the Government. It also notes that, as set out in code 1 of the draft codes, for unions wishing to engage in recognition disputes before the JET the employer concerned must have employed an average of at least 21 employees in the 13 weeks immediately preceding the day on which the dispute arises. The Committee considers the requirement that the employer concerned have at least 21 employees in order for a union to have recourse to the recognition dispute procedure to run contrary to the principle of free and voluntary collective bargaining. It accordingly requests the Government to take the necessary steps so as to ensure that unions may initiate recognition disputes before the JET even where the employer concerned has less than 21 employees.
15. 275. The Committee notes that according to the Government further consultations would be held concerning the definition of an employment dispute. It once again requests the Government to take the necessary measures to revise the definition of an employment dispute so as to remove the requirement of a pre-existing collective agreement, as well as the requirement that the employer must employ at least 21 employees for a recognition dispute to qualify as a collective dispute.
16. 276. As regards the issue of compulsory arbitration at the request of one party, the Committee – while noting the Government’s indications concerning the scope of the JET’s power to issue binding awards – must nevertheless reiterate that the JET’s power under
    • articles 22–24 of the ERL to issue a declaration, in the absence of the consent of both concerned parties, which incorporates terms and conditions specified therein into individual contracts of employment is tantamount to compulsory binding arbitration contrary to the principle of voluntary negotiation. It once again requests the Government to take the necessary measures to amend the legislation so that compulsory arbitration is only imposed in cases of essential services, public servants exercising authority in the name of the State or where both parties agree.
17. 277. Finally, the Committee notes with regret the Government’s indication that it considers the prohibition on secondary action necessary, so as not to disrupt the life of the island or the provision of necessary services to citizens, and that it does not propose to amend the legislation in this respect. Recalling that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association, the Committee once again requests the Government to take the necessary measures to ensure that sympathy strikes, as well as social and economic protest action, are protected under the law.
18. 278. The Committee encourages the Government to continue to pursue vigorously its dialogue with the social partners on the above matters with a view to bringing the Employment Relations Law into full conformity with Conventions Nos 87 and 98 and draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.