Observation (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

Convention (n° 98) sur le droit d'organisation et de négociation collective, 1949 - Jersey

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.