Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 346, Juin 2007

Cas no 2473 (Royaume-Uni de Grande-Bretagne et d'Irlande du Nord) - Date de la plainte: 16-DÉC. -05 - Clos

Allegations: The complainant organization, the Transport and General Workers’ Union (TGWU) alleges that a new statute, the Employment Relations (Jersey) Law 2007 (ERL), violates principles of freedom of association, more particularly as regards the registration of trade unions, the settlement of collective disputes and the right to strike

1464. The complaint is contained in a communication dated 16 December 2005 from the Transport and General Workers’ Union (TGWU). The TGWU submitted additional information in a communication dated 15 February 2007.

1. 1465. The Government submitted its observations in a communication dated 26 February 2007.
2. 1466. The United Kingdom has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1467. In a communication dated 16 December 2005, the TGWU, representing the majority of the unionized workforce of the Island, alleges that a new statute not yet in force, the Employment Relations (Jersey) Law (ERL), violates principles of freedom of association, more particularly as regards the registration of trade unions, the settlement of collective disputes and the right to strike. The TGWU also alleges the lack of provisions prohibiting employers’ financial inducement to encourage workers to give up trade union representation.
2. 1468. The ERL was approved on 17 May 2005 and was at the time of the complaint waiting for the approval of the Privy Council and the Employment and Social Security Committee (ESSC) was consulting on its proposed codes of practice. During the course of debate over the passing of the ERL, the TGWU made several representations and although some changes were made, the TGWU remains deeply concerned, and an emergency motion criticizing the law was carried on 12 July 2005 by the TGWU delegate conference. In its communication dated 15 February 2007, the TGWU indicates that the UK Government has endorsed this legislation through its Privy Council and it is due to be enacted in Jersey as law in the middle part of 2007. The codes are yet to be produced for consultation.
3. 1469. The complainant states that the ERL provides a system of legal identification and registration of trade unions and employers’ associations, clarifies the legal status of these bodies and creates a legal dispute resolution process. The codes of practice for their part cover four aspects: recognition of trade unions, resolving collective disputes, balloting for industrial action and limitations on industrial action.
4. 1470. The complainant argues that there are several respects in which the ERL is not compatible with ILO Conventions namely, registration, the settlement of collective disputes and the right to strike. The complainant then considers further points raised during the consultation process on the codes of practice.
5. Registration
6. 1471. According to the complainant registration under the ERL functions as a gateway to key statutory rights. Under article 7, a trade union or an officer or member of a trade union “shall not do any act in furtherance of any purpose for which the union ... is formed unless it is registered in accordance with this Law”. A trade union which is not registered is incapable of suing in its own name (article 16(4)), nor does it have any immunities from tort law in relation to trade disputes (article 20(1)), and the limitation of damages in tort proceedings is only available to registered trade unions (article 21(1)).
7. 1472. The decision as to whether to register a trade union and whether to cancel the registration is made by a Registrar appointed by the Employment and Social Security Committee (ESSC) (article 8(1)) and the complainant argues that no provision is made to ensure the independence, impartiality or expertise of the Registrar.
8. 1473. Under article 10(1), the Registrar is under a duty to refuse to grant an application for the registration of a trade union if “any of the purposes of the union ... is unlawful”. No further criteria are laid down as to what would constitute an unlawful purpose of a union, except that restraint of trade is expressly stated not to render the purpose unlawful (article 17(1)).
9. 1474. The complainant adds that the Registrar also has powers to cancel the registration, either of his or her own motion or on the application of any person with sufficient locus standi. Registration must be cancelled if any of the purposes of the trade union are unlawful, and it may be cancelled if the registration has been obtained by fraud or mistake, if the union has failed to inform the Registrar of any changes in the constitution, if it has ceased to exist, or if it has failed to comply with a prescribed requirement despite having had at least 21 days’ notice from the Registrar (article 14).
10. 1475. The complainant states that there is no indication of whether the Registrar makes this decision only on the basis of the express purposes of the union as stated in its constitution, or by considering the constitution as a whole, or by considering whether any purposes may be implied from the conduct of the union. Thus, according to the complainant, a union with a history of unlawful conduct perhaps fortified by policy decisions of its annual or (in the case of the TGWU) its biennial delegate conference might find registration refused or cancelled. In the case of cancellation, given that the registration was originally granted, there is also a danger that activities subsequent to registration of the union will be taken into account.
11. 1476. The complainant argues that the only procedural safeguard is in the form of an appeal to the Royal Court (article 15), which may confirm or reverse the decision. The nature of such an appeal is undefined thus opening the possibility that the Royal Court may consider that it may only review rather than rehear the case. If the former view is taken then the Registrar’s decision may only be overturned if it is the product of an error of law or if it is so unreasonable that the court holds that no Registrar properly directing himself on the law and the facts could have reached the decision appealed against.
12. 1477. In the view of the complainant, the registration provisions are highly problematic because of the extent of discretion left in the hands of the Registrar, aggravated by the absence of procedural safeguards or guarantees of independence of objectivity. This is particularly so in determining whether the purposes of a trade union are unlawful. Most importantly, according to the complainant, it is well known from the experience of the law in the United Kingdom that a system which bases the lawfulness of strike action on immunities from tort gives rise to a large number of uncertainties. The ERL does not confer any positive right to strike. Instead it gives specific immunity to an act which would otherwise be tortious by reason of an inducement of breach of contract, or a threat to induce a breach of contract if done by a registered union in contemplation or furtherance of an employment dispute (article 19). A union may not appreciate that industrial action organized by it is unlawful until the matter has been determined by a court (by way of example, the complainant refers to several court judgements). The nature of the protection conferred by the proposed immunity is thus, according to the complainant, very weak indeed.
13. 1478. Furthermore, the complainant argues that the circumstances in which the protection is conferred is yet weaker. It only applies to acts done “in contemplation or furtherance of an employment dispute”. An employment dispute is either an individual employment dispute as defined in article 1(1) of the Employment (Jersey) Law 2003, or a collective employment dispute.
14. 1479. An individual employment dispute is defined by article 1(1) of the Employment (Jersey) Law 2003, as “a dispute between an employer or employers and an employee or employees in the employment of that employer or employers which is connected with the terms of employment or with the conditions of labour of any of those employees or with the rights and duties of an employer or an employee under this Law but does not include a dispute as to the entering into, or the failure to enter into, a contract of employment with a person”. That Law covers various matters including unfair dismissal but it remains unclear according to the complainant as to whether a dispute over the dismissal of an employee would constitute an individual employment dispute where issues of unfair dismissal have not arisen and where the real dispute might be better described as concerning the right of the employer to dismiss at all – a right which derives from contract and not statutory unfair dismissal. Furthermore an individual employment dispute plainly excludes the hiring of new workers.
15. 1480. According to the complainant, a dispute is only collective under the ERL if, inter alia, a collective agreement exists between the employer or employers and the trade union (article 5). The complainant notes that curiously, a collective agreement is defined (article 1) as one between an employer or employers representative of a substantial proportion of employers in the trade or industry and “employees who are representative of a substantial proportion of the employees engaged in the trade or industry concerned”. Thus an agreement between an employer and a trade union would appear not to be a “collective agreement” under the proposed law. More significantly, if the employees did not represent a substantial proportion of those in the trade or industry, an agreement would not count as a collective agreement. Again therefore, it will be seen that the dispute with Gate Gourmet with whom there was a collective agreement but the employees represented only a tiny proportion of those involved in aircraft catering might well not qualify. Furthermore, the proposed law requires that the collective agreement “exists”. An employer could easily deny a union the immunity for industrial action by terminating (in accordance with its terms or otherwise) all collective agreements with the union. It appears that if there is no collective agreement as defined, any industrial action would be unlawful unless it came within the definition of an individual employment dispute.
16. 1481. The complainant argues that a trade union might therefore run the risk of refusal or cancellation of registration if the Registrar considers that its purposes include the taking of industrial action which is unlawful under these provisions. A union which, for example, avowed a policy that it would take industrial action even where it had not achieved a collective agreement or one had been terminated might find its registration refused or cancelled on the basis that it had an unlawful purpose. This is only one example of the extent of the Registrar’s discretion, according to the complainant.
17. Resolution of collective employment disputes
18. 1482. The complainant states that the ERL provides for collective employment disputes to be brought before the Jersey Employment Tribunal (JET) either with the consent of both parties, or by one party if all other available procedures have been applied unsuccessfully and a party to the dispute is acting unreasonably in the way in which that party is or is not complying with an available procedure. Available procedures include procedures in a collective agreement, a relevant contract of employment or a relevant handbook for employees, or an approved code of practice or a procedure which is established with the relevant trade or industry (article 22). The TGWU states that it has already made submissions to the Government that the inclusion in this list of an employer’s handbook permits unilateral imposition of a procedure.
19. 1483. According to the complainant, the JET may make a binding award with the consent of both parties, or a declaration that a party is not observing relevant terms and conditions, or as to the interpretation of any disputed terms and conditions of a collective agreement (article 23). Generally, a declaration simply states the law. In this case, however, it is expressly stated that the declaration will have the effect of incorporating into individual contracts of employment the terms and conditions specified in the declaration, and these will remain until varied by agreement between the parties, by subsequent declaration, or until different terms and conditions of employment are settled through the machinery for the settlement of terms and conditions in the relevant trade, industry or undertaking (article 24).
20. 1484. The inclusion of the declaration as a remedy is an express response to earlier objections to the effect that the collective dispute provisions amounted to unilateral binding arbitration. It was stated then that the use of the declaration removed this risk. The complainant states that it cannot agree. The JET can make a declaration which incorporates the JET’s interpretation of the disputed terms and conditions into the individual contracts of employment. This is still tantamount to binding arbitration. This is particularly problematic where a union has taken industrial action after agreement could not be reached under one of the named procedures. In this circumstance, the employer has the power to refer the dispute to the JET on the grounds that the union is acting unreasonably as defined; and JET has the power to incorporate its interpretation of the terms and conditions into individual employees’ contracts. This is clearly a case of unilateral binding arbitration according to the complainant.
21. The right to strike
22. 1485. The complainant argues that as has been already stated, the ERL has not given workers a positive right to strike, but instead followed the British model of providing immunities from tortious action for acts in contemplation and furtherance of a trade dispute (article 19). Moreover, a collective employment dispute is defined more narrowly than in the United Kingdom in that it requires, among other things, that a collective agreement must exist between the employer or employers and the trade union (article 5), leaving a gap in cases where no collective agreement yet exists or where one has been terminated. In addition, unlike the British legislation, there is no express provision for the lawfulness of picketing and no protection for workers dismissed while on strike.
23. 1486. The complainant is of the opinion that the ERL does provide, in article 18, that an employee is not liable in damages to his or her employer for a breach of contract consisting of a cessation of work, a refusal to work, or a refusal to work in a manner lawfully required by his or her employer where this is in contemplation or furtherance of an employment dispute. However, article 18(2) specifies that this does not affect any other right or remedy of the employer or any other liability of the employee arising out of a breach of a contract of employment. One such implication is that the employee could be held to have committed a fundamental breach of contract, justifying dismissal at common law. Moreover, the Employment (Jersey) Law 2003, contains no specific protection against unfair dismissal during the course of lawful industrial action, apart from the general protection for unfair dismissal. In the absence of such protection whilst the bringing of an unfair dismissal claim by a striker is not debarred, it is also overwhelmingly likely to fail because the employer will assert that the dismissal was justified by the striker’s conduct in wilfully refusing to carry out his obligations under the contract and/or in seeking to disrupt the employer’s business (Ticehurst v. British Telecommunications pic [1992] ICR 383 CA), thus amounting to a fundamental and repudiatory breach of contract or, at the least, gross misconduct.
24. 1487. The complainant also believes that ILO Conventions also require that workers dismissed for taking part in a lawful strike should be entitled to reinstatement if the dismissal is unfair. Although the Employment Law (Jersey) Law 2003, does not expressly preclude an application for unfair dismissal by employees dismissed due to industrial action, article 76 only provides a remedy of compensation and not reinstatement.
25. The financial inducement
26. 1488. Moreover, concerning employer inducement, the complainant states that despite the finding by the European Court of Human Rights in Wilson and Palmer v. United Kingdom [2002] IRLR 128, that law permitting an employer to make financial inducements to encourage employees to give up trade union representation was a breach of Article 11 of the European Convention on Human Rights and Fundamental Freedoms (ECHR), there is no provision prohibiting such inducements in Jersey legislation.
27. The codes
28. 1489. The complainant first describes the status of the codes, and then describes each of the four codes, drawing on a comprehensive response prepared to the consultation papers on the codes.
29. 1490. According to the complainant, as a result of representations made by the TGWU, the ERL was amended to give codes of practice the status of an Order in Council, or subordinate legislation, which means that they cannot come into force sooner than 28 days after the Order is before the States, which may annul it. Moreover, a code cannot be approved that contravenes an international obligation that is binding on Jersey. Before approving a code, the ESSC must publish a notice inviting interested persons to inspect the proposals and to make representations, which must be considered by the Committee when deciding whether or not to approve the code.
30. 1491. The complainant considers these as welcome amendments. However, as well as giving the codes a more robust legal basis, the amendments have reinforced their function as integral to the operation of the legislation. Although failure to observe an approved code of practice does not in itself make a person liable to proceedings, immunities from liability are withdrawn if a code of practice provides for a holding of a ballot of members and the action is not taken in accordance with such a ballot. A trade union is also not protected from liability in tort for action that is defined in an approved code of practice as conduct that is not reasonable when taken in respect of an employment dispute. However, this reinforced function does not apply to recognition, which still cannot be enforced in a court of law. Although disputes can be referred to the Jersey advisory and conciliation service, it only has power to make recommendations. And because a collective employment dispute requires a collective agreement to be in place, a dispute over recognition would not in itself be a collective dispute giving unions immunity against tortious action in respect of any industrial action taken to achieve recognition. This asymmetry within the legislation is of concern.
31. 1492. Concerning code 1 and recognition of trade unions. As regards representativeness, the complainant states that a union should be entitled to be recognized if it can demonstrate that 50 per cent plus one of the employees in the bargaining unit are members of the union, or if it can show in a ballot that 50 per cent plus one of the employees are in favour of recognition. The Employment Forum (a tripartite consultative body) in its report of 1 February 2005 partially accepts these figures, proposing, however, that if the employer does not accept the union’s estimate of its membership, or if membership is below 50 per cent plus one, then a ballot is necessary, and a ballot can only be held if at least 35 per cent of the bargaining unit are in membership of the applicant union or would be willing to take up membership if recognition were granted. This is significantly higher than the figure in Britain, where a union is entitled to call for a ballot where 10 per cent of the bargaining unit are in membership and there is other evidence indicating a majority would be likely to support recognition in a ballot.
32. 1493. According to the complainant, a number of concerns exist about the process of achieving recognition, and in particular the supervision of the process, the ballot and the resolution of disputes. All of these remain to be addressed, as does the proposed exemption for small businesses, employing ten or fewer employees, which would have the effect of excluding 80 per cent of the island’s employers. According to the complainant, in order to comply with ILO obligations, Jersey is required to “encourage and promote the full development” of collective bargaining. To exclude such a large proportion from the procedures would cast doubt on that policy. Moreover, according to the complainant, the ILO considered that all unions should have the right to make representations on behalf of their members and represent them in individual grievances. This entails that, at the very least, there should be a right to be represented even in workplaces with ten or fewer employees.
33. 1494. Concerning code 2 and the procedure for resolving disputes. The complainant states that the issue of binding arbitration has been dealt with above. The further major difficulty is the definition of reasonableness for the purposes of the code, particularly since a union may lose its registration and hence its immunities for actions in tort if it is acting unreasonably in its use of procedure and the Registrar considers that acting in that way was one of the union’s purposes. The code would need to provide very clear guidance as to what is reasonable and unreasonable in this respect.
34. 1495. Concerning code 3 and balloting on industrial action. The Employment Forum suggests that the code should not be overly prescriptive so as to avoid conflicting with provisions in unions’ own rule books. According to the complainant, this is a welcome recognition of the importance of union autonomy. However, the major point of contention remains that of notice before industrial action. The code provides that employers should be given such notice as necessary to warn customers, ensure the health and safety of employees or the public or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision. It gives, as an example, the number, category or workplace of the employees concerned. While the Employment Forum suggests that it would be reasonable to expect an employer to be provided with enough information to work out how the business will be affected, it is doubtful whether precise information as to the numbers, categories and workplaces of employees concerned is necessary to achieve that objective. Experience in England and Wales has shown in the last few years that allegations of inaccuracy in ballot notices is the principle ground on which injunctions are sought to restrain unions from industrial action. Thus earlier this year in an unreported decision (University of North London v. NATFHE) an injunction was granted because though the union had specified the grade of every lecturer to be called out on a one day strike and identified the exact number and specified in relation to each which department or subdepartment he or she worked in so that by consulting the timetable the university could ascertain every lecture which would not be given and the room in which it should have been delivered, the failure to identify at which site each lecturer had his or her desk was a breach of the requirement to specify workplaces.
35. 1496. According to the complainant, particularly serious is the link between the requirements for balloting and the retention of trade union immunity. article 20(2) of ERL provides that immunity is lost if an approved code of practice provides for the holding of a ballot and the ballot has not been held in accordance with the approved code, or a majority of those balloted do not support the industrial action. This means that even if a majority of those balloted support the action, a union could lose its immunity and a strike could become unlawful if even a small detail of the approved code has not been complied with. In particular, if a union does not give sufficient information to the employer to enable it to make plans to mitigate the effect of the strike, then even an overwhelming majority in favour of the action will not save it from unlawfulness. The experience in the United Kingdom bears ample testimony to the ability of employers to find breaches in the balloting provisions in British legislation and on the basis of this to gain an injunction or other remedy to prevent the strike.
36. 1497. Concerning code 4 and limits on industrial action. This code deals with three proposed limits: essential services, secondary action and picketing. The complainant deals particularly with the last two.
37. 1498. Secondary action. The code of practice states that it would be unreasonable to take industrial action in furtherance of a collective dispute in the following circumstances: (i) where action is taken in support of a third party; (ii) where employees are not directly involved; (iii) where the dispute is not with the same employer; (iv) where the employees are not at the same place of work as those directly affected. The Forum suggested that all four could be summed up in a single definition of secondary action, namely “where the employees are not a party to the dispute”. Article 20(3) provides that an immunity is lost if the conduct of a trade union does not conform to the definition in a code of practice of reasonable conduct when done in contemplation or furtherance of an employment dispute. Thus secondary action as here defined would render a strike unlawful and expose the union to liability in tort.
38. 1499. According to the complainant, the ILO has reiterated on numerous occasions that workers should be able to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and that they should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful. A ban on secondary action is also in breach of the European Social Charter. It is clear that the effective ban on secondary action, through the fact that it is classed as unreasonable behaviour and therefore has the effect of removing union immunities, is in breach of Jersey’s international obligations. Thus a union which had as a policy of upholding Jersey’s international obligations by supporting secondary action where the protection of the interests of its members required might well find its registration denied or removed. This would appear to be inappropriate, to say the least.
39. 1500. Picketing. The code of practice provides that picketing is considered reasonable only when it is for one of the following two purposes: to peacefully obtain and communicate information; or to peacefully persuade a person to work or not to work. The code goes on to state that picketing in these two circumstances would be protected by immunities if all of those union members who are likely to be called to take part in the action have been balloted (in accordance with the code) and the majority of those are in favour of taking (or continuing) industrial action.
40. 1501. However, since, as mentioned above, there is no express provision in the ERL for picketing, the immunities mentioned are only for the torts specified in article 19, namely inducement or threat of inducement of breach of contract. This means that even if all the conditions are satisfied, namely the picket is supported by a ballot and its aim is to peacefully persuade or communicate information, it could still entail the commission of a civil wrong. Indeed the code states expressly that picketing is not protected from civil suits such as “obstruction of a path, road, entrance or exit to premises; interference (e.g. because of noise or crowds) in the rights of neighbouring properties (i.e. private nuisance) and trespassing on private property”. It might be very difficult to hold a picket without some obstruction of a path, road, entrance or exit to premises and if these are unlawful under Jersey law, the union could not picket lawfully. It is our view that to give no immunity from such liability runs the risk of breaching the right to freedom of expression in Article 10 and/or freedom of assembly in Article 11 of the ECHR.
41. 1502. Suggestions that the right be further restricted to the employees’ own place of work and to a maximum of six pickets received some support, but the TGWU’s submission that it would be preferable to use a criterion of peacefulness is noted by the Employment Forum. It is not clear, however, which approach is to be used.
42. B. The Government’s reply
43. 1503. In its communication dated 26 February 2007, the Government seeks to provide a summary of Jersey’s constitutional position and a chronology of events, and identify key issues arising from the complaint.
44. 1504. Regarding Jersey’s constitutional position, the Government indicates that Jersey is a dependency of the British Crown. It is politically and legally separate from the United Kingdom. By adoption in the States of Jersey, its parliament, it passes its own laws, which require Royal Assent from Her Majesty the Queen before coming into force. Assent to the Employment Relations (Jersey) Law 2007 (the ERL) was given by Her Majesty in Council on 14 December 2006. Although Jersey people have no representation in the Westminster Parliament, the United Kingdom, as the sovereign state, has ultimate formal responsibility for the Island’s international relations.
45. 1505. The Government provides the Committee with a detailed chronology of events, starting in November 1997, when the (then) ESSC was given responsibility for industrial relations matters and was charged by the States of Jersey (the States) to introduce an industrial relations strategy for the Island to overcome the shortcoming of existing employment legislation. In November 1998, it lodged a report on minimum wage legislation based on research that had been carried out during the previous year. The same month, following substantial research into employment law and industrial relations practices worldwide, the ESSC issued a detailed consultation document which was circulated Island-wide; a number of meetings were held to seek the views of the community, including trade unions, employer associations and other relevant groups and individuals.
46. 1506. In May 1999, the drafting brief for the Minimum Wage Law was considered by the Island’s Law Draftsman who indicated that this law could not be effectively implemented until such time as basic employment legislation supporting it (and also a system to deal with its enforcement) was in place. In December 2000, responses to the first consultation document were collated and presented to the States; it proposed to introduce legislation to facilitate the introduction of the minimum wage, establish acceptable contractual standards and revise the Industrial Disputes (Jersey) Law 1956. The proposition was subsequently debated and approved by the States Assembly.
47. 1507. In July 2001, the ESSC issued a second consultation document which examined trade union legislation and legal dispute resolution procedures in more detail, using expert advice drawn from both inside and outside the Island and including a comparative study of legislation and systems in other jurisdictions (particularly smaller states). It also highlighted the general approaches worldwide and analysed the status of trade unions, trade union regulation and governance, the regulation of employer–employee relationships, the definition and regulation of legitimate industrial action and the institutional frameworks.
48. 1508. In July 2002, a report was presented to the States which confirmed that responses to the second consultation document showed reasonable consensus on the general approach to new legislation in that it should be (i) non-adversarial, with (ii) minimal legislation, and have (iii) clear definitions/a simple registration process. The law drafting brief for the new ERL drew heavily on the report which the States had received.
49. 1509. In November 2002, the Regional Secretary of the TGWU (South and West), was contacted soon after his appointment to this role by the Controller (the Chief Executive Officer) of the Employment and Social Security Department to inform him of progress in the employment legislation and of the proposals for employment relations legislation. He was encouraged to meet further with the Employment and Social Security Department officials to give his views. In July 2003, the Employment (Jersey) Law 2003 was debated and adopted by the States.
50. 1510. In September 2004, a draft of the ERL was prepared and the ESSC circulated it widely for consultation. The first draft was later revised in the light of consultation responses. Concurrently, the Employment Forum began consultation on the codes of practice required to support the ERL. The Forum has a balance of representatives (three employer, three employee and three independent). The outcome of the Forum’s consultation was presented to the ESSC in a report on the proposed content of the codes, which was appended to the ERL when it was first presented to the States. On the basis of that report, draft codes of practice have since been prepared and consulted upon and a current working draft of the codes of practice is available.
51. 1511. On 22 March 2005, the ERL was due to be debated by the States, as was an amendment to the draft law proposed by Deputy G.P. Southern (a member of the States Assembly who acknowledged his proposed amendments were being brought on behalf of the TGWU). The States approved a request by Deputy G.P. Southern to refer the ERL back to the ESSC for further consultation. During that extended period of consultation, although discussions focused on the TGWU, all of those who had previously been consulted received a copy of the revised ERL and draft codes of practice and were encouraged to submit any further comments. The ESSC gave priority to the discussions that took place with the TGWU over the period of further consultation with the genuine hope that some clarification and measure of agreement could be achieved. Although agreement could not be reached on every point, the ESSC moved its position on one aspect of the proposed amendment (namely mandatory and prohibitory injunctions) and found an acceptable solution with the TGWU on another aspect (namely employees’ handbooks). That consultation period ended in full understanding between the TGWU and the ESSC of where compromises could and could not be found. The ESSC tried as far as possible to put forward legislation which reflected the general views of the community, based on consultation outcomes. Remaining issues that could not be agreed were proposed to the States by Deputy G.P. Southern. As a result, the main points of difference were to be decided by the States by the democratic process.
52. 1512. On 17 May 2005, the ERL was debated and adopted by the States. Deputy G.P. Southern’s remaining amendments were not debated as he withdrew them. On 1 July 2005, the Employment (Jersey) Law 2003, came into force. This law amended and consolidated enactments relating to employers’ obligations to specify terms of employment, the payment of wages, and the notice required to terminate contracts of employment; provided for compulsory minimum periods of leave and rest time for employees; provided employees with rights not to be unfairly dismissed and to be paid a minimum wage; and repealed and replaced enactments for the establishment and jurisdiction of Tribunals to hear and determine employment disputes.
53. 1513. On 4 October 2005, Deputy G.P. Southern lodged a report and proposition asking the ESSC to review the ERL, the Employment (Jersey) Law 2003, and the draft codes of practice in order “to identify if there were any provisions which denied employees the fundamental rights to recognition and representation, or that might breach Conventions Nos 87 and 98, and, if any such provisions were identified, to take the necessary steps to remedy the situation”. That report and proposition appended the Hendy/Fredman Opinion (the Opinion), which has now been submitted to the ILO by the TGWU as its complaint.
54. 1514. On 21 March 2006, the Minister for Social Security (the Minister) (previously the ESSC) presented the States with a response to that Opinion, stating that a thorough review had been undertaken, expert and legal advice had been taken, and that it was the Minister’s belief that the primary legislation and the draft codes of practice achieved the right balance. The report and proposition was withdrawn by Deputy G.P. Southern on 23 May 2006, and was not debated.
55. 1515. On 16 May 2006, Deputy G.P. Southern withdrew a proposed amendment to the draft ERL relating to the recognition of unions in favour of an amendment presented by the Minister. Deputy G.P. Southern also proposed an amendment to the Employment (Jersey) Law 2003, relating to employees’ “rights to representation” in a grievance or disciplinary matter. This was rejected by the States (by 24 votes to 23).
56. 1516. On 4 July 2006, the Minister’s proposed amendment to the ERL relating to the recognition of unions was approved by the States. Broadly, this amendment provides that the JET can make an enforceable declaration on recognition and collective bargaining in relation to pay, hours and holiday. It also limits the extent of these new provisions to employers with 21 or more employees.
57. 1517. Regarding the key issues, the Government states that the ERL should be viewed as part of a structured programme of legislative reform: (1) Jersey has generally had a very good industrial relations record for decades and it is considered that the ERL clarifies the legal situation and improves on its forerunner, the Industrial Disputes (Jersey) Law 1956. (2) The debate on the priority to be given to employment and employment relations legislation took place in the States Assembly in December 2000. The draft legislation was prepared following extensive consultation with social partners, with a view to conferring rights within a balanced legislative framework. It is the product of a sound democratic process and draws on aspects of the United Kingdom and the Isle of Man legislation, and also on codes of practice and advisory guides provided in the United Kingdom, Isle of Man and Northern Ireland. (3) Jersey Advisory and Conciliation Service is available to advise, assist and train employers, employees and unions with guidance on the law, model employment relations procedures and any assistance required with balloting, negotiations, and dispute resolution generally. (4) The legislation is intended to encourage discussion and resolution of disputes as quickly as possible, with a minimalist legal framework that is appropriate to the Island’s small community. Confrontation between unions and employers is usually more avoidable in a small community because there is better awareness of the other party’s position and of the views of the community at large. The legislation accordingly provides a simple and straightforward system of legal identification and registration of trade unions and employer associations, to give those bodies legal characteristics, rights and obligations that they do not have in customary law. (5) One of the major tasks in preparing this legislation was to reconcile the freedoms of individuals and employers with the freedoms of unions. The TGWU view which emerged during the discussions was that the legislation should provide mandatory recognition of trade unions for collective bargaining purposes and that all other aspects should be voluntary. One major concern appeared to relate to balloting procedures as the TGWU rule book allows a show of hands as acceptable balloting. However, the consultation outcomes endorse the procedure set out in the draft code of practice, i.e. where industrial action is contemplated, it should be decided in a secret ballot by the union members as a whole. (6) Each jurisdiction sets a legal framework which is geared to the needs of its own industrial relations traditions and practices, e.g. some outlaw strikes for the duration of a collective agreement. The ERL reflects Jersey’s experiences and needs (for example, the unique needs of a small island to maintain supplies and services to the population of less than 90,000, few opportunities to borrow resources from other jurisdictions at times of crisis, a large percentage of small businesses (75 per cent with five or less employees and 93 per cent with 20 or less) and only one union with a full-time officer in the Island). (7) The ERL contains provisions in its Schedule (see Sch 2 (6)) which make dismissal for official industrial action automatically unfair. (8) The Minister recognizes that the ERL forms part of an ongoing process of reform, and that the community may want to see it amended from time to time. Engagement with all the social partners is viewed as a vital part of that process. The Minister is aware that there is still much work to do in developing other appropriate employment legislation for Jersey, and work is well under way to introduce necessary provisions relating to business transfer, redundancy, maternity and paternity rights. Consultation on business transfers legislation closed in August 2006 and formal consultation on a draft Discrimination Law, and Race Discrimination Regulations began in July 2006.
58. 1518. The Island hopes to provide comfort on some of the points raised. In doing so, it is to be emphasized that the opinion submitted by the complainant has been very carefully considered. Their views have not been entirely accepted but even where this is so, the Island authorities have noted their undoubted experience in the matters under review.
59. 1519. On the subject of registration, the compulsory registration system borrows from the practice of other jurisdictions which have received favourable response from the ILO (e.g. 1992, Isle of Man – “the Committee considers that the compulsory registration system established by the 1991 Act does not run counter to the requirements of Convention No. 87”) and addresses these conclusions in relation to the cancellation of registration (see article 14 of the ERL). Attention is drawn to various safeguards in relation to registration: (1) the Registrar is an official who is independent of the Minister; (2) a decision reached by the Registrar is subject to a right of appeal which is compliant with Article 6 of the ECHR; (3) whilst concerns have been raised regarding the possibility of deregistration in the case of a trade union on “unlawful purpose” grounds, it is submitted that this is a very narrow head. It can be easily distinguished from a trade union which was set up for lawful purposes but acts unlawfully. It is understood that it would not be possible for the Registrar to lawfully deregister such a trade union in such circumstances; (4) the Minister is keen to emphasize that all trade unions existing at the time of the ERL coming into force would be registered as a matter of course.
60. 1520. Concerning the declarations, the Government states that, whilst noting carefully the cogent arguments expressed to the contrary, the Minister is not persuaded that the role of collective bargaining is usurped by the ability of the JET to make a declaration. It is noted that: (1) a unilateral reference may only be made where one party is held to be acting unreasonably by the JET; (2) the JET is a judicial (rather than an administrative) authority. This is considered relevant when anticipating the nature of any such declaration and in distinguishing the position from adverse comments in the Digest of decisions and principles of the Freedom of Association Committee, 1996; (3) the power of the JET does not extend to fixing the amount of wages or the content of other terms which have not been agreed by collective bargaining; (4) the terms of any declaration shall apply until the parties agree alternative terms.
61. 1521. Regarding reinstatement, the Government indicates that one particular issue discussed in the complaint is an employee’s right to reinstatement when a dismissal is found to have been unfair, in this case, on the basis of having taken industrial action. The ESSC took advice on this matter in the early days of preparing the Employment (Jersey) Law 2003. In its December 2001 report, the Employment Forum recommended that this provision should not be included in Jersey’s legislation; “Research has shown that in other jurisdictions there is provision for Tribunals to order that the dismissed employee should be reinstated to their previous employment after a decision of unfair dismissal has been determined. Having carefully considered this issue the Forum is of the opinion that there is nothing to be gained by having such a provision present in Jersey legislation. Of course, should both parties wish to enter into a new contract of employment there would be nothing to prevent this.” The ESSC accepted the recommendation and the 2003 Law was drafted accordingly. Whilst statistics published by the UK Employment Tribunals Service indicate that in 2000–01 only 15 out of 5,294 unfair dismissal cases upheld by the Tribunal resulted in re-employment, the Minister has requested that the Employment Forum reconsiders the matter of re-employment (including both reinstatement and reengagement).
62. 1522. Regarding employer inducement, the Government takes note of the complainant’s point that there is no provision in Jersey legislation to prohibit financial inducements to encourage employees to give up trade union representation and its claims that this is in breach of Article 11 of the ECHR. The Minister accepted this point and the TGWU is aware that work is under way to draft an amendment to make relevant provision.
63. 1523. Concerning recognition, the Government indicates that significant amounts of consultation have been carried out and the Minister has accepted, and personally proposed, a number of changes to improve the ERL. In particular, progress has been made on the union’s rights to recognition for collective bargaining purposes and the procedure required for the making of codes of practice. A further amendment to the ERL in respect of recognition rights has been approved by Jersey (the Employment Relations (Amendment) (Jersey) Law 2003). It is believed to address the situation where a trade union is not recognized by an employer and/or where a collective agreement has not been finalized.
64. 1524. The Government indicates that it was the intention of Jersey in introducing the ERL to remove uncertainty as to the rights of employees and set mutual obligations in the context of modern practice, providing unions with separate legal personality. The legislation is not intended to be “anti-trade union”. It gives unions (and associations) rights in law that they did not have before. Jersey has sought to engender a non-adversarial approach to negotiation and conciliation with a view to creating more harmonious relationships at work. This is essential in a small community where there is a greater need perhaps for all the community to work together. The ERL is intended to be modern and proportionate whilst, as a constituent part of a legislative reform programme, remaining faithful to ILO Convention–ECHR requirements.

C. The Committee’s conclusions

1. 1525. The Committee notes that the present case concerns allegations that the Employment Relations (Jersey) Law (ERL), approved on 17 May 2005, violates freedom of association principles, more particularly as regards the registration of trade unions, the settlement of collective disputes and the right to strike.
2. 1526. The Committee takes note that the draft ERL has received assent by the Privy Council and that it will be enacted as law in the middle part of 2007 but that the codes of practice are yet to be produced for consultation.
3. 1527. The Committee further notes that the draft ERL was amended in July 2006 (Employment Relations (Amendment No. 2) (Jersey) Law 2003). This amendment regards the definition of a collective employment dispute, which has been extended to include recognition dispute, and the referral of such a dispute to the JET. The amendment, however, states that a recognition dispute between an employer who employs fewer than 21 employees and a trade union is not a collective dispute.
4. 1528. The Committee takes note of the comprehensive complaint submitted by TGWU which deals with four issues of concern: registration, the right to strike, the definition of a collective agreement, and the resolution of collective disputes. Several issues regarding the codes of practice are also of concern.
5. 1529. The Committee notes that in its reply, the Government provides a lengthy and detailed account of the chronology of events which gave rise to the ERL. The Committee notes that these events started in November 1997. Furthermore, the Committee notes that this chronology of events highlights the dialogue that has been taking place between the social partners and the fact that the TGWU’s allegations were taken up by a Deputy and presented to the Parliament of Jersey. Moreover, amendments were made to the draft in the light of the consultation process. The Committee further notes that the Government indicates that it believes to have had generally a very good industrial relations record and that the ERL clarifies the legal situation. Furthermore, the ERL is adapted to the size of the Island, the fact that it has a population of less than 90,000, few opportunities to borrow resources from other jurisdictions in time of crisis, a high percentage of small businesses, and only one union on the island. The Committee notes that the Government raises the fact that the legislation intends to encourage discussion and resolutions of dispute as quickly as possible, taking into account the small size of the community which permits a better awareness of the parties’ positions. The Committee, however, observes that the Government’s reply does not directly respond to all the specific issues raised by the complainant such as the right to strike, the definition of an employment dispute, and the content of the codes of practice.
6. Registration
7. 1530. As regards the registration of a trade union, the Committee notes that a union needs to be registered under Jersey law in order to function properly (article 7). The Committee notes that the Registrar may refuse registration, or cancel it, if any of the purposes of the union are unlawful (articles 10(1) and 14). The Committee takes note of the complainant’s position that there is no indication as to whether the Registrar makes this decision only on the basis of the express purposes of the union as stated in its constitution, or by considering the constitution as a whole, or by considering whether any purposes may be implied from the conduct of the union. In the case of cancellation, there is also a danger that activities subsequent to registration of the union will be taken into account. The Committee notes that the Government indicates that while concerns have been raised regarding the possibility of deregistration in the case of a trade union on “unlawful purpose” grounds, this is a very narrow head and that it can be easily distinguished from a trade union which was set up for lawful purposes but acts unlawfully. According to the Government, it is understood that it would not be possible for the Registrar to lawfully de-register such a trade union. The Committee expects, as the Government contends, that this article will not be used by the Registrar to cancel a union’s registration in the case of, for example, the exercise of industrial action which the Registrar considers unlawful and that this article only concerns the purposes of a union which may go beyond the legitimate objectives of the defence of its members’ interests and prove the intention to disrupt the constitutional order. The Committee considers that the ERL must be more precise, to avoid any confusion and specify, as the Government indicates, that the Registrar may only consider the express purposes of the union as set forth in its constitution or clear criminal acts that are not covered by the principles of freedom of association in order to exercise its authority under articles 10(1) and 14.
8. 1531. As regards the possibility to appeal this administrative decision, the Committee notes under article 15 of the ERL, that appeal to the Royal Court may confirm or reverse a decision to cancel registration and a decision to refuse to grant registration. In case of cancellation of registration, the Committee recalls that any possibility should be eliminated from the legislation of suspension or dissolution by administrative authority, or at the least it should provide that the administrative decision does not take effect until a reasonable time has been allowed for appeal and, in the case of appeal, until the judicial authority has ruled on the appeal made by the trade union organizations concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 704]. The Committee requests the Government to take measures to ensure that a union remains registered until a final decision has been taken by a judicial authority. Furthermore, the Committee notes that according to the complainant, the nature of such an appeal is undefined thus opening the possibility that the Royal Court may consider that it may only review rather than rehear the case. If the former view is taken then the Registrar’s decision may only be overturned if it is the product of an error of law or if it is so unreasonable that the court holds that no Registrar properly directing himself on the law and the facts could have reached the decision appealed against. The Committee would recall in this regard that judges should be able to deal with the substance of a case to enable them to decide whether or not the provisions pursuant to which the administrative measures in question were taken constitute a violation of the rights accorded to occupational organizations by Convention No. 87. In effect, if the administrative authority has a discretionary right to register or cancel the registration of a trade union, the existence of a procedure of appeal to the courts does not appear to be a sufficient guarantee; the judges hearing such an appeal could only ensure that the legislation had been correctly applied. The same problem may arise in the event of the suspension or dissolution of an occupational organization [Digest, op. cit., 2006, para. 705]. The Committee requests that the Government will ensure that the Royal Court may fully review the substance of cases on appeal.
9. Right to strike under the ERL
10. 1532. The Committee notes that the ERL does not confer any positive right to strike and instead, gives specific immunity to an act which would otherwise be tortious by reason of an inducement of breach of contract, or a threat to induce a breach of contract if done by a registered union in contemplation or furtherance of an employment dispute (article 19). The Committee takes note of the complainant’s allegations concerning the uncertainties that this situation raises, for example, a union may not appreciate that industrial action organized by it is unlawful until the matter has been determined by a court. Moreover, the Committee takes note of the complainant’s submissions regarding the lack of provisions concerning reinstatement in cases of dismissal for participating in a legal strike, as the Employment (Jersey) Law 2003, only provides for compensation in cases of unfair dismissal (article 77). The Committee recalls that the right to strike is one of the essential means through which workers and their organizations may promote their economic and social interests and is an intrinsic corollary to the right to organize protected by Convention No. 87 [Digest, op. cit., 2006, paras 522 and 523]. Moreover, the Committee recalls in this regard that no one should be penalized for carrying out or attempting to carry out a legitimate strike [Digest, op. cit., 2006, para. 660]. Noting that the Government indicates that the Minister has requested the Employment Forum to reconsider the matter of re-employment (including both reinstatement and reengagement), the Committee expects that the Government will ensure respect for these principles and guarantee that workers are not sanctioned for carrying out legitimate trade union activity and ensure effective protection against any retaliatory acts aimed at penalizing workers for exercising trade union activity.
11. Definition of an employment dispute
12. 1533. The Committee notes that the above protection concerning immunity conferred by the Law only applies to acts done “in contemplation or furtherance of an employment dispute”. An employment dispute is either an individual employment dispute as defined in article 1(1) of the Employment (Jersey) Law 2003, or a collective employment dispute. The Committee notes that a dispute is only collective under the ERL if: (1) a collective agreement exists between the employer and the trade union, or (2) if the dispute is a recognition dispute and is between an employer who employs more than 21 employees and a trade union (article 5, as amended).
13. 1534. The Committee notes with concern in this regard that a collective agreement is defined as one between an employer, or an organization of employers that is representative of a substantial proportion of employers in the trade or industry and “employees who are representative of a substantial proportion of the employees engaged in the trade or industry concerned” (article 1). The term “substantial proportion” is undefined, and the fact that it is referring to the number of employees of the trade or industry concerned would appear not to leave the determination of the bargaining level to the discretion of the parties. The Committee recalls in this respect that according to the principle of free and voluntary collective bargaining embodied in Article 4 of the Convention, the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and that, consequently, the level of negotiation should not be imposed by law, by decision of the administrative authority or by the case law of the administrative labour authority [Digest, op. cit., 2006, para. 988]. The Committee further notes that it would appear that an agreement between an employer and a trade union that does not represent a “substantial proportion of the employees engaged in the trade or industry concerned” would not qualify as a “collective agreement” within the law, whereas such agreement should be possible where no union has met the representativeness requirement. In such cases, the complainant argues that it would not have any available recourse to the JET.
14. 1535. The Committee recalls that for a trade union at the branch level to be able to negotiate a collective agreement at the enterprise level, it should be sufficient for the trade union to establish that it is sufficiently representative at the enterprise level [Digest, op. cit., 2006, para. 957]. As in systems requiring majority representation, the Committee considers that decisions concerning whether a union represents a substantial proportion of employees should be based on objective and pre-established criteria so as to avoid any opportunities for partiality or abuse. Moreover, 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 should be granted to all unions in this unit, at least on behalf of their own members [Digest, op. cit., 2006, para. 976].
15. 1536. The Committee further notes the complainant’s argument that the proposed law requires that the collective agreement “exist” and an employer could easily deny a union the immunity for industrial action by terminating (in accordance with its terms or otherwise) all collective agreements with the union. It appears to the complainant that if there is no collective agreement as defined, any industrial action would be unlawful unless it comes within the definition of an individual employment dispute. The Committee considers that the definition of protected industrial action should not be such as to render strike action virtually impossible and requests the Government to take measures to ensure that industrial action is protected even in the absence of a pre-existing collective agreement.
16. 1537. As regards recognition disputes, the Committee recalls that the fact that a strike is called for recognition of a union is a legitimate interest which may be defended by workers and their organizations [Digest, op. cit., 2006, para. 535], the Committee considers that the requirement that the employer employs at least 21 employees for a recognition dispute to qualify as a collective dispute, and therefore permit a strike, should also be removed as it is clearly in violation of the principles of freedom of association.
17. Resolution of collective disputes
18. 1538. The Committee notes that the ERL provides for collective employment disputes to be brought before the JET either with the consent of both parties, or by one party if all other available procedures have been applied unsuccessfully and a party to the dispute is acting unreasonably in the way in which that party is or is not complying with an available procedure. Available procedures include procedures in a collective agreement, a relevant contract of employment or a relevant handbook for employees, or an approved code of practice or a procedure which is established with the relevant trade or industry (article 22).
19. 1539. The JET may make (1) a binding award with the consent of both parties, or (2) a declaration the content of which will be integrated in individual contracts of employment until varied by agreement between the parties, by subsequent declaration, or until different terms and conditions of employment are settled through the machinery for the settlement of terms and conditions in the relevant trade, industry or undertaking (article 24). This declaration may relate to: (a) the opinion of the JET as to whether any party to the dispute is not observing any relevant terms and conditions; (b) the interpretation of any terms and conditions of a collective agreement that are relevant to the dispute; (c) the incorporation into the individual contracts of employment of any terms and conditions relating to (a) or (b); (d) in case of a recognition dispute, the opinion of the JET regarding this issue (article 23(2)). This would mean, according to the complainant, that the JET can make a declaration which incorporates terms and conditions specified therein into individual contracts of employment and is tantamount to binding arbitration. The Committee recalls that provisions which establish that, failing agreement between the parties, the point at issue in collective bargaining must be settled by the arbitration of the authority are not in conformity with the principle of voluntary negotiation contained in Article 4 of Convention No. 98 [Digest, op. cit., 2006, para. 993]. While noting that in the absence of the parties’ consent to the terms of a binding award, the JET can only issue a declaration, the Committee considers that the declaration’s de facto and de jure integration in individual contracts of employment is tantamount to compulsory binding arbitration contrary to the principle of voluntary negotiation. It requests the Government to ensure that such declarations are only possible in the case of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree to binding arbitration.
20. The codes of practice
21. 1540. Regarding the codes of practice, the Committee notes from a government web site that these are not legally enforceable but if a case reaches the final stage in the dispute resolution process, the JET could, in reaching a decision, take into account the extent to which the parties involved observed the appropriate codes: a party whose conduct contravenes the codes could be held to have acted outside the spirit of the legislation. In addition, the ERL specifically provides for the withdrawal of immunity if a code of practice provides for the holding of a ballot and action has not been taken in conformity with this ballot.
22. 1541. The Committee understands from the Government that consultations and modifications of the code of practice will be taking place and that it only has a draft copy. This notwithstanding, the Committee observes the allegations concerning an exemption for small businesses employing ten or fewer employees from the right to form trade unions and stresses that, if envisaged, this would clearly be in contravention of Article 2 of the Convention which states that all workers without distinction whatsoever have the right to establish or join an organization of their own choosing.
23. 1542. The Committee further notes that, according to the complainant’s allegations, the draft codes of practice raise several other difficulties in respect to Conventions Nos 87 and 98. article 20 of the ERL limits the immunity of a trade union from liability in tort if the trade union has not respected the ballot provided for in the code of practice or if a code of practice defines conduct that is or is not reasonable conduct when done in contemplation or furtherance of an employment dispute. Regarding balloting and industrial action, the Committee notes that code 3 provides that employers should be given notice before industrial action takes place. Such notice shall contain information in the union’s possession to help the employer make plans to enable him to advise his customers of the possibility of disruption so that they can make alternative arrangements or to take steps to ensure the health and safety of his employees, or the public, or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision. Such information could be the number, category or workplace of the employees concerned (not necessarily by individual name). The complainant gives an example of an English case where an injunction was granted against the decision to take industrial action because insufficient information was provided to the employer: the union had not identified at which site each lecturer on strike had his or her desk which was a breach of the requirement to specify workplaces. The Committee recalls that the obligation to give prior notice to the employer before calling a strike may be considered acceptable [Digest, op. cit., 2006, para. 552], but considers that the information asked for in the notice should be reasonable, or interpreted in a reasonable manner, and such injunctions should not be used in such a manner as to render legitimate trade union activity nearly impossible.
24. 1543. Furthermore, a reading of article 20(3) of the ERL and code 4 regarding secondary action would render such a strike unlawful and expose the union to liability in tort. Indeed, article 20(3) provides that immunity is lost if the conduct of a trade union does not conform to the definition in a code of practice of reasonable conduct when done in contemplation or furtherance of a dispute, and code 4 provides that industrial action would be considered unreasonable if taken in support of a third party, when employees are not directly involved, where a dispute is not with the same employer, where employees are not at the same place of work as those directly affected. The Committee recalls that a ban on strike action not linked to a collective dispute to which the employee or union is a party is contrary to the principles of freedom of association. Furthermore, a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action provided the initial strike they are supporting is itself lawful. More generally, the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement; workers and their organizations should be able to express in a broader context, if necessary, their dissatisfaction as regards economic and social matters affecting their members’ interests [Digest, op. cit., 2006, paras 538, 534 and 531]. The Committee requests the Government to take the necessary measures to ensure that sympathy strikes and social and economic protest action are protected under the law.
25. 1544. Regarding picketing and code 4, the Committee notes the fact that picketing is not protected from civil suits such as “obstruction of a path, road, entrance or exit to premises; interference (e.g. because of noise or crowds) in the rights of neighbouring properties (i.e. private nuisance) and trespassing on private property”. The Committee stresses that it considers legitimate a legal provision that prohibits pickets from disturbing public order and threatening workers who continue work [Digest, op. cit., 2006, para. 650]. The Committee does, however, consider that the action of pickets organized in accordance with the law should not be subject to interference by the public authorities [Digest, op. cit., 2006, para. 648].
26. 1545. The Committee requests the Government to pursue its review of the ERL and its accompanying codes in full and frank consultations with the employers’ and workers’ organizations concerned and expects that the necessary measures will be taken to ensure full respect for the principles set out above. The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
27. 1546. The Committee reminds the Government that it may avail itself of technical assistance from the Office in respect of the matters raised in this case.

The Committee’s recommendations

1. 1547. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:
2. (a) The Committee requests the Government to pursue its review of the ERL and its accompanying codes in full and frank consultations with the employers’ and workers’ organizations concerned and expects that the necessary measures will be taken to ensure full respect for the principles set out above, and in particular so as to:
3. – in the event of a cancellation of registration, ensure that a union remains registered until a final decision has been taken by a judicial authority;
4. – clarify the situations in which a union’s registration may be cancelled;
5. – ensure that the Royal Court may review the substance of cases on appeal;
6. – noting that the Minister has requested the Employment Forum to reconsider the matter of re-employment (including both reinstatement and re-engagement) ensure that workers are not sanctioned for legitimate trade union activity and ensure effective protection against penalizing workers for such activity;
7. – revise the definition of a collective agreement so as to ensure that the determination of the bargaining level is left to the determination of the parties and ensure that, where unions do not represent a “substantial proportion” of the workers, they may bargain at least on behalf of their own members;
8. – revise the definition of an employment dispute so as to remove the requirement of a pre-existing collective agreement and remove the requirement that the employer must employ at least 21 employees for a recognition dispute to qualify as a collective dispute;
9. – ensure that compulsory arbitration is only imposed in cases of essential services, public servants exercising authority in the name of the State or where both parties agree;
10. – ensure that secondary action and socio-economic protest action are not prohibited.
11. (b) The Committee draws the attention of the Committee of Experts on the Application of Conventions and Recommendations to the legislative aspects of this case.
12. (c) The Committee reminds the Government that it may avail itself of technical assistance from the Office in respect of the matters raised in the present case.

Z. Annex

• Extracts
• EMPLOYMENT RELATIONS (JERSEY) LAW 2007
• PART 1
• INTRODUCTION
  1. 1 Interpretation
• In this Law, unless the context otherwise requires –
• “collective agreement” means an agreement that has been settled by machinery of negotiation, mediation, conciliation or arbitration to which the parties are –
  • (a) an employer, or an organization of employers that is representative of a substantial proportion of the employers engaged in the trade or industry concerned; and
  • (b) employees who are representatives of a substantial proportion of the employees engaged in the trade or industry concerned;
• “employment dispute” means –
  • (a) a collective employment dispute; or
  • (b) an individual employment dispute as defined in Article 1(1) of the Employment (Jersey) Law 2003;
    5. 5 “Collective employment dispute”
    1. (1) In this Law, “collective employment dispute” means a dispute between one or more employers and one or more employees, where –
  • (a) the employee or employees concerned are represented by a trade union;
  • (b) a collective agreement exists between the employer or employers and the trade union; and
  • (c) the dispute relates wholly or mainly to one or more of the matters described in paragraph (2).
    2. (2) The matters to which this paragraph refers are:
  • (a) the terms of employment of one or more employees;
  • (b) the conditions in which one or more employees are required to work;
  • (c) the engagement or non-engagement of one or more persons as employees, or the termination of suspension of employment of one or more employees;
  • (d) the termination or suspension of the duties of employment of one or more employees;
  • (e) the allocation of work or the duties of employment as between employees or as between groups of employees;
  • (f) matters of discipline or grievance;
  • (g) the membership or non-membership of a trade union on the part of one or more employees;
  • (h) facilities for officials of trade unions; and
  • (i) an issue as to whether or not an approved code of practice is being observed by one or more employers or by one or more employees.
    3. (3) A dispute between a Committee of the States and any one or more employees shall, notwithstanding that the Committee is not the employer or those employees, be treated for the purposes of this Law as a dispute between an employer and those employees if the dispute relates –
  • (a) to matters that have been referred for consideration by a joint body on which, by virtue of any provision made by or under any enactment, that Committee is represented; or
  • (b) to matters that cannot be settled without that Committee exercising a power conferred on it by or under any enactment.
    4. (4) It is immaterial that a dispute relates to matters occurring outside Jersey if a person or persons whose actions in Jersey are said to be in contemplation or in furtherance of the dispute is or are likely to be affected in respect of any matter specified in paragraph (2) by the outcome of the dispute.
    5. (5) A dispute to which a trade union is a party shall be treated for the purposes of this Law as a dispute to which employees are parties.
    6. (6) A dispute to which an employers’ association is a party shall be treated for the purposes of this Law as a dispute to which employers are parties.
  • PART 2
• REGISTRATION OF TRADE UNIONS AND
• EMPLOYERS’ ASSOCIATIONS
  10. 10 Determination of application
  1. (1) The registrar shall refuse to grant an application for the registration of a trade union or employers’ association if, but only if –
     • (a) any of the purposes of the union or association is unlawful;
     • (b) the application is not made in accordance with this Law; or
     • (c) the name of the union or association is the same as the name by which any other union or association is registered, or so nearly resembles such a name as to be likely to mislead any person.
  2. (2) If the registrar refuses to grant an application for the registration of a trade union or employers’ association, the registrar shall give each applicant notice in writing of that decision and of the reasons for the decision.
  3. (3) Unless the registrar is required by paragraph (1) to refuse to grant an application for the registration of a trade union or employers’ association, he or she shall –
     • (a) grant the application;
     • (b) register the union or association in the appropriate register; and
     • (c) issue to the applicant or applicants a certificate of registration in the prescribed form.
  14. 14 Cancellation of registration on other grounds
  1. (1) The registrar shall cancel the registration of a trade union or employers’ association if any of its purposes are unlawful.
  2. (2) The registrar may cancel the registration of a trade union or employers’ association on any of the following grounds –
     • (a) if its registration has been obtained by fraud or mistake;
     • (b) if it has contravened Article 11(1);
     • (c) if, after the registrar has given it not less than 21 days notice in writing, to comply with a prescribed requirement, the union or association has failed to comply with that requirement; or
     • (d) if it has ceased to exist.
  3. (3) The registrar may under paragraph (2) cancel the registration of a trade union or employers’ association of his or her own motion or on the application of any person having sufficient locus standi.
  4. (4) However, before cancelling the registration of a trade union or employers’ association under paragraph (1), or under paragraph (2) on a ground specified in any of sub-paragraphs (a) (b) and (c) of that paragraph, the registrar shall –
     • (a) give the union or association notice in writing or his or her proposal to do so; and
     • (b) afford it a reasonable opportunity to be heard on the matter.
  5. (5) If (having complied with paragraph (4)) the registrar decides under paragraph (1) to cancel the registration of a trade union or employers’ association or decides under any of sub-paragraphs (a), (b) and (c) of paragraph (2) –
     • (a) to cancel the registration of a union or association; or
     • (b) to refuse to grant an application to cancel its registration.
  6. the registrar shall give the union or association notice in writing of that decision and of the reasons for the decision.
  6. (6) If the registrar decides under any of sub-paragraphs (a), (b) and (c) of paragraph (2) to grant or refuse to grant an application to cancel the registration of a trade union or employers’ association, the registrar shall also give the applicant notice in writing of that decision and of the reasons for the decision.
  7. (7) A cancellation of the registration of a trade union or employers’ association –
     • (a) under paragraph (1); or
     • (b) under any of sub-paragraphs (a), (b) and (c) of paragraph (2),
  8. shall not have effect until the expiry of the period of 21 days following the day on which the registrar gives the union or association notice in writing of the decision to cancel its registration.
  8. (8) If a notice of an appeal against the cancellation of the registration of the trade union or employers’ association is given within that period of 21 days, the cancellation shall not in any event have effect until the appeal is disposed of.
  15. 15 Appeals
  1. (1) The following persons and bodies shall have a right of appeal under this Law to the Royal Court –
     • (a) any applicant for the registration of a trade union or employers’ association, against a refusal by the registrar under Article 10(1) to grant the application;
     • (b) a union or association, against a refusal by the registrar under Article 12(1) to grant an application for the amendment of the register in respect of the union or association;
     • (c) a union or association, against a refusal by the registrar under Article 13(1) to grant an application under that paragraph to cancel the registration of the union or association;
     • (d) a union or association, against a decision by the registrar under either of paragraphs (1) and (2) of Article 14 to cancel its registration; and
     • (e) an applicant under Article 14(3) for the cancellation of the registration of a union or association, against a refusal by the registrar under Article 14(2) to grant the application.
  2. (2) An appeal under this Article shall be brought within 21 days after the person or body who has the right of appeal is given notice in writing by the registrar of the decision to which the appeal relates.
  3. (3) On hearing the appeal, the Royal Court may confirm or reverse the decision of the registrar and may make such order as it thinks fit as to the costs of the appeal.
• PART 3
• STATUS OF TRADE UNIONS AND
• EMPLOYERS’ ASSOCIATIONS
  19. 19 Immunities from liability in tort for industrial action
  1. (1) An act done by a person in contemplation or furtherance of an employment dispute is not actionable in tort by reason only –
     • (a) that it induces another person to break a contract or interferes or induces any other person to interfere with its performance;
     • (b) that it consists in the first person’s threatening that a contract will be broken (whether or not it is one to which he or she is a party);
     • (c) that it consists in the first person’s threatening that there will be interference with a contract (whether or not it is one to which he or she is a party); or
     • (d) that it consists in the first person’s threatening that the or she will induce another person to break a contract or to interfere with its performance.
  2. (2) An agreement or combination by 2 or more persons to do or procure the doing of any act in contemplation or furtherance of an employment dispute is not actionable in tort if the act is one that, if done without any such agreement or combination, would not be actionable in tort.
  3. (3) An agreement or combination by 2 or more persons to do or procure the doing of any act in contemplation or furtherance of an employment dispute is not a criminal offence if such an act committed by one person would not be a criminal offence.
  20. 20 Limitations on immunities from liabilities in tort
  1. (1) Article 19 does not prevent an act done –
     • (a) by a trade union or employers’ association; or
     • (b) by an official of a union or association,
  2. from being actionable in tort if at the time of the act the union or association is not registered.
  2. (2) Article 19 does not prevent an act done by a trade union from being actionable in tort if –
     • (a) an approved code of practice provides for the holding of a ballot of members of the union before it does such an act; and
     • (b) a ballot in respect of the doing of the act has not been held in accordance with an approved code of practice, or a majority of those balloted do not support the doing of the act.
  3. (3) Article 19 does not prevent an act described in paragraph (1) of that Article from being actionable in tort if –
     • (a) an approved code of practice defines conduct that is or is not reasonable conduct when done in contemplation or furtherance of an employment dispute; and
     • (b) one of the facts relied on for the purpose of establishing liability is that the act of the trade union constitutes conduct that, as so defined, is not reasonable conduct.
  4. PART 4
• RESOLUTION OF COLLECTIVE EMPLOYMENT DISPUTES
  22. 22 Jurisdiction in respect of collective employment disputes
  1. (1) Proceedings may be brought before the Jersey Employment Tribunal in respect of a collective employment dispute –
     • (a) with the consent of each party to the dispute; or
     • (b) at the request of any party to the dispute, in the circumstances described in paragraph (2).
  2. (2) The circumstances to which this paragraph refers are –
     • (a) that the body or person making the request considers that as far as is practicable all other available procedures have been applied unsuccessfully to seek to resolve the dispute; and
     • (b) that a party to the dispute is acting unreasonable in the way in which that party is or is not complying with an available procedure.
  3. (3) For the purposes of paragraph (2), a procedure is an available procedure if –
     • (a) it is a procedure for the resolution of the dispute that is contained in a collective agreement, a relevant contract of employment or a relevant handbook for employees;
     • (b) it is a procedure fort the resolution of the dispute in accordance with an approved code of practice; or
     • (c) it is a procedure for the resolution of the dispute that is otherwise established within the trade or industry concerned by this Law or any other Law.
  4. (4) In deciding whether or not a party to the dispute is acting unreasonably in the way in which that party is or is not complying with an available procedure in a relevant handbook for employees, regard shall be had to whether or not the handbook has been agreed by or on behalf of the parties tot he dispute, but this paragraph does not limit the generality of paragraph (2)(b).
  23. 23 Orders and declarations in collective employment disputes
  1. (1) On hearing proceedings in respect of a collective employment dispute that are brought before the Tribunal, it may make –
     • (a) with the consent of each party to the dispute, an order that is binding on the parties; or
     • (b) a declaration.
  2. (2) A declaration under paragraph (1) may relate to any of the following things –
     • (a) the opinion of the Tribunal as to whether any party to the dispute is not observing any relevant terms and conditions;
     • (b) the interpretation of any terms and conditions of a collective agreement that are relevant to the dispute;
     • (c) the incorporation into the individual contracts of employment of the employees to whom the dispute relates of any terms and conditions to which either of sub-paragraphs (a) and (b) refers;
  3. (3) In paragraph (2)(a), “any relevant terms and conditions” means –
     • (a) any terms and conditions of employment that are, in the opinion of the Tribunal, applicable to the case; or
     • (b) any terms and conditions of employment that are, in the opinion of the Tribunal, not less favourable to the employee or employees concerned than the terms and conditions to which sub-paragraph (a) refers.
  26. 26 Failure to comply with an approved code of practice
  1. (1) A failure on the part of any person, trade union or employers’ association to observe any provision of an approved code of practice issued under this Law does not of itself render that person, union or association, or any member of the union or association, liable to any proceedings.
  2. (2) However, paragraph (1) is subject to Article 20(2).
  3. (3) In any proceedings before a court or before the Tribunal, an approved code of practice is admissible in evidence.
  4. (4) If it appears to the court or the Tribunal that any provision in an approved code of practice is relevant to any question arising in the proceedings, the court or the Jersey Employment Tribunal shall take that provision into account in determining the question.
• EMPLOYMENT RELATIONS (AMENDMENT No. 2) (JERSEY) LAW
• A LAW to amend further the Employment Relations (Jersey) Law, approved by the States of Jersey, awaiting Privy Council sanction.
  3. 3 Article 5 amended
• Article 5 of the principal Law shall be amended by inserting after paragraph (2) the following paragraphs –
  2. “(2A) In this Law, ‘collective employment dispute’ also means a dispute between one or more employers and one or more employees, where –
     • (a) the employee or employees concerned are represented by a trade union;
     • (b) the trade union is one that fulfils criteria for its recognition that are set out in an approved code of practice; and
     • (c) the dispute is a recognition dispute.
  2. (2B) However, a recognition dispute between –
     • (a) an employer who employs on average fewer than 21 employees in the period of 13 weeks immediately preceding the day on which the dispute arises; and
     • (b) the trade union,
  3. is not a collective employment dispute.”.
  4. 4 Article 23 amended
  1. (1) Article 23(2) of the principal Law shall be amended –
     • (a) in sub-paragraph (c), by substituting for the full stop the word “; or “;
     • (b) by adding after sub-paragraph (c) the following sub-paragraph –
     • “(d) in the case of a recognition dispute, the opinion of the Tribunal as to whether the trade union is recognized as being entitled to conduct, on behalf of any employee or employees, collective bargaining with the employer or employers in respect of any matter relating to pay, hours of work or holidays.”
  2. (2) After Article 23(2) of the principal Law there shall be inserted the following paragraph –
  2. “(2A) A declaration to which paragraph (2)(d) refers may specify a method by which collective bargaining shall be carried out, and a method so specified shall have effect as if it were contained in a legally enforceable contract made between the employer or employers and the trade union.”
  5. 5 New Article 24A inserted
• After Article 24 of the principal Law (but before Part 5 of the Law) there shall be inserted the following Article –
  24. “24A Enforcement of declaration in recognition dispute
• A declaration to which Article 23(2)(d) refers –
  • (a) shall have effect as if it were a legally enforceable contract made between the parties to the collective employment dispute to which the declaration relates; and
  • (b) shall be enforceable in the Royal Court by but only by an order for specific performance.”