Observation (CEACR) - adopted 2012, published 102nd ILC session (2013)

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

Article 1 of the Convention. Protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that according to sections 77B and 77C of the Employment (Amendment No. 4) (Jersey) Law, 2009, 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. The Committee requested 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. The Committee notes the Government’s indication that, following public consultations in 2008, the Employment Forum, an independent consultation body including representatives of workers, employers and independent members, recommended to the Minister for Social Security that the Employment Tribunal should not have the power to compensate an employee for any financial losses, such as arrears of pay, for the period between the dismissal and the order for re-employment, until such a time as a review of the award-making powers of the Tribunal can be undertaken, which would include a review of how compensatory sums are calculated in other jurisdictions. Moreover, the Minister accepted the concern of the Employment Forum that, given that the equivalent financial compensation is not available to unfairly dismissed employees who are not seeking re-employment, the opportunity to receive additional compensation on these grounds may lead employees to seek re employment as a matter of course, resulting in a reduced number of pre-hearing settlements. The Committee invites the Government to pursue dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by the judicial authority will be granted full compensation for loss of pay.

Articles 2 and 4. Protection against acts of interference and promotion of collective bargaining. In its previous comments, the Committee had noted that there were no specific provisions protecting against acts of interference in the Employment (Jersey) Law (EL) or the Employment Relation Law (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 continue to prepare the relevant provision. The Committee requests the Government to provide information on any development in this regard.

Moreover, the Committee had requested that Code 1 on the recognition of trade unions be amended in order to guarantee the right to collective bargaining of the most representative organization of the bargaining unit and 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 notes the Government’s indication that Code 1 will be reviewed in relation to the Convention as part of the proposed wider review of the ERL and codes of practice. The Committee requests the Government to provide information on any developments in this regard.

The Committee notes that the authorities indicate that they regret that provisions to prohibit employer inducement and a review of the ERL and codes of practice are pending and that the global economic downturn continues to have an impact on Jersey; the review will be undertaken as soon as resources allow it. The Committee understands that this review would improve the protection against anti-union interference and collective bargaining rights.

The Committee expresses its hope, once again, 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.