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

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

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Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had requested the Government to enter into dialogue with the social partners to ensure that in cases of anti-union dismissals, workers reinstated by order of a judicial decision may be granted full compensation for loss of pay. The Committee had previously noted that sections 77B and 77C of the Employment (Amendment No. 4) (Jersey) Law, 2009 does not provide the ability to compensate a worker for financial losses such as arrears of pay for the period between the dismissal and the order for reinstatement. The Government had previously reported that public consultation with the Independent Employment Forum in 2008 had led the Forum to conclude that the Employment Law should not be amended. The Government reported that changes to available compensation would have ramifications for the Tribunal system, which thus far had not had to deal with complaints of unfair dismissal since the Employment Law came into force in 2005. The Committee reiterates that in cases of reinstatement following an anti-union dismissal, remedies should also include compensation for loss of wages for the period that elapses between the 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 recalls that sanctions against acts of anti-union discrimination must be to compensate fully, both in financial and in occupational terms, the prejudice suffered (General Survey of 2012 on the fundamental Conventions, paragraph 193). The Committee emphasizes the importance of amending sections 77B and 77C of the Employment Law, and requests once again the Government to enter into dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by order of a judicial decision may be granted full compensation for loss of pay and to provide information on any developments in this regard.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had requested the Government to take the necessary measures to introduce provisions prohibiting acts of interference by employers, as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts. The Government previously noted its intention to review Code 1 – The Recognition of Trade Unions of the Codes of Practice Employment Relations (Jersey) Law 2007 to include a provision to prohibit employer inducement. The Committee notes that although the Government has made great strides to protect against discrimination through the Discrimination (Jersey) Law 2013, it also notes with concern that there is nothing that deals specifically with acts of interference by employers. The Committee recalls the importance of adopting sufficiently dissuasive sanctions against acts of interference, but also enforcing said actions through efficient procedures in practice. The Committee is therefore bound to request the Government once again to take the necessary measures to introduce provisions prohibiting acts of interference by employers or their organizations in the establishment, functioning or administration of workers’ organizations and vice versa, as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts, and this after consulting the social partners. The Committee requests the Government to provide information on any developments in this regard.

Article 4. Promotion of collective bargaining. Legislative matters. The Committee had previously requested the Government to take, after consulting the social partners, the necessary measures to ensure that, if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members, and to provide information on any development in this regard. As there is no information from the Government, the Committee is bound to repeat its previous request. Recalling that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements applicable to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice, the Committee requests the Government to take, after consulting the social partners, the necessary measures to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members. The Committee requests the Government to provide information on any developments in this regard.

Promotion of collective bargaining in practice. The Committee notes with regret that the Government has not provided information on the number of collective agreements concluded and in force, the sectors concerned and the number of workers covered by these agreements. The Committee therefore urges the Government to provide this information in the next report.

The Committee notes with regret that no specific action has been taken to address the different issues raised in its previous comments and hopes that the Government will soon be able to report on progress made in this respect. The Committee recalls that the Government can avail itself of the technical assistance of the Office in this regard.

Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that pursuant to sections 77B and 77C of the Employment (Amendment No. 4) (Jersey) Law, 2009, while the Tribunal can issue an order of reinstatement in the post or a similar post, it 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. 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 order of the judicial authority would be granted full compensation for loss of pay. The Committee notes that the Government states once again that: (i) since the Employment Law came into force in 2005 there have been no Tribunal complaints of anti-union dismissal, therefore no orders for reinstatement resulting from anti-union dismissal have been issued; and (ii) the review of the award-making powers of the Employment and Discrimination Tribunal could be envisaged in the future. The Committee reiterates that in cases of reinstatement following an anti-union dismissal, remedies for loss of wages 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 recalls that sanctions against acts of anti-union discrimination must be to compensate fully, both in financial and in occupational terms, the prejudice suffered (see 2012 General Survey on the fundamental Conventions, paragraph 193).The Committee therefore requests once again the Government to enter into dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by order of a judicial decision may be granted full compensation for loss of pay. The Committee requests the Government to provide information of any developments in this regard.

Article 2. Adequate protection against acts of interference. 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 via the ERL 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. While noting the Government’s indications on the focus given for now to the preparation of a new legislation to provide protection against several grounds of discrimination, the Committee notes with regret that there have been no further developments to date with respect to the protection against acts of interference.The Committee therefore requests once again the Government to take, after consulting the social partners, the necessary measures to introduce provisions prohibiting acts of interference by employers or their organizations in the establishment, functioning or administration of workers’ organizations and vice versa as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts. The Committee requests the Government to provide information of any developments in this regard.

Article 4. Promotion of collective bargaining. Legislative matters. In its previous comments, the Committee had requested the Government to take the necessary action to amend Code of practice 1 with respect to the recognition of trade unions in order to guarantee the right to collective bargaining when no union represents the majority of employees in a bargaining unit. The Committee notes with regret the Government’s indication that, to date, there have been no further developments in this respect.Recalling that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements applicable to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice, the Committee requests the Government to take, after consulting the social partners, the necessary measures to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members. The Committee requests the Government to provide information of any developments in this regard.

Promotion of collective bargaining in practice.The Committee requests the Government to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that pursuant to sections 77B and 77C of the Employment (Amendment No. 4) (Jersey) Law, 2009, while the Tribunal can issue an order of reinstatement in the post or a similar post, it 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. 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 order of the judicial authority would be granted full compensation for loss of pay.

The Committee notes that the Government states once again that: (i) since the Employment Law came into force in 2005 there have been no Tribunal complaints of anti-union dismissal, therefore no orders for reinstatement resulting from anti-union dismissal have been issued; and (ii) the review of the award-making powers of the Employment and Discrimination Tribunal could be envisaged in the future. The Committee reiterates that in cases of reinstatement following an anti-union dismissal, remedies for loss of wages 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 recalls that sanctions against acts of anti-union discrimination must be to compensate fully, both in financial and in occupational terms, the prejudice suffered (see 2012 General Survey on the fundamental Conventions, paragraph 193). The Committee therefore requests once again the Government to enter into dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by order of a judicial decision may be granted full compensation for loss of pay. The Committee requests the Government to provide information of any developments in this regard.

Article 2. Adequate protection against acts of interference. 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 via the ERL 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. While noting the Government’s indications on the focus given for now to the preparation of a new legislation to provide protection against several grounds of discrimination, the Committee notes with regret that there have been no further developments to date with respect to the protection against acts of interference. The Committee therefore requests once again the Government to take, after consulting the social partners, the necessary measures to introduce provisions prohibiting acts of interference by employers or their organizations in the establishment, functioning or administration of workers’ organizations and vice versa as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts. The Committee requests the Government to provide information of any developments in this regard.

Article 4. Promotion of collective bargaining. Legislative matters. In its previous comments, the Committee had requested the Government to take the necessary action to amend Code of practice 1 with respect to the recognition of trade unions in order to guarantee the right to collective bargaining when no union represents the majority of employees in a bargaining unit. The Committee notes with regret the Government’s indication that, to date, there have been no further developments in this respect. Recalling that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements applicable to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice, the Committee requests the Government to take, after consulting the social partners, the necessary measures to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members. The Committee requests the Government to provide information of any developments in this regard.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.

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

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.

Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

The Committee notes that the Government’s report has not been received. It is therefore bound to repeat its previous comments.

Repetition

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 noted 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 noted 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 noted 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.

The Committee hopes that the Government will make every effort to take the necessary action in the near future.

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

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.

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

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.

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

The Committee takes note of the Employment Relations (Jersey) Law 2007 (ERL) which entered into force on 21 January 2008, as well as 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, approved by the Governing Body at its 301st Session (March 2008), paragraphs 261–278).

Article 1 of the Convention. Protection against acts of anti-union discrimination. The Committee notes 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.

The Committee also notes with interest from the Government’s report, that pursuant to the conclusions and recommendations reached by the Committee on Freedom of Association in Case No. 2473, the draft Employment (Amendment No. 4)(Jersey) Law was adopted on 22 October 2008 and is subject to Privy Council approval. The Committee notes that this Law amends the ERL so that under articles 77G and 77C, where a worker has been unfairly dismissed by reason of participation in lawful trade union activities, a Tribunal can issue an order of reinstatement or re-engagement (under terms which are, as far as possible, as favourable as if the employee had been reinstated, unless the employee was partly to blame for the dismissal). The Committee also notes, however, that according to article 77B and 77C, the Tribunal shall 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 re-employment, the reason being that such a possibility of back pay, would render the re-employment option more financially advantageous than the financial compensation currently available to unfairly dismissed employees. The draft also provides that any other rights and privileges, including any improvements in terms and conditions that the employee would have been entitled to, must be restored to the employee from the date of re-employment and not before.

The Committee recalls that the purpose of compensation for acts of anti-union discrimination must be to compensate fully, both in financial and in occupational terms, the prejudice suffered by a worker (General Survey of 1994 on freedom of association and collective bargaining, paragraph 219). The Committee requests the Government to indicate in its next report the measures taken or contemplated to review the provisions of the draft Employment (Amendment No. 4)(Jersey) Law so as to ensure fuller protection and compensation against any prejudice suffered by workers by reason of legitimate trade union activities.

Article 2. Protection against acts of interference. The Committee notes from the Government’s report that there are currently no specific provisions relating to this issue in the EL or the ERL. However, it is 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. This issue was raised in the framework of consultations on the EL and the ERL and the Minister intends that the matter should be given further consideration in the preparation of an amendment. The Committee notes that according to the comments made by the Unite trade union, Code 1 provides that where no prior collective agreement exists in a workplace, recognition may be granted to a trade union for collective bargaining purposes only where 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; 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. The Committee requests the Government to provide its observations on these comments and to keep it informed of any measures taken or contemplated so as to introduce provisions prohibiting acts of interference by employers or their organizations in the establishment, functioning or administration of workers’ organizations and vice-versa (and in particular, against acts designed to promote the establishment of workers’ organizations under the domination of employers’ organizations, or to support workers’ organizations by financial or other means, with the object of placing such organizations under the control of employers or employers’ organizations) as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts.

Article 4. Promotion of collective bargaining. The Committee notes from the conclusions and recommendations of the Committee on Freedom of Association in Case No. 2473 that 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”. In this respect, the Committee notes that according to Code 1, a key criterion 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 recalls 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 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 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 EL, the ERL and its accompanying draft codes of practice as well as the draft Employment (Amendment No. 4) (Jersey) Law, so as to ensure that workers and their organizations enjoy the full guarantee of the rights available under the Convention.

Direct Request (CEACR) - adopted 2006, published 96th ILC session (2007)

The Committee notes the Government’s report.

The Committee notes that the Employment (Jersey) Law, 2003, came into force on 1 July 2005.

The Committee notes that pursuant to section 73 of the Law the right to not be unfairly dismissed (including dismissals on the grounds of trade union membership) is subject to the following conditions: if an employee is employed under a fixed-term contract of 26 weeks, or such other period as may be prescribed, or less, two-thirds of the fixed term should have expired or 13 weeks (whichever is the longer); and the basic contractual hours of employment should be more than eight hours a week in order for an employee to benefit from the protection afforded by the Law. The Committee notes that according to section 77 of the Law, the only remedy possible is compensation awarded by a tribunal.

The Committee recalls that no person shall be prejudiced by reason of his trade union membership or legitimate trade union activities and that it is important for the legislation to lay down adequate safeguards against acts of anti-union discrimination, and in particular against dismissals. The Committee therefore requests the Government to amend the legislation so as to provide for all workers an adequate protection against anti-union dismissals coupled with effective and sufficiently dissuasive sanctions.

The Committee hopes that the Government will take the necessary measures to amend the Law. The Committee requests the Government to keep it informed of the measures taken in this regard. The Committee further requests the Government to provide the text of the draft legislation on collective bargaining and the protection of trade unions and their members in certain circumstances and their right to regulate themselves internally.

Direct Request (CEACR) - adopted 2004, published 93rd ILC session (2005)

The Committee takes note of the Government’s report. It further notes the Draft Employment (Jersey) Law, which should come into force on 1 April 2005. The Committee wishes to raise the following points concerning the draft Law.

The Committee notes that pursuant to section 73 of the draft Law the right to not be unfairly dismissed (including dismissals on the grounds of trade union membership) is subject to the following conditions: on the date of dismissal, the employee should have been continuously employed for a period of not less than 26 weeks, or such other period as may be prescribed, or, if an employee is employed under a fixed-term contract of 26 weeks, or such other period as may be prescribed, or less, two-thirds of the fixed term should have expired; and the basic contractual hours of employment should be more than eight hours a week in order for an employee to benefit from the protection afforded by the draft Law. The Committee notes that according to section 77 of the draft Law, the only remedy possible is compensation awarded by a tribunal.

The Committee recalls that no person shall be prejudiced by reason of his trade union membership or legitimate trade union activities and that it is important for the legislation to lay down adequate safeguards against acts of anti-union discrimination, and in particular against dismissals. The Committee therefore requests the Government to amend the draft legislation so as to provide an adequate protection against anti-union dismissals coupled with effective and sufficiently dissuasive sanctions.

The Committee hopes that the Government will take the necessary measures to amend the draft Law before it enters into force. The Committee requests the Government to keep it informed of the measures taken in this regard. The Committee further requests the Government to provide the text of the draft legislation on collective bargaining and the protection of trade unions and their members in certain circumstances and their right to regulate themselves internally.

Direct Request (CEACR) - adopted 2002, published 91st ILC session (2003)

The Committee takes due note of the information contained in the Government’s report.

The Committee requests the Government to keep it informed of the work of the Employment and Social Security Committee and Industries Committee and asks the Government to send a copy of any legislative drafts aimed at providing statutory recognition and regulation of trade unions on the island.