Observation (CEACR) - adopted 2010, published 100th ILC session (2011)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Jersey

The Committee notes from the Government’s report that the Employment (Amendment No. 4) (Jersey) Law came into force on 30 June 2009. The Committee further notes that in respect of the other comments made by the Committee in its last observation, the authorities indicate that the review of the employment relations legislation, including the Employment Relation Law (ERL) and its codes of practice, has been delayed due to the global economic downturn and the need to introduce new legislation to give statutory protection to workers in redundancy and insolvency situation. The Committee also notes 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) concerning notably the protection against acts of interference and the promotion of collective bargaining.

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous observation, the Committee had noted from the Government’s report that the Employment (Jersey) Law, 2003 (EL), provides that a dismissal is automatically unfair, from day one of employment, where an employee claims to have been dismissed on grounds relating to: being or proposing to become a trade union member; taking part in, or proposing to take part in, trade union activities at an appropriate time; not being a trade union member, or refusing to become (or remain) a member; and selection for redundancy on grounds relating to union membership or activities. In this respect, the Committee notes with interest that the Employment (Amendment No. 4) (Jersey) Law, 2009, has amended the ERL so that under articles 77B and 77C, a tribunal can now issue an order of reinstatement or re-engagement in cases of unfair dismissals (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).

In its previous comments, the Committee had also noted, however, that according to articles 77B and 77C, the Tribunal does not have the power to compensate an employee for financial losses such as arrears of pay for the period between the dismissal and the order for reinstatement or re-employment. In these circumstances, the Committee requests the Government to take the necessary measures in order to guarantee, in cases of anti-union dismissals: (1) the payment of arrears of pay, for the period between the dismissal and the order for reinstatement or re-employment; and (2) a compensation for the prejudice suffered.

Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had noted from the Government’s report that there are currently no specific provisions protecting against acts of interference in the EL or the ERL, but that it was the Minister’s intention to introduce via the ERL a positive duty to prohibit employers from “buying out” employees’ rights in respect of union activities by inducing employees not to join a workers’ organization, or to relinquish membership of such an organization. The Committee notes the Government’s indication that the authorities are still working on those provisions and intend that the relevant provision will have been prepared in advance of the next reporting period. The Committee requests the Government to provide information on any development in this regard.

Draft code 1 on the recognition of trade unions (code 1). In this regard, the Committee had noted that according to the comments made by the Unite trade union (Unite), code 1 sets out two criteria which it regards as key to recognition: (i) the bargaining unit; and (ii) the wishes of the employees.

(i) The bargaining unit: So far as the bargaining unit is concerned, the code states that, where no agreement has been reached, this criterion will only be taken to have been met if there are no employees in the bargaining unit in respect of whom the employer already recognizes one or more trade unions for the purposes of collective bargaining. According to Unite, such provisions enable the employer to recognize any union in respect of any employees even if the union is not representative, thereby preventing a representative union from accessing the statutory recognition procedure; moreover, the code does not specify that the union so recognized should be independent, which could lead to acts of interference by employers.

In its previous report, the Committee had further noted that the abovementioned criteria concerning the establishment and recognition of a bargaining unit also runs contrary to the principle in the ERL and the codes themselves that unions should be representative of workers. For example, article 1 of the ERL prevents agreements from qualifying as “collective agreements” within the law, unless concluded between an employer and a trade union representing a “substantial proportion of the employees engaged in the trade or industry concerned”. The Committee recalls that the right to collective bargaining of the most representative organization of the bargaining unit should be guaranteed. The Committee hopes that code 1 will be amended in this connection.

(ii) The wishes of the employees: In its previous report, the Committee had noted that according to code 1, the second criteria that is key for trade union recognition is the wish of the majority of employees, and therefore an employer should only be required to recognize a trade union where it can be clearly demonstrated that the majority of the employees within the bargaining unit want the trade union to be recognized by the employer. The Committee had recalled 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 unions in a unit, at least on behalf of their own members. The Committee once again requests the Government to provide in its next report information on the measures taken or contemplated so as to ensure that where no union represents the majority of employees in a bargaining unit, collective bargaining rights are granted to all unions in the unit, at least on behalf of their own members.

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 and the accompanying draft codes of practice so as to ensure that trade unions enjoy the full guarantee of the rights available under the Convention.