Observation (CEACR) - adopted 2008, published 98th ILC session (2009)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Jersey

The Committee takes note of the Employment Relations (Jersey) Law 2007 (ERL) which entered into force on 21 January 2008, as well its accompanying draft codes of practice which once adopted, will be “admissible in evidence and may be taken into account in determining any question arising in proceedings before the Jersey Employment Tribunal [JET] or a court” (introduction to the draft codes). The Committee also notes the comments made on this issue by the Unite union in a communication dated 20 November 2007. The Committee finally recalls the conclusions and recommendations reached on the ERL and its accompanying codes by the Committee on Freedom of Association in Case No. 2473 (349th Report, paragraphs 261–278).

Article 3 of the Convention. Right of organizations to organize their activities and formulate their programmes. The Committee notes that the ERL does not confer any positive right to strike, but rather gives in article 19 specific immunity to an act (breach of contract) which would otherwise be tortuous unless carried out by a registered union in contemplation of furtherance of an “employment dispute”. However, where a worker participates in a lawful strike, there is no right in the ERL for such worker to return to work after the strike, but rather only a right to compensation for unfair dismissal, provided for in article 77 of the ERL. The Committee therefore observes that under the ERL, the right to strike is not effectively guaranteed given that workers may not be able to return to work after having lawfully exercised this right.

Furthermore, the Committee notes with interest from the Government’s report that the draft Employment (Amendment No. 4)(Jersey) Law ­ adopted on 22 October 2008 and currently subject to Privy Council approval – will amend the ERL so that under articles 77G and 77C, a tribunal can issue an order of reinstatement or re-engagement (i.e. re-employment under terms which, as far as possible, are as favourable as if the employee had been reinstated, unless the employee was partly to blame for the dismissal). The Committee requests the Government to indicate in its next report progress made in the adoption of this law.

The Committee notes that under article 19 of the ERL, a strike is immune from tort only if it takes place in the framework of an “employment dispute”; according to article 20(3) of the ERL, immunity is lost if the conduct of a trade union does not conform to the definition of “reasonable conduct” when done in contemplation or furtherance of a dispute; the definition of “reasonable conduct” is found in code 2 which provides that it would be unreasonable conduct for a union to call upon employees to take part in secondary action. The Committee recalls that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action where the initial strike they are supporting is itself lawful (General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). The Committee also notes that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and that workers’ organizations should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by members and on workers in general, in particular as regards employment, social protection and the standard of living. The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated to ensure that secondary action and social and economic protest action are protected under the law.

The Committee notes furthermore, that code 2 provides that there is no immunity from tort for picketing or calling upon employees to picket a place of work other than that of the employees as well as for interference (e.g. because of noise or crowds) in the rights of neighbouring properties (i.e. private nuisance) and for trespassing on private property. The Committee is of the view that picketing in support of secondary action should be possible and that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (General Survey, op. cit., paragraph 174). The Committee therefore requests the Government to indicate the measures taken or contemplated to ensure that pickets in support of secondary action is possible and that limitations on strike pickets apply only where the action ceases to be peaceful.

The Committee notes that an “employment dispute” can be according to article 1(1) of the ERL, either individual or collective; a collective employment dispute is defined in article 5 of the ERL as one taking place where a collective agreement already exists. According to Unite, this provision allows the employer to deny union immunity for industrial action simply by terminating the collective agreement; furthermore, in case of a recognition dispute where no collective agreement exists, the conditions allowing for strikes to be staged are met under article 5 of the ERL only where the employer employs more than 21 employees; thus, according to comments made by Unite, industrial action to further a recognition claim in small establishments is not immune from action in tort. The Committee requests the Government to provide its observations on the comments made by Unite and to indicate in its next report the measures taken to ensure that the conditions for protected industrial action are not such as to render such action virtually impossible, especially in relation to recognition disputes in small establishments.

The Committee observes that articles 22 and 24 of the ERL provide that in the absence of the parties’ consent to the terms of a binding award, the JET can issue a declaration which is de facto and de jure integrated in individual contracts of employment and is therefore tantamount to binding arbitration. Code 3 contains similar provisions. The Committee recalls that compulsory arbitration seriously limits the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of Convention No. 87 (General Survey, op. cit., paragraph 153). The Committee requests the Government to indicate the measures taken or contemplated to ensure that compulsory arbitration is only possible in the case of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree to binding arbitration.

The Committee notes that code 2 provides that “a small island community such as Jersey may have services which are considered essential to society which are different to those in the mainland United Kingdom, for example, a stoppage in transport links services would cause greater difficulties and inconveniences that are detrimental to the population”. The Committee recalls that transportation is not an essential service in the strict sense of the term where strikes may be prohibited; however, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, the authorities could establish a system of negotiated minimum service in services which are of public utility rather than impose an outright ban on strikes (General Survey, op. cit., paragraph 160). The Committee therefore requests the Government to indicate the measures taken or contemplated to amend code 2 so as to ensure that transportation is not included among essential services, taking account of the possibility of introducing a negotiated minimum service.

The Committee notes that article 3 of the ERL and code 2 contain a requirement of notice prior to industrial action; the notice should contain such information as to help the employer make plans to enable it to advise its customers of the possibility of disruption, so that they can make alternative arrangements or to take steps to ensure the health and safety of the employees, or the public, or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision. While noting that the obligation to give prior notice before calling a strike is in line with the Convention, the Committee also notes the comments by Unite according to which in one English case, an injunction was granted by the court to stop an industrial action because the union had failed to identify the specific site where each lecturer on strike had their desk, despite the fact that the union had specified the exact number of lecturers, the grade of every lecturer, and the department or sub-department in which they worked; Unite emphasizes that there is no explicit provision to ensure that there is no obligation to name employees who participate in a strike and to confine the information to be provided only to that which is in the union’s possession. The Committee requests the Government to provide its observations on the comments made by Unite and to indicate any judicial decisions relevant to the application by the courts of articles 3 and 20(2) of the ERL as well as code 3.

The Committee finally notes from the Government’s report that further consultation and progress on the legislation is planned once a new Minister for Social Security is appointed after the elections presently taking place in Jersey; it is anticipated that a substantive review or programme of consultation will be undertaken following the Minister’s formal appointment in December 2008. The Committee hopes that the Government will be in a position to indicate in its next report progress made with regard to reviewing the provisions of the ERL, the accompanying draft codes of practice as well as the draft Employment (Amendment No. 4)(Jersey) Law so as to ensure that trade unions enjoy the full guarantee of the rights available under the Convention.