Observation (CEACR) - adopted 2016, published 106th ILC session (2017)

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

Article 1 of the Convention. Adequate 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 had invited 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 would be granted full compensation for loss of pay.

The Committee notes that the Government recalls that, under the legislation in force, an award for unfair dismissal is based on salary and length of service and there is no option for an employee to seek additional compensation for financial losses following an unfair dismissal. The Government indicates that an increase in the compensation would have ramifications for the Tribunal system – while the Tribunal currently operates a simple procedure and is thus accessible to its users, most of whom litigate on their own behalf, high value claims would be more time consuming and legalistic and may require separate remedies hearings. The Government further notes that since the Employment Law came into force on 1 July 2005 there have been no Tribunal complaints of unfair dismissal or selection for redundancy on the grounds of trade union membership or activities and that, therefore, there have been no related orders for reinstatement or re-engagement resulting from these circumstances.

The Committee recalls that, in cases of reinstatement following an anti-union dismissal, remedies should also include retroactive wage compensation for the period that elapses between dismissal and the reinstatement, as well as compensation for the prejudice suffered, with a view to ensuring that all of these measures taken together constitute a sufficiently dissuasive sanction, as “adequate protection” under Article 1(1) of the Convention. The Committee thus once again invites the Government to enter into dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by the judicial authority may be granted full compensation for loss of pay.

Articles 2 and 4. Adequate 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. 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 had noted the Government’s indication that a provision to prohibit employer inducements would be drafted and that Code 1 would be reviewed in relation to the Convention as part of the proposed wider review of the ERL and codes of practice. The Committee had requested the Government to provide information on any developments. The Committee notes that the Government informs that there has not been any progress to date and, regretting the delay, indicates that work will be undertaken as soon as resources allow it. The Committee expresses its firm hope, once again, that the Government will soon be in a position to indicate progress made with regard to reviewing the provisions of the ERL and the accompanying draft codes of practice, in light of the Committee’s previous comments and to ensure the full enjoyment of all rights and guarantees under the Convention.