The Employment Relations (Jersey) Law 2007

THE EMPLOYMENT RELATIONS (JERSEY) LAW 2007 - Guidance Note 10

This statement is intended to explain to employers and employees the principal requirements of the Law and associated Codes of Practice. It is not intended to cover all the requirements of the Law, nor does it represent a statement of the Law. It constitutes a guide only and detailed legal advice should be taken in relation to each individual situation.

The main aims of the Law are to:

• Provide a system of legal identification and registration of trade unions and employer associations and to give such bodies legal status.
• Create a legal dispute resolution process which supports and develops good industrial relations, with the aim of reducing the likelihood of disputes and enabling early resolution of disputes where they occur, using the Employment Tribunal where necessary.
• Support codes of practice to describe good and reasonable employment relations practice. Three codes have been published

The fundamental principle is that people can withdraw their labour and have a common law right to association, so long as the association is for a legal purpose. The Law builds upon and supersedes the Industrial Disputes (Jersey) Law 1956.

1. Definitions

1.1 Trade Union. An organisation is a trade union if it consists wholly or mainly of employees and its principal purposes include the regulation of relations between employees and employers or employers' associations.

An organisation is also a trade union if it consists wholly or mainly of constituent or affiliated organisations, or representatives of such organisations, whose purpose is the same as that described above. 

A trade union may be permanent or temporary.

1.2 Employers' association. An organisation is an employers' association if it consists wholly or mainly of employers or individual owners of undertakings and its principal purposes include the regulation of relations between employers and employees or trade unions.

An organisation is also an employers' association if it consists wholly or mainly of constituent or affiliated organisations, or representatives of such organisations, whose purpose is the same as that described above. 

An employers' association may be permanent or temporary.

1.3 A collective agreement means an agreement that has been settled by negotiation, mediation, conciliation or arbitration to which the parties are an employer, or an organisation of employers, and employees who are representative of a substantial proportion of the employers and employees engaged in the trade or industry concerned.

1.4 Collective employment dispute. A collective employment dispute means a dispute between one or more employers and one or more employees, where;

• the employees are represented by a trade union
• a collective agreement exists between the employer(s) and the trade union, and
• the dispute relates wholly or mainly to one or more of the following:
• the terms of employment of one or more employees
• the conditions in which one or more employees are required to work
• the engagement or non-engagement of one or more persons as employees, or the termination or suspension of one or more employees
• the termination or suspension of duties of one or more employees
• the allocation of work or duties between employees or groups of employees
• matters of discipline or grievance
• membership or non-membership of a trade union on the part of one or more employees
• facilities for officials of trade unions, and
• an issue as to whether or not an approved code of practice is being observed by one or more employers or employees.

2. Registration

2.1 A trade union or employers' association (or an officer or member of such) shall not do any act in furtherance of any purpose for which it is formed unless it is registered in accordance with this Law.

2.2 The registrar is appointed by the Social Security Minister. Application for registration may be made by;

• at least 7 members of the trade union or employers' association, or
• an officer of the union or association.

3. Status of Trade Unions and Employers' Associations.

Once registered, trade unions or employers' associations are granted immunities from liability in tort (a tort is a civil wrong, e.g. intimidation, interference with business, inducing a breach of contract) and from criminal liability insofar as it relates to restraint of trade, in respect of its actions or those of its members. However, these immunities are limited in that they do not apply to the union or association (or its officials) if:

• the union or association is not registered under the Law, or
• a trade union takes an action without the agreement of the majority of members as determined by a ballot and as provided for in a code of practice, or
• if action is taken or conduct is such that it falls outside of what is defined as reasonable by a code of practice.

4. Resolution of Collective Employment Disputes

4.1 The Employment Tribunal can hear proceedings in respect of a collective employment dispute:

• with the consent of each party to the dispute, or
• at the request of any party to the dispute when
  • that party considers that as far as is practicable all other available procedures have been applied unsuccessfully to seek resolution, and
  • that a party to the dispute is acting unreasonably in the way that it is, or is not, complying with an available procedure (see note below).

Note: An available procedure is a procedure for the resolution of a dispute that:

• is contained in a collective agreement, a relevant contract of employment or a relevant handbook for employees
• is in accordance with an approved code of practice, or
• is otherwise established within the trade or industry

4.2 The Employment Tribunal, having heard proceedings may make -

a)      an order that is binding on the parties with their consent, or;

b)      a declaration

4.3 A declaration may relate to any of the following:

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 is relevant to the dispute;

c)   the incorporation of any terms and conditions (to which either a) or b) above refers), into the individual contracts of employment of the employees.

Where the Tribunal declares that terms and conditions are to be incorporated into the individual contracts of employment, they remain as contractual terms until such time as they are varied by subsequent agreement between the parties or by a subsequent declaration by the Tribunal or until such time as different terms and conditions of employment are settled by negotiation, mediation, conciliation or arbitration.

5. Codes of Practice

The Social Security Minister may approve codes of practice, having first published a notice in the Jersey Gazette specifying where the code can be inspected and allowing not less than 28 days for anyone to make written representations.

A failure to observe an approved code of practice does not in itself make a person liable to any proceedings, although the Tribunal will take account of the relevant provisions of the codes in its deliberations. However, where an approved code of practice defines conduct as unreasonable in an employment dispute, a trade union will not be protected from liability in tort for such conduct.

Three codes of practice have been published, as described below.

Code 1 - Recognition of Trade Unions

This deals with recognition of trade unions for collective bargaining purposes; the circumstances in which it would be reasonable for an employer to recognise a union, including percentage of employees in membership of a union; the process of seeking recognition; access arrangements to allow union communication with the workforce; provision of notice boards for union use; retention of ballot papers; reasonable circumstances that could lead to de-recognition; re-applying for recognition or de-recognition; changing a recognition agreement; disputes about recognition or de-recognition; inter-union issues

Code 2 - Balloting and Conduct in Employment Disputes 

This sets out reasonable procedures for resolving disputes including: conciliation or mediation by JACS or another source of independent assistance; voluntary arbitration; reference to the Employment Tribunal and the circumstances in which unilateral reference may be possible; the need for balloting for industrial action before such action is considered to be reasonable; notice of any action subsequent to the ballot, including reasonable information from the union; secondary action; picketing; civil wrongs not protected by immunities.                                    

Code 3 - Resolving Collective Disputes

This defines a collective dispute; deals with the role of the Tribunal; sets out the principles of a dispute resolution procedure; notice of any action subsequent to the ballot, including reasonable information from the union. 

Aug 2019