Response to the Hendy/Fredman Opinion as appended to the Proposition Employment Legislation: Petition (P.214/2005)
1. The Proposition asks the Employment and Social Security Committee to review the Employment Relations (Jersey) Law 2005, the Employment (Jersey) Law 2003 and the draft Codes of Practice in order “to identify if there are any provisions which deny employees the fundamental rights to recognition and representation, or that may breach International Labour Organisation Conventions 87 and 98”, and to take the necessary steps to remedy the situation if any such provisions are identified.
2. The report which accompanies the Proposition is very brief. It begins by saying that the detailed objections and reservations expressed by Trade Union representatives are laid out in the accompanying submission by John Hendy QC. The document which is appended is a joint Opinion by Mr. Hendy and Professor Sandra Fredman.
3. The Proposition does not identify in terms the source of the “fundamental rights to recognition and representation”. The report sets out an extract from the Employment and Social Security Committees consultation document of July 2001, which set out a Charter of Basic Trade Union Rights in Jersey and goes on to say that it is the belief of the employees’ representatives in Jersey that the Employment Laws and Codes of Practice as currently drafted breach this Charter. The Charter is a policy document, not a Law, nor an International Convention. Its interpretation and implementation is thus obviously a matter of interpretation.
4. Employers have rights as well, and it is not only the International Labour Organisation Conventions which are of relevance in this matter. A point which has not been addressed in the Proposition, the report, or the Hendy/Fredman Opinion is that the legislation and the Codes affect employers as well as employees and trades unions. Employers have certain rights under the European Convention on Human Rights, and in enacting employment legislation it is important to bear those rights in mind and to ensure that they are not breached.
5. The report which accompanies the Proposition referred to Mr. Hendy as one of the UK’s foremost Employment Law specialists. Mr. Hendy is the joint secretary of the United Campaign for the Repeal of the Anti-Trade Laws, and Professor Fredman is an academic tenant of the same chambers as Mr. Hendy. It is fair to say that they are both committed supporters of trades unions’ views and interests
6. The Hendy/Fredman opinion refers without particular distinction to the ILO (International Labour Organisation). It may be helpful to set out a brief summary of the ILO structure. The opinion also refers to extracts from the Digest without explaining their status or significance. Similarly, it may be useful to include a note on the Digests.
The ILO organs
7. There are three bodies within the ILO which have competence to hear complaints alleging infringements of trade union rights:
(i) the Committee on Freedom of Association, set up by the Governing Body of the ILO;
(ii) the Governing Body itself;
(iii) the Fact-finding and Conciliation Commission on Freedom of Association.
8. The Committee of Freedom of Association (“the Committee”) is responsible for considering whether complaints are worthy of examination by the Governing Body of the ILO. When it decides that a complaint is well founded, the Committee “recommends” that Governing Body endorse its report and conclusions and indicates that the Government concerned should be invited to state what action it has taken on the recommendation made. Where the Governing Body acts on the Committee’s recommendation the ILO’s Committee of Experts then investigates whether the Government has taken appropriate action. A variety of processes may be instigated in the case of non-compliance including, occasionally, referral to the Fact finding and Conciliation Committee.
9. Breach of an ILO Convention to which a state is a party entitles the Governing Body to invite the Government of the offending state “to make such statement on the subject as it may think fit”: see Article 24 of the ILO Constitution.
10. The Committee’s role is not confined strictly to consideration of breaches of the ILO Conventions relating to freedom of association. It extends also to cases affecting ILO matters which concern “freedom of association” in a wider sense. The ILO website records that
“By membership of the International Labour Organisation, each member is bound to respect a certain number of principles, including the principles of freedom of association”.
11. The Committee’s first report states:
“The function of the ILO in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice”.
The Digests
12. In 1985 the Committee published a Digest of its decisions. A 1996 Digest updated the 1985 Digest. The Digests do not consist of case summaries but rather of rules or principles of general application which have been abstracted from the cases. Despite the generalised nature of these statements the introduction to the 1985 Digest specifically stresses the importance of context in stating
“It is appropriate to note that the decisions of the Committee have been taken in the light of the special circumstances prevailing in each case and accordingly they should be considered within the context in which they appear. However, when examining a case, the Committee usually makes reference to decisions which it has taken or mentioned previously when it has been faced with circumstances similar to those in the case under examination, so that a certain continuity as regards the criteria employed by it in reaching its conclusions can be maintained”.
13. Thus whilst statements in the Digest are authoritative as to
(a) the effect of the particular Convention under consideration and
(b) the general principles concerning freedom of association which it regards as “customary rules above the Conventions”
it may be important to examine the context of the case from which the principle derives.
Registration
14. The Hendy/Fredman Opinion states at paragraphs 5 to 19 that “[r]egistration which depends on meeting statutory conditions constitutes a requirement for previous authorisation, infringing the [ILO] Convention”. The implication that the existence of statutory conditions for registration necessarily entails infringement is ill founded. Paragraph 259 of the 1996 Digest states –
“259. If the conditions for the granting of registration are tantamount to obtaining previous authorisation from the public authorities for the establishment or functioning of a trade union, this would undeniably constitute an infringement of Convention no. 87. This, however, would not seem to be the case when the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention” (emphasis added).
Paragraph 260 then goes on to note that although a registration procedure “very often consists in a mere formality” there are some countries
“In which the law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which a previous authorisation is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude…”.
15. Thus, the existence of statutory conditions does not in itself constitute a “requirement for previous authorisation” infringing the Convention. The nature of the conditions has to be examined. Are they a formality or do they impair the guarantees laid down by the Convention? The registration conditions in the Employment Relations Law are essentially formal. They are not such as to impair any Convention guarantee.
16. Case 1575 (cited at para 16 of the Hendy/Fredman Opinion) is not inconsistent with these views. Central complaints in that case were that Zambian legislation gave the Minister and Labour Commissioner “unwarranted discretionary power” over the basic right to organise
(i) by giving discretion to the Minister to lay down statutory conditions for registration (which he had used to lay down minimum membership requirements) and
(ii) by empowering the Commissioner to refuse registration if he considered the union incapable of implementing its principal objectives and to cancel registration if the Commissioner considered that the union had ceased to pursue those objectives (see para. 847).
17. In upholding the complaint the Committee concerned itself with the content and operation of the registration scheme and not with the mere existence of registration conditions. It reasoned that “some of the requirements are indeed extremely difficult to fulfil, such as the minimum membership threshold of 100 members” (para 901). The Committee was not saying that every statutory condition would amount to an infringement.
18. At paragraph 11 of the Hendy/Fredman Opinion it is suggested that the registration powers “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 or objectivity.” This is difficult to understand. The Registrar has not been given a significant discretion. A requirement of independence or objectivity does not need to be made express in the statute in order to comply with ILO principles. No explanation has been given, and it is not readily apparent, what “procedural safeguards” are thought to be lacking.
The strike immunity point
19. An additional strand of objection to the Employment Relations Law is indicated in the second half of paragraph 11 of the Hendy/Fredman Opinion and in paras 12 to 14. It is there suggested that by basing the lawfulness of strike action on immunities (rather than conferring a positive right to strike) the Employment Relations Law gives rise to a large number of “uncertainties”. It is said this may cause difficulty in determining whether the purposes of the union are lawful and reference is made to English law.
20. This calls forth the following observations. First, English law is based on providing a system of immunities rather than a positive right to strike. (These immunities are in certain respects similar to those in the Employment Relations Law as indicated below). Secondly, it is not obvious why a scheme based on immunities should be intrinsically less certain than a scheme based on a right to strike which must inevitably become qualified by definitions and limitations. Either approach will give rise to issues of interpretation. The differences in juridical structure probably represent little more than a difference in legal tradition between the common law and continental (codified) traditions. Thirdly, no examples of UK case law have been cited in the Hendy/Fredman Opinion and we have traced none where it has been alleged that the purposes of an independent trade union with a standard constitution/rule book might be illegal because of complications or ambiguities surrounding the extent of legal protection of strike action. It would be considered unusual for a trade union’s constitution or rule book to specify the precise circumstances in which strike action or other industrial action would be taken.
21. It is certainly true that in the UK there have been many circumstances in which strike action for particular purposes has been held to fall outside the scope of the immunities for the time being in force[1]. The Gate Gourmet dispute referred to at paragraph 13 of the Hendy/Fredman Opinion involved unballotted strike action, the consequent dismissals of strikers and subsequent picketing. The picketing became the subject of a reported case on specific points as to picketing: Gate Gourmet London Limited v TGWU [ IRLR 881). There is no suggestion that the dispute raised any previously unforeseen issue about the scope of the immunities. In University College London Hospitals NHS Trust v Unison [ ICR 204, to which the Hendy/Fredman Opinion also refers, industrial action about
(i) terms and conditions of individuals who had never been employed by the strikers’ employer and
(ii) the prospective employment of current staff by an unidentified future employer
was held to be unprotected by the immunities. Similarly, in Universe Tankships Inc. of Monrovia v ITF [ ICR 262 industrial action to secure payment by employers to the union’s welfare fund was not found to be protected. It has also been acknowledged in Universe Tankships and other cases that legal wrongs may be committed by the organisers of industrial action which are not within the categories of tort to which the immunities apply. These points do not appear to have any bearing on whether registration arrangements comply with ILO principles.
22. In paragraph 17 of the Hendy/Fredman Opinion, it is stated that the “contravention” is not cured by the right of appeal. As will be clear from the foregoing, the Minister has been advised that there is no contravention, and he does not believe that there is. Be that as it may, and for the sake of completeness, it is right to refer members to the appeal provisions. They are to be found in Article 15 of the Employment Relations Law, where it is stated that the persons specified in paragraph (1) have “a right of appeal”. Paragraph (2) fixes the timescale for appealing, and paragraph (3) says that 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 cost of the appeal.” This differs from the form in which a statutory right of appeal is given by some Jersey statutes, where it is said that a party may appeal on the ground that the decision is unreasonable in the circumstances of the case. Where the ground is specified in that way, the Court is restricted in the extent to which it can set aside the decision which is the subject of the appeal, but where a statute simply provides that a party may appeal, and does not stipulate any specific ground, the Court’s role is much wider, see Mesch v Housing Committee 1990 JLR 269. The statement in paragraph 10 of the Hendy/Fredman Opinion that there is a possibility that the Royal Court may consider that it may only review rather than re-hear the case, is thus not supported by local case law.
Similarity and divergence of UK law and Jersey law on immunities
23. There is a fundamental similarity between the Employment Relations Law and the English statutory scheme now contained in the Trade Union and Labour Relations (Consolidation) Act 1992 as amended (“the UK 1992 Act”). Article 19 of the Employment Relations Law starts by establishing a general immunity for acts done by a person “in contemplation or furtherance of an employment dispute” in respect of certain economic torts, including importantly inducing breach of contract. Section 219 of the UK 1992 Act contains very similarly worded immunities for acts done “in contemplation or furtherance of a trade[2] dispute”. Section 219 includes a special protection for picketing which does not appear in the Jersey law.
24. Article 20 of the Jersey law then “withdraws” the immunity where
(i) the union is not registered
(ii) a ballot has not been held in accordance with an approved code of practice
(iii) the Trade Union has been guilty of conduct which is not reasonable conduct under the terms of an approved code of practice.
It is at this point that divergence between UK and Jersey Jaw becomes greater.
25. Under the UK 1992 Act immunity is “withdrawn”
(a) in a series of specific cases (broadly where the tortious act is to enforce union membership or is a response to dismissals for taking “unofficial” industrial action or amounts to a secondary action which is not lawful picketing, or is done by way of pressure to impose union recognition requirements[3]),
(b) where the act is done by a Trade Union[4] if the detailed balloting requirements (under sections 226 to 234) have not been satisfied.
26. UK statutory law does not seek to distinguish between “reasonable” and “unreasonable” conduct in the context of a trade dispute, although
(a) there are Codes of Practice (most significantly in the area of picketing) which can be taken into account for various statutory purposes;
(b) some features of the Jersey Code of Practice (for example on pickets and secondary action) reflect elements of the UK statutory provisions about immunities, but the English statutory provisions are much more elaborate;
(c) the reasonableness of particular behaviour can occasionally influence the construction of the highly technical provisions about immunities and balloting.
Jurisdiction of the Jersey Employment Tribunal
27. At paragraph 23 of the Hendy/Fredman Opinion it is concluded that the power of the Jersey Employment Tribunal (“JET”) to issue a binding declaration as to the meaning of terms and conditions of employment amounts or is “tantamount” to binding arbitration and therefore is (at least) at risk of infringing Article 4 of Convention no. 98.
28. Article 4 of ILO Convention no. 98 provides
“Measures appropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers organisations and workers organisations, with a view to regulation of terms and conditions of employment by means of collective agreements”.
29. Case 1450 (against Peru) concerned a system of compulsory arbitration by an administrative authority (the Ministry of Labour) which extended to the fixing of conditions which had not been agreed by the collective parties. This was found to be an infringement of the Convention. The Committee stressed that under Article 4 “the determination of the bargaining level is essentially a matter to be left to the discretion of the parties and ... the level of negotiation should not be imposed by law”[5]. Similarly, in cases 1478 and 1484 (also against Peru) a statutory prohibition on striking after a dispute had been submitted by one party to the administrative labour authority was held contrary to the Convention. It was found objectionable that “one of the parties may undermine collective bargaining by unilaterally entrusting the settlement of the dispute to the labour authority, thereby suspending the right to strike” (paragraph 547).
30. The 1996 Digest states at para. 518
“provisions which establish that, failing agreement between the parties, the points at issue must be settled by arbitration by the labour authorities do not conform to the principle of voluntary negotiation contained in Article 4 of Convention no. 98 …
A provision which permits either party unilaterally to request the intervention of the labour authority to resolve a dispute may effectively undermine the right of workers to call a strike and does not promote voluntarily collective bargaining …
The Committee considers that a system of compulsorily arbitration through the labour authorities, if a dispute is not settled by other means, can result in a considerable restriction of the right of workers organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association” (emphasis added).
31. The following points are significant. First, as confirmed by the quotations from the Digest, the ILO’s concern has hitherto been with compulsory arbitration by administrative authorities, not judicial authorities such as the Jersey Employment Tribunal (“JET”).
32. Secondly, it is significant that 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 in collective bargaining. It is the fixing of terms which have not been agreed in collective bargaining, (rather than the interpretation of terms which had been agreed or the making of other legal rulings) which infringes the case law and guidance on Article 4 cited above. The Hendy/Fredman Opinion suggests that the JET’s ability to make a declaration “which incorporates the JET’s interpretation of the disputed terms and conditions into the individual contracts of employment” is “still tantamount to binding arbitration”. This seems untenable. Although the power to deem collectively agreed terms to be terms of the individual employment contracts goes further than a normal judicial role, since the JET would not be altering the content of the collectively bargained arrangements it would not be interfering with the substance of the collective bargaining process. It is also significant that a term incorporated by virtue of a declaration can be varied by the parties: see Article 24(1)(a) and (b) of the Employment Relations Law. This is a further feature which points against any infringement.
Right to strike (Paras. 24 to 28 of the Hendy/Fredman Opinion
33. Although the ILO Convention does not provide a “right to strike” as such, the
1996 Digest, for example, records
“The Committee has always recognised the right to strike by workers and their organisations as a legitimate means of defending their economic and social interests”.
34. The International Covenant on Economic, Social and Cultural Rights does provide for a right “to strike” but this is subject to the express proviso “that it is exercised in conformity with the laws of the particular country” (see Article 8(1)(d)).
35. It is also notable that the protection of freedom of assembly and association under the European Convention on Human Rights does not embody a right to strike as such. Under Article 11 a right to strike is said to be “one of the most important ... means” of an effective enjoyment of Trade Union rights “but there are others”. It is not an indispensable right: see Schmidt & Dahlstrom v Sweden [1989-1991 HER 632. In Unison v UK 53574/99 10th January 2002 the Court stated
“The Court recalls that while Article 11(1) includes trade union freedom as a specific aspect of freedom of association this provision does not secure any particular treatment of trade union members by the state. There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most Article 11(1) may be regarded as safeguarding the freedom of trade unions to protect the occupational interests of their members. While the ability to strike represents one of the most important means by which trade unions could fulfil this function, there are others. Furthermore contracting states are left with a choice of means how the freedom of trade unions ought to be safeguarded . . .”
36. The ILO position appears to be that workers should not be dismissed or refused re-employment on the grounds of having participated in what case 1540 (National Union of Seamen and Great Britain) describes as a “legitimate” strike.
37. It has proved impossible to trace the basis for the assertion in paragraph 28 of the Hendy/Fredman Opinion that the ILO Convention requires that workers dismissed for taking part in a lawful strike should be entitled to reinstatement if the dismissal is unfair.
38. There are some general observations which should be made before dealing with some specific points which have been raised.
39. First, the shape and extent of the “right to strike” under ILO principles remains to be mapped out by case law. It seems premature to embark upon amendments to the legislation to deal with what some may perceive as possible defects, when if challenged and litigated at such some future state, the court might hold that they were not defects at all. The fact, however, that the juridical basis of the protective legislation is expressed in terms of immunity rather than as a statement of right subject to limitations is unlikely to be determinative. The ILO would be concerned with substance rather than form.
40. Objection is raised in paragraph 26 of the Hendy/Fredman Opinion to the fact that the Employment (Jersey) Law 2003 contains no special protection against unfair dismissal during lawful industrial action (although the bringing of an unfair dismissal claim by a striker is not debarred). The writers argue, in effect, that unless the dismissal of strikers is deemed unfair, an unfair dismissal claim would be “overwhelmingly likely to fail” because “the employer will assert that the dismissal was justified by the striker’s refusing to carry out his obligations under the contract and/or in seeking to disrupt the employer’s business”. The authors cite Ticehurst v British Telecommunications plc [1992] ICR 383.
41. In Ticehurst managers took part in industrial action by withdrawal of goodwill and participating in a half day strike. On returning from the strike the managers were asked to give an undertaking to work in accordance with the terms of their employment. On consecutive days they were turned back from work by their employer when they refused to give the required undertakings. Their claims for wages in respect of days when they had been turned back were ultimately unsuccessful. The Court of Appeal held that they had breached the implied term of fidelity in their contracts of employment by participating in the concerted withdrawal of goodwill.
42. Ticehurst is not an unfair dismissal case but does illustrate that even industrial action short of a strike is likely to constitute a breach of the contract of employment and thus misconduct which is capable of giving rise to a fair dismissal.
43. This does not mean that the Hendy/Fredman Opinion is correct in its implication that under English law the breach of contract implicit in (at least most forms of) industrial action will “almost inevitably” lead to a finding of fairness where a participant in industrial action is dismissed. The extent of guidance on this issue in English case law is limited because most cases of unfair dismissal and industrial action have been concerned with preliminary and jurisdictional questions arising under the UK provisions, as amended from time to time; but it is clear that the question under section 98 of the Employment Rights Act 1996 whether the employer acted reasonably in treating the employer’s conduct as sufficient to justify dismissal (which has to be determined in accordance with equity and the substantial merits of the case, in common with the similarly worded Jersey provision) does both in principle and in practice permit a finding of unfairness, where the employee is guilty of “misconduct” in particular
(a) where the employer failed to follow its procedures or to conduct reasonable investigations
(b) where there has been inconsistent treatment of employees in comparable circumstances
(c) where the decision is unreasonably harsh or is for any other reason outside the range of options open to a reasonable employer.
The possibility of unfairness on any of these bases can certainly apply to dismissal for participation in industrial action.
44. It may be the case that the ILO would regard the absence of more specific protection for employees dismissed whilst taking industrial action as an infringement of its Conventions or principles. Such an argument, however, can also be made against UK law which, as amended
(i) permits (very broadly speaking) dismissals of participants in official industrial action which has continued for more than a protected period (broadly 12 weeks): and
(ii) provides a wide immunity for employers when the industrial action is unofficial (i.e. not supported by the Union).[6]
45. In the United Kingdom reinstatement is a remedy which Tribunal is technically required to consider after every finding of unfair dismissal[7]. I have been advised that in practice it is very rarely sought by claimants and only awarded in a tiny minority of cases. It is particularly unusual for reinstatement orders to be made where there has been industrial strife because one of the matters which the Court is directed to consider in deciding on remedy is the “practicability” of reinstatement. A reinstatement order does not have the affect of an injunction; non-compliance by the employer merely entails additional compensation.
Recognition of Trade Unions. Code 1
46. The Hendy/Fredman Opinion states at paras 33-35 that the ILO Conventions “require that the process of recognition be afforded to the most representative union”. Paragraph 617 of the 1985 Digest is cited.
47. Paragraph 617 does not itself distinguish between “representative” and “most representative” unions. It states
“Employers including governmental authorities in the capacity of employers, should recognise for collective bargaining purposes the organisations representative of the workers employed by them”.
However, paragraph 617 of the same Digest does provide that
“where the law of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievance”.
The probable implication of the two paragraphs read together is that the duty to recognise does apply to the most representative union.
48. There is, however, nothing to indicate that a rule requiring 35% of the bargaining unit to be members of the applicant union (or likely members if recognition was granted[8]) before a ballot is required is incompatible with ILO conventions and principles.
Code 3
49. At paragraph 37 of the Hendy/Fredman Opinion doubt is expressed as to whether requiring precise information as to the numbers categories and workplaces of employees is necessary to achieve the stated objective of enabling the employer to understand how the workplace would be affected.
50. It is certainly a cause of frequent complaint by unions that the ballot notices they are required to give under UK legislation are unnecessarily specific. The University of London v NATFHE case is not reported and has proved impossible to trace. It is clearly not notorious as an illustration of any perceived defects in the UK legislation or for any other reason.
The statutory requirement to give notice in the United Kingdom
51. Amongst the instances in which immunity is forfeited by trade unions calling for industrial action are
(i) where the union fails to inform the employer of the ballot (not less than seven days before it is to take place) or to supply a sample ballot paper; see s. 226A of the Trade Union and Labour Relations (Consolidation) Act 1992 (“the 1992 Act”);
(ii) where the union fails to inform the employer of a ballot result under s. 231A of the 1992 Act; or
(iii) where the union fails to give the employer notice of the industrial action itself under s. 234A of the 1992 Act.
52. The notice under s. 226A must contain detailed information in particular as to the categories of employee and workplaces affected. (This is the subject of recent amendments).
53. Section 231A imposes a requirement on the union to take such steps as are reasonably necessary to ensure that the employers of individuals entitled to vote are informed of the ballot result.
54. Section 234A (also recently amended) contains very detailed provisions, recently amended, as to the notice of industrial action which must be given. The principal elements are:
(i) the notice must be given not earlier than the day when the union notifies the employer of the ballot result but not less than seven days before the first day of industrial action;
(ii) the notice must state whether the industrial action is to be continuous or discontinuous;
(iii) the notice must state that it is given for the purposes of the section;
(iv) the notice must provide detail as to the number of affected employees, the categories of employee to which they belong and the workplaces at which they work.
Balloting requirements in the UK
55. Immunity is lost where a trade union calls for industrial action without complying with the balloting requirements. The balloting requirements are exceptionally detailed. They are set out in ss.226 - 234 of the UK 1992 Act and include the notice requirements described above.
56. The bare bones of the balloting provisions are as follows. A trade union must give at least seven days notice to the employer that the ballot is to be held. It must appoint an independent scrutineer. Entitlement to vote in the ballot must be given equally to all members of the union whom it is reasonable at the time of the ballot to believe will be asked to participate. The voting paper (of which the employer must be provided with a sample) must be in a specified form and contain specified questions. Those participating in the ballot must be allowed to do so without interference or cost. There must be a majority vote in favour of the action. Circumstances in which separate ballots for separate groups are prescribed. The ballot result must be announced as soon as reasonably practicable and employers informed. A scrutineer’s report must be produced containing specified information. The call to industrial action must come from a specified person in the union and must not take place outside a specified timescale. Employers must then be given notice of the industrial action which has been called.
57. Whilst there is provision s. 232B for certain “small accidental failures” to be disregarded, it has certainly been common since these detailed provisions were introduced for trade unions to fall foul of the technicalities with result that injunctions have been granted requiring the calls for industrial action to be rescinded. The technical issues are exceptionally complicated. This does not mean that technical issues must be made equally complicated in Jersey.
Code 4
58. At paragraph 42 of the Hendy/Fredman Opinion it is suggested that the exclusion of classes of what might loosely be described as secondary action constitutes a breach of Jersey’s international obligations. Reference is made, however, to the European Social Charter. This does not apply to Jersey. In any event Article 6 of the Charter, which deals with the effective exercise of the right to bargain collectively, does not give any specific indication as to what if any forms of “secondary” action would fall within its reach.
59. It has not proved possible to trace a 2003 source for the quotation in paragraph 42 of the Hendy/Fredman Opinion from the ILO Committee of Experts but a 2005 statement refers to “previous comments” concerning what it describes as
“the right of workers 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 to participate in sympathy strikes provided the initial strike they are supporting is lawful”.
60. This does not appear to provide unambiguous support for the proposition that any restriction on the ability to strike lawfully will infringe ILO principles where the dispute is with a different employer or the action is to support a third party.
61. In general (with the important exception of peaceful picketing) “secondary” action falls outside the protection of the immunities under UK law. Thus if a blanket exclusion from protection where the affected employees work at a different place or are not personally involved would be likely to infringe ILO principles, at least in some circumstances, UK law itself would fail to reflect ILO principles by the general exclusion of secondary action from the scope of protection.
62. The right to freedom of expression conferred by Article 10 of the ECHR is subject to the qualification which, so far as it is relevant, provides that the exercise of the right may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society for, inter alia, the protection of the reputation or rights of others. Article 11, which confers the right of freedom of assembly and association, goes on to say that no restrictions shall be placed on the exercise of these freedoms other than as are prescribed by law and are necessary in a democratic society for, inter alia, the protection of the rights and freedoms of others.
63. The owner of neighbouring property is entitled under Article 1 of Protocol 1 of the ECHR to peaceful enjoyment of that property. That is a right which the state should protect, and if, as is argued by the authors of the Opinion, the failure to protect picketing from civil suits is an interference with the right of the unions and their members to freedom of expression and/or freedom of assembly, that interference is prescribed by Law and is necessary for the protection of the rights of the neighbouring property owners.
Secondary picketing
64. The Hendy/Fredman Opinion does not deal with the ILO principles in relation to pickets. The 1996 Digest states (at para. 583) that the action of pickets organised in accordance with the law should not be subject to interference by the public authorities; that the prohibition of strike pickets is justified only if the strike ceases to be peaceful (para. 584); and that taking part in picketing and firmly and peacefully inciting other workers to keep away from their workplace should not be unlawful. Significantly paragraph 587 provides:
“The requirement that strike pickets can only be set up near an enterprise does not infringe the principles of freedom of association”.
65. Much was made in the Hendy/Fredman Opinion of the Canadian case of Pepsi Cola Canada Beverages (West) Limited RWDSU v Local 558 SCC. 8. The Canadian Supreme Court was concerned with a Saskatchewan dispute. Saskatchewan had not imposed any statutory restriction on picketing. The Supreme Court made it clear that the main issue in the appeal was the legality of secondary picketing at common law. The Supreme Court held that secondary picketing was not unlawful in itself. It is clear that the Court was influenced by the principle of freedom of expression enshrined in the Canadian Charter. Its conclusion was that it was not necessary to recognise secondary picketing as tortious in itself because there were other torts, including trespass and nuisance, which provided sufficient protection. The Court reviewed the position by asking:
“what is caught by the rule that all picketing is legal, absent, tortious or criminal conduct. The answer is, a great deal. Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible regardless of where it occurs. Specific torts known to the law will catch most of the situations which are liable to take place in a labour dispute. In particular the breadth of the torts of nuisance and defamation should permit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, they will protect free access to private premises and thereby protect the right to use one’s property. Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract”.
66. Thus
(a) the Canadian Supreme Court was not overturning provincial legislation as the Hendy/Fredman Opinion indicates but declaring the common law in the absence of provincial legislation;
(b) the Court’s interpretation of the common law position recognised that secondary action would often be tortious and, therefore, unlawful - not least where it amounted to trespass or nuisance.
67. In short, the case does not appear to support the view that secondary picketing is recognised as a constitutional right in Canada or that, in the absence of statutory provisions, there would be any defence at all in Canada where secondary picketing entails the commission of a tort.
[1] The precise scope of the immunities has been the subject of many statutory amendments.
[2] The meaning of trade dispute is defined in different terms from the Employment Relations Law’s concept of “employment dispute”.
[3] See sections 222 to 225 of the UK 1992 Act.
[4] As especially defined by section 20 of the Act.
[5] The background to this case was that the employers had allegedly chosen to use Ministry arbitration in order to exploit their lobby with the Government (see para. 204).
[6] See sections 238A and 238 respectively of the Employments Rights Act 1996
[7] See s. 112 of Employment Rights Act 1996
[8] See page 4 of the draft Code.
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