Draft Employment Relations (Amendment No. 2) (Jersey) Law 200-

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A decision made (12/05/2006) regarding Draft Employment Relations (Amendment No. 2) (Jersey) Law 200-.

Subject:	Draft Employment Relations (Amendment No. 2) (Jersey) Law 200-
Decision Reference:	MD-S-2006-0041		Exempt clause(s):	n/a
Type of Report: (oral or written)	Written		Person Giving Report (if oral):	n/a
Telephone or e-mail Meeting?	n/a		Report File ref:	n/a
Written report – Title	Draft Employment Relations (Amendment No. 2) (Jersey) Law 200-
Written report – Author (name and job title)	Kate Morel, Policy Principal
Decision(s): To approve the lodging of a second draft amendment to the draft Employment Relations (Jersey) Law 200-.
Reason(s) for decision: The proposed amendment is intended to ensure that the four proposed codes of practice are on an equal footing in terms of the Tribunal’s jurisdiction to make a declaration upon them. The effect of the amendment is to;  Define the scope of a “recognition dispute”. Under the draft Employment Relations Law, a dispute is only a “collective employment dispute” if a collective agreement exists between the employer and union. This amendment widens that definition to include a “recognition dispute” as to whether an approved code of practice for the recognition of trade unions is being observed. § Give the Employment Tribunal the jurisdiction to make a declaration on such disputes This will enable either party to refer a recognition dispute to the Employment Tribunal which can then make a declaration (enforceable in the Royal Court) that the trade union is recognized for conducting collective bargaining with the employer in respect of pay, hours of work and holidays, and can also specify a method of conducting collective bargaining. Limit the extent of these new provisions to employers will 21 or more employees.
Action required: Submit the draft amendment to the Greffe for lodging before 16th May, with a prospective date for debate of 4th July.
Signature: Paul Routier (Minister)		Date of Decision: 12 May 2006

Draft Employment Relations (Amendment No. 2) (Jersey) Law 200-

Employment Relations (Amendment No. 2) (Jersey) Law 200-

Report

Background

The draft Employment Relations Law is based on a dispute resolution approach. The objective is to encourage discussion and the resolution of disputes as quickly as possible and to provide a clear process by which disputes are handled in order to reduce conflict and support good industrial relations in the Island.

Experience of our previous Industrial Disputes (Jersey) Law 1956 suggested that the process of resolution is likely to be iterative, encouraging continuing negotiation where procedures have not been fully exhausted, and these elements have been incorporated into the draft Law.

It is generally accepted that collective dispute outcomes are more positive where voluntary dispute resolution processes have been used, so the initial stages of resolution are voluntary. However, where a collective agreement is in place, a “collective employment dispute” may be referred to the Tribunal for a declaration.

To support and supplement the minimalist legal approach provided in the draft Law, independent conciliation is available through the Jersey Advisory and Conciliation Service and good practice procedures are provided in codes of practice to describe what constitutes “reasonable” and “unreasonable” behaviour. The Tribunal may take into account the extent to which the parties had observed the appropriate code of practice when reaching its decision.

The intention was to provide a simple legal framework, which avoids the potential for expensive litigation, is appropriate to a small community and incorporates the existing culture of negotiation and conciliation, established through the Industrial Disputes Law, and which is also promoted elsewhere in the world.

Proposed Amendment

Earlier this year, Deputy Southern lodged an amendment (P.5/2006) to the draft Law which would provide that an employment dispute may be a collective dispute, even if there is no collective agreement in place, as long as the trade union by whom the employee or employees are represented fulfils criteria for the recognition of a union that are set out in a code of practice.

The Social Security Minister’s view was that it would be appropriate to allow an appeal mechanism where a dispute arose over recognition. However, there were concerns about the scope of the amendment, the impact on small businesses and the method of enforcement.

Following discussions, the Minister has decided to put forward an amendment which provides that where a collective agreement does not already exist between the employer and employees, a dispute is not a “collective dispute” (and therefore may not be referred to the Tribunal) unless it relates wholly to an issue as to whether a code of practice about union recognition is being observed.

Although the original intention was for the Tribunal to have declaratory rather than coercive powers in the first instance, there is concern that an employer could continue to refuse to recognise a union for collective bargaining purposes, despite the procedures in the recognition code of practice having been met by the union.

The Deputy’s accompanying report states that his amendment addresses the right of a trade union to be recognised by an employer, subject to the union’s compliance with the code of practice. However, his amendment does not make provision for the Tribunal to adjudicate or make a declaration on the matter of recognition.

The Minister wishes to ensure that the codes of practice are on an equal footing in terms of the Tribunal’s jurisdiction to make a declaration upon them. This amendment provides that, following the referral of a dispute about non-observance of the recognition code of practice, the Tribunal may make a declaration on the matter.

Without this additional provision, it might technically be possible for the Tribunal to hear a collective dispute involving a union that is not recognised, however, it is questionable whether any finding or declaration on the question of recognition would relate to "terms and conditions" falling within the meaning of Article 23 of the draft Employment Relations Law. It would therefore be unlikely that the Tribunal would have the jurisdiction to make a declaration that would meaningfully affect recognition rights.

The aim of this amendment is to provide a simple mechanism by which Jersey’s Employment Tribunal may perform a similar role to the UK’s Central Arbitration Committee. The CAC may issue a declaration that a union is recognised or not, depending on whether certain criteria, such as balloting requirements, are met. When statutory recognition is declared by the CAC, it asks the parties to agree a method for conducting collective bargaining, but only on pay, hours and holidays. If a method cannot be agreed, the CAC must specify a method, taking into account a "model method", which is then legally enforceable by the courts.

A standalone mechanism such as the UK’S CAC is not considered to be necessary in Jersey as it is likely to create unnecessary bureaucracy and cost given that these provisions would only apply to employers with 21 or more employees. It is anticipated that few will use the statutory recognition procedure as the emphasis will be on achieving voluntary recognition wherever possible.

This amendment therefore provides that the Tribunal can make a declaration on recognition and collective bargaining, such as specifying a legally binding method of collective bargaining on pay, hours and holidays which is enforceable by the courts in the event of non-adherence.

Conclusion

The proposed amendment is intended to ensure that the four proposed codes of practice are equal in terms of the Tribunal’s jurisdiction to make a declaration upon them and to provide clarity on the procedure for dealing with recognition disputes for employers, employees and unions.

The effect of the amendment is to;

 Define the scope of a “recognition dispute”. Under the draft Employment Relations Law, a dispute is only a “collective employment dispute” if a collective agreement exists between the employer and union. This amendment widens that definition to include a “recognition dispute” as to whether an approved code of practice for the recognition of trade unions is being observed.

 Give the Employment Tribunal the jurisdiction to make a declaration on such disputes. This will enable either party to refer a recognition dispute to the Employment Tribunal which can then make a declaration (enforceable in the Royal Court) that the trade union is recognized for conducting collective bargaining with the employer in respect of pay, hours of work and holidays, and can also specify a method of conducting collective bargaining.

 Limit the extent of these new provisions to employers will 21 or more employees.

However, the code of practice will still be the key element in the recognition procedure, dealing with issues relating to appropriate bargaining units, balloting of members and setting out what is “reasonable” for each of the parties in the event of a union seeking recognition.

Financial and Manpower statement

There are no additional financial or manpower implications arising from this amendment.

European Convention on Human Rights

In the view of the Minister for Social Security the provisions of the Draft Employment Relations (Amendment No. 2) (Jersey) Law 200- are compatible with the Convention Rights.