EMPLOYMENT RELATIONS LEGISLATION
_______________
Presented to the States on 30th July
2002
by the Employment and Social Security
Committee
______________________________
STATES OF
JERSEY
STATES GREFFE
|
120 |
2002 |
R.C.28 (re-issue) |
Price code: B
EMPLOYMENT
RELATIONS LEGISLATION
Introduction
The Employment and Social Security Committee, in
consultation with the Industries Committee, was charged by the States to
introduce, or amend, existing legislation to provide statutory recognition of
Trade Unions and regulate employee/employer relations. This report summarises
the conclusions reached and the basis on which a law drafting brief will be
prepared for a new law which incorporates some existing legislation.
Background
When the Employment and Social Security Committee took
over the role of the then Industrial Relations Committee in 1997, it was
decided to develop a new strategy to modernise Industrial Relations in the
Island. Following extensive research, a consultative document, “Fair Play in
the Workplace” was issued at the end of 1998 to stimulate debate on the issues
present in the employment relationship.
Specifically, on trade unions and collective
employment rights, the report enquired whether industrial relations legislation
was out of date and/or ineffective, and if so, whether change could be achieved
through a “partnership approach” supported by a dispute resolution system or
whether a legal framework providing specific rights and liabilities was deemed
appropriate. Responses at the time indicated that most did not place this as a
high priority. The problems were largely perceived to be ‘public’ sector ones.
In June 2000, the Employment and Social Security
Committee lodged its proposals on “Employment Legislation” (P.99/2000),
advocating a phased approach and putting forward a priority order reflecting
the outcomes of its research and the consultation process. An amendment to P.99/2000
was brought by the Industries Committee which resulted in employment relations
matters being given higher priority.
Consultation
on trade union issues
To examine the matter of trade union legalisation and
regulation of employer/employee relations in more detail, the Employment and
Social Security Committee undertook the necessary research and subsequently
published a consultation document “Fair Play in the Workplace: Trade Union
Issues” in September 2001. This report included a comparative analysis of
legislation and systems present in other jurisdictions, particularly the
smaller ones, but also highlighted the general approaches worldwide and
commented on -
· the
status of trade unions;
· trade
union regulation and governance;
· regulation
of employer/employee relations;
· definition
and regulation of legitimate industrial action;
· institutional
frameworks.
Outcome of
public consultation
There were differing views expressed during the public
consultation process but a reasonable consensus emerged on the general approach
to new legislation as follows -
Non-adversarial
The majority of respondents believed that legislation
should not create a system which was built upon adversarial procedures and
processes. It was felt that negotiation, conciliation and arbitration, where
appropriate, should be the primary means by which industrial relations problems
and unrest should be addressed. During the debates about this issue, it was
noted by many commentators[1] that the Island already had a very important piece of
legislation - the Industrial Disputes (Jersey) Law 1956 - which
should not be discarded but strengthened.
Minimal legislation
Of the four main legislative options highlighted in
the report, the most common preferences which emerged during the consultation
process (60% of respondents) included either the development of the current
dispute resolution system or a minimalist legal approach. Generally it was
thought that legislation which concentrated solely on trade unions was
restrictive and that the emphasis should be on good employment relations,
encompassing all the parties.
Clear definitions and simple registration process
There was a strong view that trade unions should be
granted legal status and that a clear definition of what constituted a trade
union should be present in Law. It was also thought that staff and employer
associations should be included in this definition. In addition, most
respondents were in favour of some form of simple certification/registration
process.
New legal framework
Following the public consultation exercise, the
Employment and Social Security Committee met representatives of the Industries
Committee and the Human Resources Committee, to discuss the overall approach
and basis of a new legislative framework. There was a broad measure of
agreement between the Committees, and the Employment and Social Security
Committee appreciates the detailed comments received from those Committees
during and after that meeting, which have been reflected in this Report. The
following proposals emerged.
Overall approach
It was agreed that one of the principal aims must be
to create a climate which helps develop and enhance good industrial relations
in the Island rather then merely focus on the outcomes of unrest. It was
recognised that legislation alone cannot be expected to bring about good
industrial relations. Laws, whether complex or minimalist in nature, may not,
for example, shift outdated adversarial attitudes to collective bargaining and
dispute resolution. Any Laws developed to improve industrial relations must
underpin and support a cultural shift to collective bargaining in good faith,
recognising the position of all parties, including -
· acceptance
that both sides are in a relationship of interdependence;
· honesty
and openness in the employment relationship;
· mutual
respect between parties involved;
· justice
in the procedures and institutions;
· encouragement
of best practice;
· systems
that ensure community interests as a whole are present.
There was general agreement that in order to modernise
industrial relations practices in the Island and move from formal procedures
which focus on the outcome of a dispute (e.g. a strike), effort should be
concentrated on developing processes and frameworks which reduce the likelihood
of disputes and enable early resolution where they occur.
A minimalist legislative framework was therefore seen
as a platform from which modern employment relations can develop and flourish.
It was noted that the current legislation (the
Industrial Disputes (Jersey) Law 1956, amended in 1959) already provides
statutory procedures for dispute resolution. Whilst this Law has strengths,
some provisions are outdated and do not reflect a modern approach to effective
industrial relations. Furthermore, the legislation does not reflect the role of
the new Jersey Advisory and Conciliation Service (JACS) which was established
as an independent body in 2001 to conciliate, mediate and arbitrate should an
individual or collective dispute occur.
It was agreed that a new law should be created to
provide clarity in the relationships with emphasis on good ‘Employment
Relations’ and incorporating the current dispute resolution legislation,
updated and strengthened.
An “Employment
Relations (Jersey) Law”
In keeping with the key objectives, the following
‘core’ components of a new law were discussed and agreed.
Status of trade unions and associations
At present trade unions and associations are not
defined in Law nor do they hold legal status. As such they are unable to enjoy
the legal rights of other legal entities and are not subject to the
responsibilities placed upon such legal bodies.
It was generally agreed that a new law must include
clear definitions which should be wide enough to cover most situations of
industrial unrest. In addition to the traditional trade unions, associations,
both staff and employer, should be incorporated into a definition. Furthermore
the Law should clarify the status of such bodies as legal entities.
Process for registration of trade unions and associations
Consultation clearly demonstrated that the vast majority
of respondents were in favour of a very simple system of approving bodies as
“trade unions” for the purposes of the Law. It is proposed that a
‘registration’ process be introduced whereby representative unions (and
associations) would be required to provide information on the following lines
to verify their status and become a “registered organisation” -
· the name
and address of the union or association;
· the names
of the officials;
· a copy of
their internal rules and regulations;
· a copy of
procedures regarding balloting;
· information
on the availability of accounts to members.
It is envisaged that a Register would be maintained,
which would place information in the public domain.
Dispute resolution process
It was acknowledged that where unrest does surface,
there should be a speedy and effective dispute management process. Clearly, its
implementation should not provoke ‘industrial’ or precipitous action but
provide for an ordered process which encourages and facilitates resolution of
disputes.
One of the most important steps has already been taken
with the inception of JACS. It was noted that the number of cases referred to
the Industrial Disputes Officer has reduced as a consequence and feedback from
individuals, organisations and associations who have had cause to work with
JACS is extremely positive. It is therefore appropriate to support and
encourage the proactive work undertaken by JACS in preventing and resolving
potential disputes. It was noted that the present Industrial Disputes Officer,
Deputy Breckon, believes the Industrial Disputes (Jersey) Law 1956 is a very
effective piece of legislation in this respect and could be improved upon.
Fair dispute resolution
Taking the current Industrial Disputes Law as the
basic model, it is suggested that the process would be -
Negotiation wherever possible
to take place within the organisation
¯
(if this is unsuccessful)
¯
Conciliation and
mediation (for example through JACS or Independent Arbitrators)
¯
(if this fails)
¯
Employment Tribunal to determine the case
In practice, the process above is likely to be
iterative based on the experience of the current Industrial Disputes Officer. For
example, if a case is referred for conciliation, the parties could still be
asked to go back to the negotiating table, within certain time limits, where it
is clear that they have not negotiated in good faith or where negotiations have
not been fully exhausted.
Voluntary -v-
compulsory processes
Considerable thought has been given to whether any
process of dispute resolution should be voluntary or compulsory. Experience
shows that you cannot force parties to negotiate, and, where this is attempted,
the outcomes are less successful and indeed may fail if people simply go
through a process for the sake of it. It is difficult to see how a party which
did not want to be at the bargaining table would contribute to dispute
resolution constructively. It is accepted, therefore, that the initial stages
should be ‘voluntary’ with encouragement being provided through the process
prescribed in law and the availability of independent conciliation through
JACS. It is more likely with a voluntary conciliation process that the decision
would be accepted in good faith by both sides.
Employment tribunals
Where agreement cannot be reached by voluntary means,
then it is proposed that the matter be referred to an Employment Tribunal.
The Human Resources Committee take the view that
reference of collective disputes to an Employment Tribunal should be by
agreement of both parties on the basis that with a joint and voluntary approach
the decision of the Tribunal is more likely to be accepted by both sides.
The alternative view is that either of the parties
should have the ability to take the matter to an Employment Tribunal when all
avenues have been exhausted, on the basis that two parties already in
disagreement may not be able to agree on such a course of action and thus it
would be difficult to break any deadlock.
Generally, it was agreed that the decision of the
Tribunal would be binding.
Legislation currently being drafted in the main
Employment (Jersey) Law 200- for an Employment Tribunal System provides that a
decision of the tribunal is to be treated as a decision of the Royal Court. As
such, any party which does not comply with the decision of the tribunal would,
technically, be in contempt of Court. Remedies would need to be considered by
the Courts and ultimately fines or other appropriate sanctions could be imposed
on an organisation and/or individuals. It is proposed that the Tribunal would
be the final arbiter in any dispute, other than an appeal to the Royal Court on
a point of Law.
The Employment Tribunal will be drawn from a panel of people,
expert in areas of employment relations. It is proposed that the panel of
members would be called upon to constitute a tribunal either to consider
individual claims (e.g. unfair dismissal) or to determine collective issues.
The advantage of having an Employment Tribunal for
both individual and collective disputes is that one body would be responsible
for all forms of final dispute resolution and therefore expertise would be
strengthened and costs minimised. Furthermore, by repealing provisions present
in the Industrial Dispute (Jersey) Law 1956, the posts of Industrial Disputes
Officer and the Deputy (by Law, members of the States) would be removed.
Limiting disputes
Consideration was given to limiting disputes in
various ways such as excluding “Essential Services”. However, it was noted
that, without sanctions, any law prohibiting certain groups from striking may
be difficult to enforce in practice. Groups were unlikely to accept such
limitations without some recompense and a fair system of resolving
disagreements. It was noted that a number of agreements are now in place in
both private and public sector organisations, having been negotiated between
the relevant parties.
Consideration was also given to the type of ‘secondary
action’ legislation in place in the U.K. Again, it was noted that despite a
huge amount of legislation giving unions immunities and then taking some away
(such as secondary action) as well as complicated processes, (for example,
around balloting), compulsory rules often lead to “stand-off” situations and
laws may also be ignored or avoided by alternative forms of action. Furthermore,
few employers will risk inflaming the situation by taking legal action at this
point.
It was generally considered that the most effective
way for the Island to deal with secondary picketing would be through the
underlying power of the employment tribunal to resolve disputes on a compulsory
basis, supported by effective codes of practice.
Codes of practice
for good employment relations
In keeping with the minimalist legal approach it is
proposed that the basic legislation described above be supplemented by codes of
practice which describe good employment relations practice; in particular, how
to provide balance within the employee/employer relationship and avoid
disputes. It is suggested that codes would initially be on the following topics -
· resolving
disputes;
· circumstances
where it is considered reasonable that a union should be recognised;
· balloting
for industrial action;
· reasonable
limitations on industrial action.
Whilst codes would not be legally enforceable, if a
case were to reach the final stage in the dispute resolution process, the
Employment Tribunal would be empowered to take into account the extent to which
the parties involved observed the appropriate codes when reaching a decision. As
such a party who acted unreasonably without regard to the codes could be held
to have acted outside the spirit of the legislation.
Conclusions
A new core law should be formulated, incorporating
some of the current Industrial Disputes (Jersey) Law 1956, and including -
· status of
trade unions and associations;
· registration
of trade unions and associations;
· dispute
resolution process;
· employment
tribunals: final arbiters;
· provisions
for codes of practice to be issued.
It is proposed that the title of the new Law should
reflect the spirit of co-operation and be called the “Employment Relations
(Jersey) Law 200-”. This Law should encourage the parties to follow each of the
stages in the disputes resolution model above. Should arbitration be required,
the Employment Tribunal will make a binding decision. The concept of binding
arbitration is not new and is presently provided for in the Industrial Disputes
(Jersey) Law 1956.
Codes of practice would be developed which include the
setting out of a detailed framework for resolving disputes when they occur and
a means of addressing issues in a timely manner. Specific provision should be
present in Law giving powers to produce codes. Whilst codes of practice should
provide flexibility, in order that the most appropriate means of dispute
resolution can be adopted during any period of industrial action/ unrest,
legislation would provide “teeth” to ensure that codes are followed, within
acceptable parameters.
Whilst new legislation and associated codes of
practice will provide a framework for encouraging good practice and timely
management of disputes, they must be underpinned by a culture in Jersey which
supports the enhancement of good employment relations. JACS will continue to
have a key role to play here both in the education process and, when
appropriate, as a professional, independent body which can help the parties
resolve their differences.
The approach described above has an overall benefit in
that all of the agencies are to be involved in the resolution of both
individual and collective disputes, satisfying a strategic objective of
providing a straightforward and uncomplicated framework of law and process.