Woolworths employees: redundancy payments (P.2/2009) – amendment

STATES OF JERSEY

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WOOLWORTHS EMPLOYEES: REDUNDANCY PAYMENTS (P.2/2009) – AMENDMENT

Lodged au Greffe on 13th January 2009 by Senator A. Breckon

STATES GREFFE

WOOLWORTHS EMPLOYEES: REDUNDANCY PAYMENTS (P.2/2009) – AMENDMENT

1 P A GE 2 –

For the figure "£139,500" substitute the figure "up to £289,500".

2 P A GE 2 –

Renumber the proposition as paragraph  (a) and after that paragraph insert the following new paragraphs –

"(b)  to request the Minister for Treasury and Resources to register and pursue a claim for up

to £289,500  relating  to  the  payments  referred  to  in  paragraph  (a)  with  the  Joint Administrators of Woolworths plc., namely Mr. Neville Kahn, Mr. Daniel Butters and Mr. Nick Dargan of Deloitte LLP, P.O. Box 810, 66 Shoe Lane, London, EC4A 3WA;

(c)  t o request the Minister for Social Security to seek the assistance of the Jersey Advisory and Conciliation Service to verify –

1. w hether appropriate notice paymentshave been made to formerWoolworths employees in Jersey in accordance with the requirements of the Employment (Jersey) Law 2003;and
2. h owsuchpaymentscompare to the terms and conditions and paymentsmade in relation theredundancyofemployeesof the companyin the United Kingdom."

SENATOR A. BRECKON

The States have made very slow and painful progress in enacting employment protection legislation and should, by now, have had in place a statutory system to provide redundancy payments for those who lose their jobs without any other adequate provision.

I believe information I have set out below demonstrates that we, as a Government, have consistently failed to act to protect vulnerable workers.

It has happened before – more than once – the cry went up "something must be done" – BUT IT WASN'T!

The company building Queen's Valley reservoir – Sheppard Hill – went bust, leaving workers (in the month of December of that year) owed wages, holiday pay, Christmas bonus/savings, etc., relying on whip-rounds in the pubs and some sterling work from the late Fred Clarke as Constable of St.  Helier.

Also, 2 building companies went bust with similar consequences to the above – again, protection for workers was limited, in the main, to Parish relief, including loans or to voluntary effort.

So although these circumstances are not identical to the Woolworths situation, they demonstrate similarities in giving basic rights and protection to the workers.

To give some background I have provided some extracts from relevant reports below and appended the full Reports and Propositions for background information, because I believe that is important that Members recognise the failings of our system.

I do this because I believe it is EVIDENCE as to why we should support measures that give some financial comfort to the local workers of Woolworths.

Support to staff at Woolworths

While I support the efforts made by Deputy Southern and others to date to offer moral and practicable support to staff at Woolworths in Jersey, I believe the proposals do not go quite far enough – I have therefore proposed these amendments.

Before I give some explanation for the various paragraphs, I wish to make some general observations. Employment of young people

Woolworths have had a policy for many years of employing young people, mainly between the ages of 15 and 20  years old. Hundreds, if not thousands, of youngsters have worked there; as well as being paid they have learned some life-skills. In the main, young people have worked Saturdays, but also during busy periods over the summer or in December. My reason for saying this is that these young people are now witnessing their colleagues being put out on the street with hardly any more than a begrudging thank you. What sort of example or message does this send out from government when they ask quite rightly –

• How can this happen?

• Why aren't there safeguards in place?

• What is anybody going to do about it?

While we can plan and do talk about citizenship programmes and engaging young people – when they witness real-life events like this is it any wonder they ask if the Government is living in the real world?!

Loyalty NOT rewarded

They Jersey employees of Woolworths have remained loyal to the last. They were told on 27th November 2008 that a buyer may be found. They had no reason to believe that they would not be treated in a similar manner to their colleagues in the UK. The Jersey store was profitable and had takings in excess of £200,000 in December 2008. On 30th December the staff were told, as the shop was closing for business, that they would not be receiving similar severance terms to their U.K. colleagues.

Letter of termination

A copy of letter and enclosure delivered in bulk to the Woolworths Jersey store on Friday 9th January 2009 is attached. As you will see, it is different to the one issued on 3rd January in that the 4th paragraph has been withdrawn. As you will see, the administrator did not even have the decency to individualise the letters. They were delivered by courier in bulk in plain envelopes and it was left for the staff to distribute them amongst themselves.

While my amendments in themselves, or indeed that of Deputy Southern will not put everything right, including the  damage  done  to  the  Island's  reputation  outside  of  the  Island,  by  adverse  publicity,  it  can,  I  believe, demonstrate publicly a duty of care and compassion and provide some comfort to those affected and their families.

By adding £150,000

This allows for both a period of notice, which is an entitlement under Jersey Law, which the administrator has remained silent upon, and also for loss of employment through equivalent redundancy terms, and is a maximum amount that could be payable.

New paragraph (b)

"to register a claim with the administrator"

The UK Administrator has not recognized either the Minimum Periods of Notice in Jersey or acknowledged a similar provision for notice contained within the individual contracts I have seen.

There is no easy and timely remedy for the individuals involved; however, a collective challenge on their behalf with details available from employment records, could, in my opinion, have merit.

Paragraph  (c) is to request the Minister for Social Security to seek the assistance of the Jersey Advisory and Conciliation Service to verify the employment details of former Woolworths employees in Jersey in accordance with the requirements of the Employment (Jersey) Law 2003; and how such payments would compare to the terms and conditions and payments made in relation the redundancy of employees of the company in the United Kingdom.

Why no redundancy scheme in Jersey?

For Members' information I have attached details which show that a redundancy scheme would now be in place had it not been "scuppered" by a former Industries Committee in 2000, who amended the proposition (as set out below) to give greater priority to "the status and activities of trade unions".

Therefore, I believe because of this period of inactivity in progressing a Jersey redundancy scheme, the States owe a duty of care, and indeed have some moral obligation to those, such as the employees of Woolworths, who are adversely effected by a decision of the UK receiver – who is making profit from the lack of protection for local workers on the local Statute.

The Isle of Man has had a redundancy scheme since 1990

Set out below is an extract from an e-mail exchange I have had with the Isle of Man –

"Under the Isle of Man's Redundancy Payments Act 1990, employees with a minimum of 2  years' service are legally entitled to redundancy payments from their employer. Government funds are available through the DHSS where an employer may have insufficient funds to make such payments. Details of redundancy  payment  rights  and  basis  for  calculating  payments  can  be  found  at http://www.gov.im/lib/docs/mirs/guides/aguidetoredundanciesweb.pdf. Employers or employees seeking confidential advice regarding the management of redundancies can contact the Manx Industrial Relations Service on 01624 672942 or e-mail iro@ir.gov.im

In the case of Woolworths – and any other business in administration – the administrator must comply with the law in each of the relevant jurisdictions. As a result, Deloittes has confirmed that the 56 former employees of Woolworths IOM will receive payments compliant with the IOM statutory minimum. It is difficult for administrators to pay more than the statutory minimum as other creditors may then have a basis for a claim against the administrator.

I hope this helps.

Chief Executive

Isle of Man Department of Trade & Industry"

For Members' information I have attached the letters given to employees of Woolworths Jersey on 3rd and 9th January 2009. I would ask Members to note the missing fourth paragraph on the second letter.

To give Members some background to the progress, or lack of it, in Employment legislation, I have attached some background below.

1. The history

In 1997 the Employment and Social Security Committee ("the Committee") took over responsibility for industrial relations from the former Industrial Relations Committee. In November of that year the States approved the Policy and Resources Committee's proposition, which included action to be taken by the Committee to develop

an industrial relations strategy.[1] In addition to this initiative, the Committee was also charged in that same debate with introducing minimum wage and maternity policies for the Island.

2. Theminimumwage and "FairPlayin the Workplace" Minimum wage

In 1997 the Committee had already commissioned some research into the need for and the impact of a minimum wage policy in the Island. The result of that research and extensive consultation was placed before the States in a report and proposition that was debated in March 1999 (P.227/98). During the debate the States voted, not only in favour of the introduction of a minimum wage policy, but also for the establishment of an ACAS style advisory and conciliation service to be known as the Jersey Advisory and Conciliation Service (JACS), supported by a Tribunal type service and a consultative body to be known as the Employment Forum. The drafting instructions for the Minimum Wage Law were subsequently sent to the Law Draftsman, who had indicated that the Law could not be effectively implemented until such time as basic employment legislation supporting it, and also a system to deal with its enforcement, were in place.

"Fair Play in the Workplace"

The Committee responded to the request for improved employment legislation by producing a comprehensive publication, "Fair Play in the Workplace" ("Fair Play"), which was circulated Island-wide to inform the debate. This continued throughout 1999 with numerous consultative meetings and seminars. The publication aimed to –

• p r o m ote modern employment relations practices in the Island;

• o u t li ne the issues commonly affecting employers, employees and trade unions;

• a s k Islanders' views as to whether or not change or improvement was needed in workplace practices to take the Island into the 21st century and beyond.

Employment Protection Progress

The (then) Social Security Committee, after a long consultation process, brought proposals (P.99/2000) to the States in the following terms (with my emboldened text below).

P.99/2000: EMPLOYMENT LEGISLATION

Lodged au Greffe on 20th June 2000

by the Employment and Social Security Committee

PROPOSITION

THE STATES are asked to decide whether they are of opinion –

to r e fer to their Act dated 16th March 1999 in which they approved the introduction of legislation to

provide for the introduction of a minimum wage and a trainee wage and the establishment of a Jersey Advisory and Conciliation Service and an Employment Tribunal; and

1 .  t o a pprove the introduction of legislation as detailed in Part Two of the report of the Employment

and Social Security Committee dated 8th June 2000, to –

( a ) f a c i litate the introduction of the minimum wage, including provisions to introduce pay

statements, and to offer protection from unfair dismissal;

(b ) e s t a b lish acceptable contractual minimum standards;

( c ) r e v i se the Industrial Disputes (Jersey) Law 1956, as amended, as described in the said

Report;

2 . t o c harge the Committee to develop such further measures as may be necessary, as

detailed in Part Three of the Report of the Employment and Social Security Committee dated 8th June 2000, to deal with the issues of –

(a ) th e s tatus and activities of trade unions in the Island;

(b )  r e d u ndancy, maternity, equal pay and equal opportunities and any issues regarding

discrimination in the work place;

(c ) f l e x i ble working and family friendly policies and the protection of employees involved in

business mergers and acquisitions.

EMPLOYMENT AND SOCIAL SECURITY COMMITTEE

With regard to the above, a redundancy scheme would now be in place had it not been "scuppered" by a former Industries Committee in 2000, who amended the proposition (above) to give greater priority to "the status and activities of trade unions". This, by its inclusion in the "first phase", has led to years of delay, because of the Industries Committee's emphasis on trade union activity.

Their amendment (P.183/2000 lodged on 24th October) was in the following terms –

EMPLOYMENT LEGISLATION (P.99/2000): AMENDMENTS ____________

1. after paragraph (1) insert the following paragraph –

(2) to charge the Employment and Social Security Committee, in consultation with the Industries Committee, as part of its first phase of new legislation as set out in paragraph (1) above, to introduce legislation, or amend existing legislation as appropriate –

(i ) t o p rovide statutory recognition and regulation of trade unions in the Island; (i i) to provide for the regulation of employee/employer relations; and

(i ii ) t o define and regulate legitimate industrial action.

2. renumber paragraph (2) as paragraph (3).
3. in the renumbered paragraph (3) delete sub-paragraph (a) and renumber sub-paragraphs (b) and (c) accordingly.

INDUSTRIES COMMITTEE

The introduction and acceptance of this "new" paragraph (2) in effect delayed by years the Employment and Social Security Committee's own employment protection plan – including REDUNDANCY provision, therefore I believe we, as a Government, have failed to provide effective protection and should therefore recognise this by ensuring that the Jersey workers are provided for in a manner no less favourable than their UK or Isle of Man colleagues.

Therefore I believe, because of this period of inactivity on a redundancy scheme, the States owe a duty of care, and indeed have some moral obligation to those, such as the employees of Woolworths, who are adversely effected by a decision of the UK receiver – who is making profit from the lack of protection for local workers on the Statute.

Below is an extract from the 1999 Report of the (then) Social Security Committee. "4. Redundancy (p.31 Fair Play)

When considering the issue of redundancy, the Committee considered both the philosophy behind the awarding of redundancy payments and then the relevance of that philosophy in the Jersey workplace.

Historically, a redundancy payment is a payment made to an employee who has lost his job as a result of redundancy, and who becomes eligible for a compensatory payment based on his length of service. It is a payment made in addition to any remuneration payable under the notice provisions of the employee's contract. The policy of awarding redundancy payments was not introduced to award bonus payments to employees for long service, but rather to compensate them for the loss of their jobs.

However, some may question the need for the automatic payment of redundancy awards when redundancies occur in a labour market such as currently exists in Jersey where demand for labour is high. Indeed, many believe that the current notice periods granted under the Termination of Employment (Minimum Periods of Notice) (Jersey) Law 1974 were drafted in recognition of the fact that there are no redundancy provisions under Jersey law.

The Committee believes, in principle, that a redundancy policy should form part of any employment law framework that is designed to address the 21st century. It believes that any provisions that are introduced in relation to redundancy and length of service in Jersey should be calculated against what is felt to be best in Jersey's interests, and after a fresh comparison of what is happening in other jurisdictions. Currently there is no evidence of large numbers of redundancies in Jersey. Most people who are made redundant appear to find employment fairly quickly, and the Committee believes that problems relating to age discrimination or the requirement to re-skill are best addressed as discrimination or "lifelong learning" issues.

However, although Jersey's labour market is currently buoyant, the situation may not continue. Even now if businesses close in certain industries where there is little or no further demand in the Island for the skills of those made redundant, genuine hardship can result. In addition, the situation may well change if the skills needs of the Jersey economy were to radically alter, if the economy were to decline or "outsourcing" and rationalisations were to noticeably increase as a result of business competition, population policies etc. Therefore, the Committee feels that provisions to provide for employees who are made redundant should be introduced in recognition of the fact that employees can suffer hardship as a result.

The Committee proposes that a redundancy policy should be introduced with redundancy payments based on a scale based on length of service. As part of its philosophy of making any legislation easy to understand and workable, the Committee would envisage the length of service scale to be applied in redundancy situations being the same as that applied in unfair dismissal cases for length of service awards. As with unfair dismissal claims, the redundant individual would also be entitled to the normal termination of notice payment due under his contractual terms."

PROPOSITION

THE STATES are asked to decide whether they are of opinion –

to r e fer to their Act dated 16th March 1999 in which they approved the introduction of legislation to

provide for the introduction of a minimum wage and a trainee wage and the establishment of a Jersey Advisory and Conciliation Service and an Employment Tribunal; and

1 .  t o a pprove the introduction of legislation as detailed in Part Two of the report of the Employment

and Social Security Committee dated 8th June 2000, to –

( a ) f a c i litate the introduction of the minimum wage, including provisions to introduce pay

statements, and to offer protection from unfair dismissal;

(b ) e s t a b lish acceptable contractual minimum standards;

( c ) r e v i se the Industrial Disputes (Jersey) Law 1956, as amended, as described in the said

Report;

2 .  t o c harge the Committee to develop such further measures as may be necessary, as detailed in Part

Three of the Report of the Employment and Social Security Committee dated 8th June 2000, to deal with the issues of –

(a ) th e s tatus and activities of trade unions in the Island;

( b ) r e d undancy, maternity, equal pay and equal opportunities and any issues regarding

discrimination in the work place;

(c ) f l e x i ble working and family friendly policies and the protection of employees involved in

business mergers and acquisitions.

EMPLOYMENT AND SOCIAL SECURITY COMMITTEE

The Industries Committee sought to amend this as follows with P.183/2000 lodged on 24th October:

1. after paragraph (1) insert the following paragraph –

(2) to charge the Employment and Social Security Committee, in consultation with the Industries Committee, as part of its first phase of new legislation as set out in paragraph  (1) above, to introduce legislation, or amend existing legislation as appropriate –

(i ) t o p rovide statutory recognition and regulation of trade unions in the Island; (i i) to provide for the regulation of employee/employer relations; and

(i ii ) t o define and regulate legitimate industrial action.

2. renumber paragraph (2) as paragraph (3).
3. in the renumbered paragraph (3) delete sub-paragraph (a) and renumber sub-paragraphs (b) and (c) accordingly.

INDUSTRIES COMMITTEE

and then amended their amendment with P.218/2000 lodged on 21st November:

EMPLOYMENT LEGISLATION (P.99/2000): AMENDMENTS (P.183/2000) – AMENDMENT ____________

in p a ragraph (a) of the amendment, for the words –

" i n c o n s u ltation with the Industries Committee, as part of its first phase of new legislation as set out in paragraph (1) above, to introduce legislation, or amend legislation as appropriate –"

su b s t itute the words –

" t o c o n s u lt with the Industries Committee and all other interested parties, and to present to the States as soon as possible a further report and proposition addressing the appropriate level of legislation necessary to implement a balanced and effective approach to the inter-related trade union issues identified in Part Two of the report of the Employment and Social Security Committee dated 8th June 2000, and in particular –"

INDUSTRIES COMMITTEE

For Members' information I have attached further information from the aforementioned Reports of the Employment and Social Security and Industries Committees.

REPORT (of the Employment and Social Security Committee)

PART ONE

1. The history

In 1997 the Employment and Social Security Committee ("the Committee") took over responsibility for industrial relations from the former Industrial Relations Committee. In November of that year the States approved the Policy and Resources Committee's proposition, which included action to be taken by the Committee to develop

an industrial relations strategy.[2] In addition to this initiative, the Committee was also charged in that same debate with introducing minimum wage and maternity policies for the Island.

2. Theminimumwage and "FairPlayin the Workplace" Minimum wage

In 1997 the Committee had already commissioned some research into the need for and the impact of a minimum wage policy in the Island. The result of that research and extensive consultation was placed before the States in a report and proposition that was debated in March 1999 (P.227/98). During the debate the States voted not only in favour of the introduction of a minimum wage policy but also the establishment of an ACAS style advisory and conciliation service to be known as the Jersey Advisory and Conciliation Service (JACS), supported by a Tribunal type service and a consultative body to be known as the Employment Forum. The draft for the Minimum Wage Law was subsequently sent to the Law Draftsman, who has indicated that the Law cannot be effectively implemented until such time as basic employment legislation supporting it and also a system to deal with its enforcement are in place.

"Fair Play in the Workplace"

The Committee responded to the request for improved employment legislation by producing a comprehensive publication, "Fair Play in the Workplace" ("Fair Play"), which was circulated Islandwide to inform the debate. This continued throughout last year with numerous consultative meetings and seminars. The publication aimed to –

• p r o m ote modern employment relations practices in the Island;

• o u t li ne the issues commonly affecting employers, employees and trade unions;

• a s k Islanders' views as to whether or not change or improvement was needed in workplace practices to take the Island into the 21st century and beyond.

3. Thefocus

Three clear messages were given in the Fair Play document and referred to throughout the consultation process. Those were that –

• " T  h e Committee firmly believes that fair play in the workplace is enhanced by a partnership

approach underpinned by a legal safety net of rights, responsibilities and protections. Jersey cannot justify remaining one of the few states that denies its citizens such basic rights as protection from unfair dismissal and freedom from discrimination. At the same time we should not become as heavily regulated as some other states within Europe and elsewhere. A sensible

balance needs to be struck."[3]

• " T h e purpose of the consultation process is to reach consensus in our society on a legal framework which will provide standards of decency and fairness in the workplace but not undermine the

social and economic benefit that we have from a healthy economy and full employment."[4]

• "J e r sey's existing employment laws are out of date, fragmented and ineffective. There is a

pressing need for a workable legislative framework which will reflect the Island's particular circumstances and introduce rights and responsibilities both for employers and employees. the employment relationship is now highly regulated and becoming more so, particularly in Europe.  This  poses  a  problem  for  small  jurisdictions  like  Jersey  which  do  not  have  the

infrastructure required to support such legislation."[5]

These statements present an enormous challenge and the task ahead should not be underestimated. The survey results and consultation showed that a large majority of Islanders want to see a new employment law in Jersey. It should be remembered however that other jurisdictions worldwide have taken 20 – 30 years to establish their infrastructures of employment legislation. Jersey cannot catch up overnight and nor would it be right for the Island to imitate the types of legislation found in larger jurisdictions.

When formulating these proposals the Committee has attempted to follow the guiding principles, as stated in Fair Play[6], that any new employment legislation –

• i s e a sily understood;

• i s e ff ective in tackling the real problems;

• s u p p orts cohesion in the workforce;

• l a y s down clear standards of decency;

• s u p p orts a competitive economy;

• i s a ff ordable.

4. Trends for the 21st century

Any new legislative structure has to be designed to suit the workplace of the 21st century. The following changes that are taking place in the workplace in Jersey and throughout the world were considered by the Committee when formulating these proposals –

Globalisation

Worldwide there is a definite move towards the internationalisation of corporate structures. Jersey already has many  businesses  with  international  connections  and  the  widely  divergent  gap  in  the  Island's  employment standards compared with that of other jurisdictions with whom the Island works is not easy to explain. For some, there may be attractions in setting up businesses in an unregulated environment. However, as has recently been seen in the Finance Sector, there is an expectation amongst OECD countries that the Island should apply decent standards in all its dealings.

Equally, as an island that relies on imported labour, the Island has to address the needs of those who come here to work from other jurisdictions, whether they be seasonal or employed on a longer term basis.

Redistribution of labour

There is a growing move away from traditional industries. Growth is generally apparent in the service industries such as leisure and finance, whilst there is a marked decline in manufacturing industries, which are becoming increasingly  automated.  Locally  these  have  had  their  effect  and  there  is  little  doubt  that  e-commerce developments will also have a considerable impact on the workplace.

Recruitment/Training

Growing importance is being given to recruitment and training procedures as these can prevent many problems from arising later in employment relationships.

Greater emphasis is also being placed on the training and development of staff. There is a recognition of the need to  improve  skills  in  all  sectors  as  low  skilled  work  diminishes,  computerisation  expands  and  global competitiveness increases. Most enlightened firms recognise that a sound industrial relations policy helps increase productivity and profitability.

Flexibility

There is an increasing trend in the need for both business managers and staff to be flexible in the way they work and  approach  their  work.  Such  flexibility  is  reflected  not  only  in  the  variety  of  arrangements  now  made concerning the hours that people work, but also in the changes caused and likely to be caused by the impact of information technology.

Female participation

The number of women in the workforce is increasing – Jersey already has the highest female participation rate in Europe.

Consultation

Increasingly, the need for consultation between all partners in the employment relationship is being recognised. Consultation fosters partnership within relationships and can help focus business direction, as well as being a considerate way of advising those to be affected by business change. Some jurisdictions make consultation between the parties obligatory in some business circumstances.

5. Theframework

In determining how best to establish the legal framework, the Committee has borne the following advice in mind –

• t a k e a step-by-step approach which adheres to an agreed agenda to give all parties time to prepare for change;

• c o n s ult with all interested parties at each stage of the development of the legislation;

• u s e c odes of practice in conjunction with and supported by legislation (the use of codes of practice without a legal framework to support them is not likely to be effective);

• u s e l ay members in arbitration and tribunal procedures as such people can have broad background experience of the "local" workforce and a non-legalistic approach to the issues at hand;

• c h o o se suitable remedies that will be both workable and used when legal enforcement is required;

• a v o i d heavy-handed legislation as it can have a detrimental and stifling effect. Small pieces of disjointed legislation can also be ineffective.

In the report that follows, the Committee is proposing a framework which sets minimum standards reflecting the views expressed during the consultation process as acceptable and representative of what might reasonably be expected as part of any working relationship in the 21st century.

Throughout the consultation process it was clear that Islanders wished to retain their freedom to negotiate their own contractual terms. Indeed that is the default position in Jersey law where the maxim "la convention fait la loi des parties" so long as "elles ne contiennent rien de contraire aux lois et aux bonnes moeurs, et qu'elles interviennent entres personnes capables de contracter" is still followed in the courts so far as contractual matters are concerned (i.e. the agreement made by the parties is binding upon them – so long as it contains nothing illegal or immoral and the parties themselves are legally capable of entering into a contract – Pothier.) In reality the benchmarks provided by the proposed legislation should provide a default position for those entering into an employment contract, but nothing should prevent the parties from negotiating their own better terms.

6. Who is the legislation toprotect?

Jersey has a wide selection of employers and working groups to which the new legislation will apply, and the Committee is aware of the need to assess the effect and workability of its proposals with each group. It recognises that careful consideration will have to be given to their likely impact as the details develop during the law drafting stages.

The Committee believes that it is important to continue its consultation with all concerned, and it has already established an Employment Forum made up of nine members representative of the community: three employers, three employee and union, and three independents, through whom consultative meetings will be arranged at which views can be expressed by all interested parties and organisations.

7. "Fair Playin the Workplace"

"Fair Play in the Workplace" listed the following points for consideration –

• t e rm  s and conditions of employment;

• e q u a lity of opportunity and treatment, including discrimination;

• m  a te rnity arrangements;

• p a y m  ent of wages and salaries;

• t e rm  ination of employment, including dismissal; redundancy and the transfer of undertakings;

• f le x i ble working practices;

• a d v i ce, conciliation and enforcement ( the Jersey Advisory and Conciliation Service (JACS) and an Employment Tribunal);

• t ra d e unions and collective employment rights and obligations.

The sections which follow in Parts Two and Three of this Report demonstrate some of the thinking and reasoning that has evolved around each topic and which has led to the formulation of the proposals put forward by the

Committee. The Committee has sought to satisfy the criteria it set itself in the Fair Play document[7] whilst also taking heed of the results of the Fair Play survey and the consultation meetings, the findings of its international

research and the recommendations it received on what approaches did or did not work when establishing a new legal infrastructure.

In addition, the Committee believes that it is inevitable that the needs and desires of some sectors will be different to those of others. However, in drafting these proposals it has tried to balance those needs and to introduce the proposed legislation in a manner that will not be perceived as overtly favourable to any one group over the other. As stated previously, the Committee believes that the new legal infrastructure should lay down a set of legal minimum standards and safeguards for all involved in the workplace whilst not stifling the Island's business economy.

8. Summaryofproposals

The Committee proposes that the new infrastructure should have four components –

• a   le g islative framework that will set minimum standards by which all those in the workplace will

be bound. The framework is intended to reflect common standards of decency and fairness on behalf of all parties to the employment relationship. It is intended to provide a sound basis of acceptable standards that will enhance and support the functioning of the Island's business community as it moves into the 21st century. The legislation is also intended to promote discussion between the parties and discourage adversarial relationships;

• a n  a dvisory and conciliatory service, to be known as the Jersey Advisory and Conciliation

Service (JACS) which will be supported by an Employment Tribunal, in its work; (As has been stated previously the States have already approved the setting up of these bodies and proposals in connection with their establishment and functioning do not form part of this report.)

• an    Employment Handbook which will contain advice and guidelines on all aspects of the

employment relationship; good practice and the effect of the new laws that are proposed. Where appropriate the guidelines will be referred to by those who ultimately work for JACS and the Employment Tribunal as evidence of what constitutes good practice. It is proposed that this document will be a "living document" which will be continuously monitored, reviewed and updated as required.

• a n   E mployment Forum consisting of nine representatives from employee and employer groups

and independents.[8] The Forum has already been set up to be responsible for consulting all interested parties on all major issues in connection with the Minimum Wage Law and the new

employment legislation. It will also be responsible for making recommendations to the Committee as a result of evidence and opinion received during its consultations. The Committee will have a duty to explain to the States why it has not followed the recommendations of the Employment Forum in any policy it brings forward to the States for debate if this is shown to be the case.

As far as the legislation framework is concerned, the Committee proposes that it be introduced in two distinct phases and within those phases the Committee is proposing that the legislation be introduced in further tiers. The phases will approximate with Parts Two and Three of this Report and are summarised below –

• t h e  f irst phase should have regard to the minimum wage legislation already approved by the States and therefore –

(i ) i n c lude legislation relating to payment of wages issues and unfair dismissal (including protection

from dismissal on pregnancy-related grounds) and the establishment of JACS and its supporting enforcement body all of which, as the Law Draftsman has said, will be fundamental to the efficient functioning of the Minimum Wage Law;

(i i) in t roduce legislation focusing on the contract of employment. Such legislation should emphasise

the key rôle the parties themselves play in the negotiation of their own contracts and should establish the minimum standards that the Committee has recommended, such as one obligatory rest day per week and two weeks' annual paid leave as well as the minimum wage;

(i i i) i n troduce legislation to revise the Industrial Disputes (Jersey) Law 1956 in accordance with the

proposals outlined on page 24 of this Report [nos. (a); (b); (c)] with the intention that an enhanced system of

dispute resolution will result from the use of the Law and enable JACS to function more effectively.

• t h e  s econd phase should include measures as deemed necessary in dealing with the issues of – (i ) t ra d e union;

(i i) re d undancy;

(i ii ) m  aternity and equal pay and equal opportunities as well as all other discriminatory issues in so far

as they have not already been dealt with or are to be dealt with by any other Committee;

(i v ) f le xible working and family friendly policies such as unpaid leave for domestic emergencies; (v ) em  ployees involved in merger or acquisition situations.

For various reasons, some of which are listed below, the Committee does not think that it is feasible or necessary to address all the issues discussed in the Fair Play document coincidentally.

• F i rs t ly, it does not wish to overburden employers with new legislation, for it believes that change must be

assimilated gradually if it is to be acceptable and workable and enforceable. The Committee also believes that there is a vital educative function to be performed if the proposed changes are to be implemented smoothly, and it proposes that the educative programme will run whilst the legislation is being drafted so that Islanders are well aware of the changes to be made, why they are being made and how they will impact.

• S e c o ndly, the Committee has to balance the likely resource and manpower implications of the proposed

changes against the availability of such resources. However the Committee believes that it is of paramount importance that the new laws are monitored and enforced otherwise they will lose credibility. In addition, it wishes to avoid overburdening the JACS service as a result of too many issues being addressed at once.

• T h i r dly, the Committee believes that protection from discriminatory practices based on race and age may

well be granted in the workplace as a result of new overall policies to be promoted by the Policy and Resources Committee. The Committee therefore feels that the prime responsibility for strategy and policy on all discriminatory issues should rest with the Policy and Resources Committee and that an overall approach, co-ordinated by that Committee, would achieve a better and more sensible result.

• F o u rthly, the Committee hopes that acceptable and  decent contractual standards and good working

practices will gradually become the norm without the need for overpowering legislation if the proposed new minimum standards and good practice guidelines are put in place, backed up by an effective dispute resolution system.

However, most importantly in the Committee's view, the States have already approved the introduction of a minimum wage policy in the Island. The Minimum Wage Law will of itself be a major piece of legislation. The Committee has always maintained that the introduction of the minimum wage should be an integral part of the new employment law infrastructure. For example, some of the strongest messages received during the consultation period were requests to introduce pay statements and to afford protection from unfair dismissal. Accordingly, if legislation on all these issues is introduced as a priority Islanders will already have a considerable amount of new legislation to contend with. They will, however, see the introduction of legislation dealing with some of the key issues highlighted in the survey and minimum wage legislation which is long overdue.

PART TWO

Issues proposed for Phase One of the new legislation

1. Terms and conditions of employment(pp.15-16; 52-54 Fair Play) The contract

During the consultation period it became apparent that people still view the employment contract as the anchor of any employment relationship. It was often stated that the parties should be free to negotiate their own terms without government interference and that the better use of contracts would ensure greater clarification of both the employer's and the employee's rights and responsibilities. There was a conviction that if better enforcement procedures existed then more could be achieved through the use of contracts alone without the need for weighty legislation.

As a result of the international research it carried out, the Committee learnt of the particular emphasis given to the rôle of the contract in New Zealand employment legislation. The New Zealand Employment Contracts Law 1991 emphasises the importance of the parties' freedom to negotiate their own contract terms, subject to some statutory minimum standards (e.g. holiday pay). The Committee believes that an approach similar to that adopted in New Zealand is one that Islanders would find acceptable. It would satisfy the wishes of those who emphasised the need for individuals to retain the right to negotiate their own contractual terms, but it would also allow for minimum standards to be set in law. This approach appears also to marry well with both the Jersey customary law maxim referred to earlier and the States decision to approve a minimum wage policy. (The setting of minimum contractual standards in law is not in itself uncommon – the setting of a minimum wage, for example, is the setting of a minimum standard.)

In the following two paragraphs the Committee proposes two other minimum standards that it considers desirable for Jersey.

Provisions for a weekly day off and paid annual leave

It is quite clear that anyone working excessive hours will not perform to the best of their ability and indeed accidents may occur. The Committee therefore recommends that every person be entitled to one rest day per week. Provision for this should be included in the contract. The Committee appreciates that for some groups alternative provisions may be necessary, for example for part-time workers who work seven days per week or shift workers on seven-day shifts.

However the principle of officially allowing for rest time on a weekly basis should be recognised. The Committee does not propose that the day be specified in law, though most contracts would probably include Sunday as the rest day. The law would have to allow the contracting parties some flexibility, especially as many jobs require Sunday working and different religious beliefs recognise different holy days.