Employment legislation - petition

STATES OF JERSEY

r

EMPLOYMENT LEGISLATION: PETITION

Lodged au Greffe on 4th October 2005 by Deputy G.P. Southern of St. Helier

STATES GREFFE

PROPOSITION

THE STATES are asked to decide whether they are of opinion

to r eq uest 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 that have been issued for consultation purposes, 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, if any such provisions are identified, to take the necessary steps to remedy the situation.

DEPUTY G.P. SOUTHERN OF ST. HELIER

REPORT

The detailed arguments supporting the objections and reservations that continue to be expressed by Trade Union representatives on the Island over Employment Laws and their associated Codes of practice are laid out in the accompanying submission, (Appendix 1) by John Hendy Q.C., one of the U.K.'s foremost Employment Law specialists.

In its Consultation document "Fair Play in the Workplace: Trade Union Issues" issued in July 2001, the Employment and Social Security Committee set out a Charter of Basic Trade Union Rights in Jersey as follows –

E v e r y worker should have the right:

1 to j oin a trade union and not be discriminated against on the grounds of union membership or

participation in union activities;

2 to b e a trade union representative and have reasonable time off for trade union duties and not be

discriminated against on these grounds;

3 to b e represented by a trade union, individually or collectively on any work issue;

4 to t ake industrial action to protect his or her occupational, social, economic or legal interests

without the threat of dismissal or discrimination;

5 to p icket at the workplace relevant to the dispute where the worker is employed. E v e r y trade union should have the right:

1 t o organise and support industrial action in accordance with the union's rulebook to protect

members' interests;

2 to u phold its own rule book and democratic procedures and to spend its funds and conduct its own

activities in accordance with its rules, free from employer interference;

3 to re present its members in any workplace on any issue;

4 to b e granted recognition, where necessary, voluntarily and/or formally, and to negotiate collective

agreements with any employer where a majority of employees are members of the union or vote for recognition of it;

5 w h e re the union has members, to have reasonable access to a suitable location in an employer's

premises in order to communicate with members, to inspect for health, safety or welfare reasons or to ensure compliance with employment laws.

It is the belief of the employees' representatives in Jersey that the employment laws and codes of practice as currently drafted breach this Charter under workers' right 3, right to representation, and trade union right 4, righ to recognition. In addition, it is contested that the laws and codes, as currently drafted may breach the International Labour Organisation (ILO) Conventions 87, Freedom of association and protection of the right to organise, and ILO Convention 98, Right to organise and bargain collectively.

There are no financial and manpower implications for the States arising from this petition.

IN THE MATTER OF THE EMPLOYMENT RELATIONS (JERSEY) LAW 2005

AND IN THE MATTER OF THE DRAFT EMPLOYMENT RELATIONS CODES OF PRACTICE

_______________________________________________________________

O P I N I O N _______________________________________________________________

1. W  e are asked to advise ontheEmployment Relations (Jersey) Law 2005("ERL"), and the fourdraft EmploymentRelationsCodes of Practice. TheERLwas approved on17May 2005 andisnowbefore the Privy Council. WhilePrivyCouncilapprovalisawaited,theEmploymentand Social Security Committee (the Committee)isconsulting on its proposed codesof practice. During the course of debateover the passing oftheERL, the TUWUmade several representations. Although some changes were made, the TGWU remains deeply concerned, and anemergencymotion criticising the law was carried on12 July 2005 bytheTGWTJ delegate conference.
2. T h e  ERL provides  a  system of legal  identification  and registration  of trade unions and employer associations, clarifies the legal status ofthesebodiesandcreates a legal dispute resolution process.The Codes ofpracticecover four aspects:recognition of trade unions, resolving collective disputes, balloting for industrial action and limitations on industrial action.
3. T h i s Opinion deals first with the compatibility oftheERL with Jersey's international obligations. We then consider further pointstobe raised during the consultation process on the Codes.

ERL and the ILO

4. T  h ere are several respects, in our opinion, in whichtheERLisnotcompatible with the ILO,namely, registration, the settlement of collective disputesand the right to strike. These are dealt with in turn.

Registration

5. R  eg istration under the ERL functions as a gateway to key statutory rights. Under Article 7, a trade union or an officer ormemberof a tradeunion shall not doany act in furtheranceof any purposeforwhich the union... is formed unless it is registered in accordance with this Law.' A trade union which is not registered is incapableofsuing in its own name (Article 16(4)). Nor does it have anyimmunities from tort law in relation to tradedisputesunlessit is registered. (Article20(1)), and the limitation ofdamagesin tort proceedings is only available to registered trade unions(Article 2 1(1)).
6. T h e decisionastowhetherto register a trade unionand whether to cancel the registration is made by a registrar appointedby the Employment and SocialCommittee (Article 8(1)), No provision is made to ensure the independence, impartiality or expertise ofthe registrar.
7. U  n der Article  10(1), the registrar is under a duty torefusetograntanapplicationfor the registration of a trade unionif any of the purposes of the unionisunlawful'. No further criteria are laid down as to what would constitute an unlawful purposeof a union,except that restraint of trade is expressly stated not to render the purpose unlawful (Article 17(1)).
8. T h e registrar also has powers to cancel the registration, either of his or her own motion or on the

application of any person with sufficient locus standi. Registration must be cancelled if any of the purposes of the

trade union are unlawful, and it may be cancelled if the registration has been obtained by fraud or mistake, if the union has failed to inform the registrar of any changes in the constitution, if it has ceased to exist, or if it has failed to comply with a prescribed requirement despite having had at least 21 days notice from the registrar (Article 14).

9. T h ereis no indication of whether the registrar makes this decision only on the basisof the express purposes of the unionas stated in its constitution, or by considering the constitution as a whole,orby considering whetheranypurposesmay be implied from the conductof the union.Thus a union with a history ofunlawfulconductperhaps fortified bypolicydecisions of its annual or (in the caseof the TGWU) its biennial delegate conference might find registration refused or cancelled. In the case of cancellation, given that the registration was originally granted, there is also a danger that activities subsequent to registration of the unionwillbetaken into account.
10. T h e only procedural safeguard is in the form of an appeal to the Royal Court(Article 15),whichmay confirm or reverse the decision. The nature of such anappealis undefined thus opening the possibility that the Royal Courtmayconsider that it may only reviewrather than rehear the case. If the former view is taken then the registrar'sdecisionmay only be overturned if it isthe product of an erroroflawor if it is so unreasonable that thecourtholds that no registrar properly directing himselfonthe law and the facts could have reached the decisionappealedagainst.
11. T h e registration provisions arehighly problematic because of the extentof discretion left in thehandsof the registrar, aggravated by the absence of procedural safeguards or guarantees of independence of objectivity. Thisis particularly so in determining whether the purposes of a trade union are unlawful. Most importantly, it iswell known from the experienceof the lawin the UK that a system whichbases the lawfulnessof strike actionon immunities from tort givesrise to a largenumberof uncertainties. The ERLdoesnotconferanypositiveright to strike. Instead it gives specific immunity to an act whichwould otherwise betortiousby reason of:aninducementof breach of contract, or a threat to induce a breach of contract if doneby a registered union in contemplationorfurtheranceofanemployment dispute (Article
    19. A unionmaynot appreciate that industrial action organised by it isunlawful until thematter has been determined by a court (e.g. – of dozensof examples – action against present employer to protect terms and conditions in the future in UCLH v UNISON[1999] ICR 204 CA; application ofnovel form of tor liability in the industrial context in Universe Tankships Inc of Monrovia v ITF[1982]ICR 262 HL). Th nature of the protection conferredby the proposed immunity is thus very weak indeed.
12. F u rthermore the circumstances in which the protection isconferredisyetweaker. It only applies to acts done "in contemplation or furtheranceofanemploymentdispute."Anemployment dispute iseitheran individual employment dispute as defined in Article 1(1) of theEmployment (Jersey) Law2003or a collective employmentdispute.
13. A n individualemployment dispute is defined by Article 1(1) of the Employment(Jersey) Law 2003 as:

    a d i s p u te b e tw  e en an employer or employers and an employee or employees in the employment of that

employer or employers which is connected with the terms of employment or with the conditions of labour of any of those employees or with the rights and duties of an employer or an employee under this Law but does not include a dispute as to the entering into, or the failure to enter into, a contract of employment with a person

T h a t Law covers various matters including unfair dismissal but it remains unclear as to whether a dispute

over the dismissal of an employee would constitute an individual employment dispute where issues of unfair dismissal have not arisen and where the real dispute might be better described as concerning the right of the employer to dismiss at all – a right which derives from contract and not statutory unfair dismissal. Accordingly it may be that a dispute such as that recently involving the union over the dismissal of members at Gate Gourmet would not constitute an individual employment dispute. Furthermore an individual employment dispute plainly excludes the hiring of new workers so that the original dispute at Gate Gourmet about the hiring of agency workers would certainly not qualify.

14. A dispute isonly collective under the ERL if, inter alia, a collective agreementexists betweenthe employer or employers and the trade union (Article 5). Curiously a collective agreement is defined (Article 1) as one between an employer or employers representative of a substantial proportion of employers in the tradeorindustryand"employeeswho are representative of a substantial proportion of the employees engaged in the trade orindustryconcerned." Thus anagreementbetweenanemployerand a tradeunion would appearnottobe a "collective agreement"under the proposed law! More significantly if the employeesdidnot represent a substantial proportion of those in the trade or industry an agreement would notcount as a collective agreement.Again therefore, it will beseen that the dispute with Gate Gourmet with whom there was a collective agreement but the employees represented only a tiny proportion ofthose involved in aircraft catering might well not qualify. Furthermore, the proposed law requires that the collective agreement "exists." Anemployercould easily deny a unionthe immunity for industrial action by terminating (in accordance with its terms or otherwise) all collective agreements with the union.It appears that ifthere is no collective agreementas defined, any industrial action would be unlawful unlessitcomeswithin the definition ofan individual employmentdispute.
15. A trade union might therefore run the risk of refusal or cancellation of registration if the registrar considers that its purposes include the taking of industrial action which is unlawful under these provisions. A unionwhich, for example,avowed a policy that it would take industrial action even where it had notachieved a collective agreementor one had been terminated might find its registration refused or cancelled on the basis that it hadanunlawful purpose. This is only oneexampleofthe extent of the registrar's discretion.
16. A ccording to the ILO Committee on Freedom of Association, Convention No. 87 on freedom of association is contravenedifworkers are required to obtain previous authorisation to establish their own organisations. Registration whichdependson meeting statutory conditions constitutes a requirement for previous authorisation, infringing the Convention(Case 1575).TheILOhas held that this couldoccur even inthecaseof a muchstronger provision, whereby registration of a trade unionmaybe refused if the unionTTabout to engage" in activities likely to cause a serious threat topublic safety orpublicorder. In such a case, the refusal to registershould only take placeunderthesupervisionof the competent judicial authorities where serious acts have been committed, and have been duly proven (see the Digest of

decisions and principles of the Committee on Freedom of Association, 3rd ed.  1985, para.  280). Th power of the registrar, who is by no means a competent judicial authority, to determine whether the

purposes of a trade union are lawful, clearly infringes these principles.

17. N o r isthe contravention cured bytheright of appeal. TheILO Committee has held that where a registrar has to form his ownjudgement as to whetherthe conditions for the registration of a trade union have been fulfilled, the existenceof a procedure of appeal to the courts is not a sufficient guarantee.In effect, this does notalter the nature of the powers conferred onthe authorities responsible for effecting registration, and the judges hearing such anappealwould only be able to ensure that the legislation has been correctly applied. TheCommitteehasdrawn attention to the desirability of defining clearly in the legislation the precise conditions whichtradeunions must fulfil in order to be entitled to registration and onthebasisof which the registrar may refuse orcancel registration, and of prescribing specific statutory criteria for the purpose ofdeciding whether such conditions are fulfilled ornot (See the Digestof1985, para. 277.)
18. In addition, the Committee hasemphasised that the cancellation of registration ofan organisation bythe registrar of trade unions is tantamount to the suspension or dissolution of that organisation by administrative authority. (Digest of 1985, para.489).
19. O p tional registration, whichcarries with it some benefits, is permissible,and the unionmay be required to fulfil certain formalitiesto register, provided these donotamountto previous authorisation (Digestof 1985, para. 283).However,it is plain that the form of registration required by Jersey laws is far from optional, since registration is a prerequisite forbasic rights, including the right to make contracts and engage in industrial action.

Resolution of Collective Employment Disputes

20. E R L provides for collective employmentdisputes to bebrought before the Jersey Employment Tribunal (JET) either with the consent of both parties,or by onepartyif all other available procedures have been applied unsuccessfullyand a party to the dispute is acting unreasonablyin the way in which that party is or is not complying with an available procedure.. Available procedures include procedures in a collective agreement, a relevantcontractofemployment or a relevanthandbook for employees,oranapprovedcode of practice or a procedure which is established with the relevant trade or industry (Article 22). The TGWUhas already madesubmissions that the inclusionin this list ofanemployer's handbook permits unilateral imposition of a procedure.
21. T h e tribunalmaymake a binding award with the consent of both parties,or a declaration that a party is not observing relevant terms and conditions, or as to the interpretation of any disputed terms and conditions of a collective agreement (Article 23). Generally, a declaration generally simplydeclares the law. In this case, however, it is expressly stated that the declaration willhave the effect of incorporating into individual contracts ofemploymenttheterms and conditions specified in the declaration, andthese remain until varied byagreementbetweenthe parties, bysubsequent declaration, oruntil different terms and conditions of employment are settled through the machinery for the settlement of terms and conditions in the relevant trade, industry orundertaking(Article 24).
22. T h e inclusion of the declaration as a remedy is an express responsetoearlier objections to the effect that that the collective dispute provisions amountedto unilateral binding arbitration. It was stated then that the use of the declaration removed this risk. We cannot agree. The JET can make a declaration which incorporates the JET's interpretation of the disputedtermsandconditions into the individual contracts of employment.This is still tantamount to binding arbitration. This is particularly problematic where a union has taken industrial action afteragreementcouldnotbe reached underoneofthenamedprocedures.In this circumstance,theemployer has thepower to refer the dispute to theJETon the grounds that the unionis acting unreasonablyasdefined;andJET has the powertoincorporate its interpretation of the terms andconditions into individual employees' contracts. Thisisclearly a case of unilateral binding arbitration.
23. T h e ILOcommitteeonFreedomofAssociationhas held that provisionswhich establish that, failing agreement between the parties, the points at issue in collective bargaining must be settled by the arbitration of the authority arenot in conformity with the principle of voluntary negotiation contained in Article 4 ofConventionNo. 98on the Rightto Organise and Collective Bargaining (See 259thReport Case No. 1450, para. 217.) In particular, a provision which permits either party unilaterally to request th intervention of the labour authority for the settlement of the dispute may effectively undermine the right of workerstocall a strike anddoesnot promote voluntary collective bargaining (See 265thReport,Cases Nos. 1478and 1484, para. 547.)

The Right to Strike

24. A s stated above,theERL has not given workers a positive rightto strike, but instead followed the British model of providing immunities from tortious action for acts in contemplation andfurtherance of a trade dispute. (Article 19).Moreover, a collective employment dispute is defined morenarrowly than in the UK in that it requires, among other things that a collective agreementmustexist between the employeror employers and the tradeunion (Article 5), leaving a gap in cases whereno collective agreementyet exists or whereonehas been terminated, In addition, unlike the British legislation, there is no express provision for thelawfulnessof picketing and no protection forworkersdismissedwhileon strike.
25. A l thoughthereisnoexpressrecognitionof the right to strike inILOConvention 87, the ILOCommittee of Expertshas held that the right to strike is one of the essential means through whichworkers and their organisations may promote anddefend their economic and social interests'. The International Covenant on EconomicSocialand Cultural Rights (ICESCR)ismoreexpress, with an explicit right to strike in Article  8. Referring to the UK provision ofimmunities rather than direct protection of the right, the Committee onEconomic,Social and Cultural Rights stated, in its reporton the UnitedKingdomin1997

(reiterated in its Report of 2002), that

    th e f a il u re to   i n c orporate the right to strike into domestic law constitutes a breach of Article  8 of the

Covenant. The committee considers that the common law approach recognizing only the freedom to strike, and the concept that strike action constitutes a fundamental breach of contract justifying dismissal, is not consistent with protection of the right to strike. ... Employees participating in a lawful strike should not ipso facto be regarded as having committed a breach of an employment contract.

26. T h e ERL does provide, in Article 18, that an employee is not liable indamages to his or her employer for a breachofcontract consisting of a cessation of work, a refusal to work, or a refusal towork in a manner lawfully requiredbyhisor her employerwhere this is incontemplationor furtherance ofanemployment dispute. However, Article 18(2) specifies that this does not affect any other right or remedy of the employer oranyother liability ofthe employee arising outof a breach of a contract ofemployment.One such implication is that the employee couldbe held tohavecommitted a fundamental breach ofcontract, justifying dismissalatcommon law. Moreover, the Employment(Jersey)Law2003containsnospecific protection against unfair dismissal during the courseoflawful industrial action, apart from the general protection for unfair dismissal. In the absence of such protection whilst the bringing ofan unfair dismissal claim by a striker is not debarred, it is alsooverwhelmingly likely to fail because the employer will assert that thedismissalwas justified bythestriker's conduct in wilfully refusing to carryout his obligations under the contract and/or in seeking to disrupt the employer's business (Ticehurst v British Telecommunications plc[1992] ICR 383 CA), thus amounting to a fundamental and repudiatory breach of contract or, atthe least, grossmisconduct.
27. T h e Freedom ofAssociation Committee of the ILO has stated unequivocally that no oneshouldbe penalised for carrying out or attempting to carry out a legitimate strike. (See 295th Report, Case No. 1755,para. 343.) Respectfor the principles of freedom of association requires that workersshould not bedismissedor refused re-employmenton account oftheirhaving participated in a strike or other industrial action. (See 277thReport,CaseNo. 1540,para. 90.) This is true too ofConventionNo. 98: ILO law clearly provides that thedismissalofworkersbecauseof a strike, whichis a legitimate trade union activity, constitutes serious discrimination inemploymentand is contrary to ConventionNo. 98. (See 239thReport, Case No. 1271, para. 274.)
28. IL O Conventionalsorequires that workers dismissed for taking part in a lawful strike shouldbe entitled to reinstatement if the dismissal is unfair. Although the 2003 law does not expressly preclude an application fordismissal by employeesdismissed due to industrial action, Article 76 only provides a remedyofcompensation and not reinstatement.
29. Em ployer inducement: Despite the finding bythe European Court ofHuman Rights in Wilson and Palmer v UK [2002] 1RLR 128, that UK law permitting an employer to make financial inducements to encourage employeesto give uptradeunionrepresentationwas a breach of Article 11of the European Convention on Human Rights and Fundamental Freedoms, there is no provision prohibiting such inducements in Jersey legislation.

The codes

30. P ro fessor Ewing has prepared a comprehensive and very usefulresponse to the consultation paperon the Codes. We donot propose to repeat thepointshe has made,since they speak for themselves, but instead to assess the current proposals on the codesin the lightof international law, and in particular, that of the ILO.

31.(i)  The status of the Codes: As a result of representations made by the TGV drawing on Professor Ewing's

submissions, the ERL was amended to give codes of practice the status of an Order in Council, or subordinate legislation, which means that they cannot come into force sooner than 28 days after the Order is before the States, which may annul it. Moreover, a code cannot be approved that contravenes an international obligation that is binding on Jersey. Before approving a code, the Committee must publish a notice inviting interested persons to inspect the proposals and to make representations, which must be

considered by the Committee when deciding whether or not to approve the code.

32. T h ese are welcome amendments. However, as well as giving the codes a more robust legal basis, the amendments have reinforced their function as integral to the operation of the legislation. Although failure to observe an approved code of practice does not in itself make a person liable to proceedings, immunities from liability are withdrawn if a code of practice provides for a holding of a ballot of members and the action is not taken in accordance with such a ballot. A trade union is also not protected from liability in tort for action that is defined in an approved code of practice as conduct that is not reasonable when taken in respect of an employment dispute. However, this reinforced function does not apply to recognition, which still cannot be enforced in a court of law. Although disputes can be referred to JACS, it only has power to make recommendations. And because a collective employment dispute requires a collective agreement to be in place, a dispute over recognition would not in itself be a collective dispute giving unions immunity against tortious action in respect of any industrial action taken to achieve recognition. This asymmetry within the legislation is of concern.

33.(ii)  Code  1: Recognition of trade  unions: ILO Conventions  require  that  where there is  a process  of

recognition, recognition be afforded to the most representative union (Digest of 1985, para.  617). At the same time 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 grievances. (See the Digest of 1985, para. 616.)

34. S o faras representativeness is concerned,ProfessorEwing'sopinion was that a unionshouldbe entitled to be recognised if it candemonstrate that 50% plus one of the employees in the bargaining unit are membersof the union,or if it can showin a ballot that 50% plus oneof the employees are in favourof

recognition. The Forum in its Report of 1st February 2005 partially accepts these figures, proposing, however that if the employer does not accept the union's estimate of its membership, or if membership is

below 50% plus one, then a ballot is necessary, and a ballot can only be held if at least 35% of the bargaining unit are in membership of the applicant union or would be willing to take up membership if recognition were granted. This is significantly higher than the figure in Britain, where a union is entitled to call for a ballot where 10% o the bargaining unit are in membership and there is other evidence indicating a majority would be likely to support recognition in a ballot.

35. P r ofessor Ewinghas detailed a number of concernsabout the processof achieving recognition, and in particular thesupervision of the process, the ballot andthe resolution of disputes. Alloftheseremainto be addressed,asdoes the proposed exemptionforsmallbusinesses,employing10orfeweremployees, which would have the effect of excluding 80%oftheIsland'semployers. In order to comply with ILO obligations, Jersey is required to encourage andpromote the full development' of collective bargaining. To exclude such a large proportion from the procedures would castdoubt on that policy. TheILO,as stated above,hasalso held that all unions should havetheright to makerepresentationsonbehalfof their membersand represent them in individual grievances. This entails that, at the very least, thereshouldbe a right to berepresented even in workplaces with 10orfeweremployees.

36.(iii) Code  2 Procedure for resolving disputes: The issue of binding arbitration has been dealt with above.

The further major difficulty is the definition of reasonableness for the purposes of the Code, particularly since a union may lose its registration and hence its immunities for actions in tort if it is acting unreasonably in its use of procedure and the Registrar considers that acting in that way was one of the union's purposes. The Code would need to provide very clear guidance as to what is reasonable and unreasonable in this respect.

37.(iii)  Code 3: Balloting on industrial action: The Forum suggest that the code should not be overly prescriptive so as to avoid conflicting with provisions in unions' own rule books. This is a welcome recognition of the importance of union autonomy. However, the major point of contention remains that of

notice before industrial action. The Code provides that employers should be given such notice as necessary to warn customers, ensure the health and safety of employees or the public or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision, It

gives, as an example, the number, category or workplace of the employees concerned. While the Forum suggests

that it would be reasonable to expect an employer to be provided with enough information to work out how the business will be affected, it is doubtful whether precise information as to the numbers, categories and workplaces of employees concerned is necessary to achieve that objective. Experience in England and Wales has shown in the last few years that allegations of inaccuracy in ballot notices is the principle ground on which injunctions are sought to restrain unions from industrial action. Thus earlier this year in an unreported decision (University of North London v NATFHE) an injunction was granted because though the union had specified the grade of every lecturer to be called out on a one day strike and identified the exact number and specified in relation to each which department or sub-department he or she worked in so that by consulting the timetable the University could ascertain every lecture which would not be given and the room in which it should have been delivered, the failure to identify at which site each lecturer had his or her desk was a breach of the requirement to specify workplaces.

38. P a rticularly serious is the link between the requirements for balloting and the retention of trade union immunity. Article  20(2)  of  ERL provides  that  an  immunity  is lost if  an approved code  of practice provides for the holding of a ballot and the ballot has not been held in accordance with the approved code, or a majority of those balloted do not support the industrial action. This means that even if a majority of those balloted support the action, a union could lose its immunity and a strike could become unlawful if even a small detail of the approved code has not been complied with. In particular, if a union does not give sufficient information to the employer to enable it to make plans to mitigate the effect of the strike, then even an overwhelming majority in favour of the action will not save it from unlawfulness. The experience in the UK bears ample testimony to the ability of employers to find breaches in the balloting provisions in British legislation and on the basis of this to gain an injunction or other remedy to prevent the strike.

39.(v)  Code  4 Limits on industrial action: This code deals with three proposed limits: essential services,

secondary action and picketing. Each is dealt with in turn.

40.(a) Essential services: The Forum has accepted that a code of practice is not an adequate basis to prohibit

strikes in essential services. It does not propose that essential services should be regulated by legislation either. Instead, it suggests that appropriate limitations on strikes in essential services should be reached through agreement with the relevant union. Professor Ewing suggested that the ILO definition of essential service should be used and this has been accepted.

41. Secondary Action:Thecodeof practice states that it wouldunreasonableto take industrial action in furtherance of a collective dispute inthefollowingcircumstances: (i) whereactionistakeninsupportof a 3rd party; (ii)whereemployeesare not directly involved; (iii) where the dispute is not with the same employer; (iv) where the employees are not at the sameplaceofworkofthose directly affected.The Forum suggested that all four couldbesummedupin a single definition ofsecondary action, namely wheretheemployees are not a party to the dispute.' Article 20(3)provides that an immunity is lost ifthe conduct of a trade unionis does notconformto the definition of in a code of practice of reasonable conduct when done in contemplationorfurtheranceofanemploymentdispute.Thussecondary action as here defined would render a strike unlawfuland expose the union to liability in tort.
42. T h e ILO has reiterated onnumerous occasions that workers should be able to take industrial action in relation to matters which affect them eventhough,incertain cases, the direct employer may not be party to thedispute,and that they should be able to participate in sympathy strikes provided the initial strike they are supporting is itself lawful.' (ILO Committeeof Experts, 2003). A ban onsecondary action is also in breach oftheEuropean Social Charter. Itisclear that the effective banonsecondary action, through the fact that it is classed as unreasonable behaviour and therefore has the effect of removing union immunities, isin breach ofJersey's international obligations. Thus a unionwhich had as a policy of upholdingJersey's international obligations by supportingsecondary action where the protection of the interests of its membersrequiredit might well find that its registration wouldbedeniedorremoved. This would appear to be,to say the least, inappropriate.
43. Picketing: The CodeofPractice provides that picketing is considered reasonable only whenitisoneof

the following: to peacefully obtain and communicate information; or to peacefully persuade a person to work or

not to work. The Code goes on to state that picketing in these two circumstances would be protected by immunities if all of those union members who are likely to be called to take part in the action have been balloted (in accordance with the code) and the majority of those are in favour of taking (or continuing) industrial action.

44. H owever, since, as mentioned above, there is no express provision in the ERL for picketing, the immunities mentioned are only for the torts specified in Article 19, namely inducement or threat of inducementof breach of contract. Thismeans that even if all the conditions are satisfied, namely the picket issupportedby a ballot and its aim is to peacefully persuade or communicateinformation,itcould still entail the commission of a civil wrong. Indeed the Code states expressly that picketing is not protected from civil suitssuchas obstruction of a path,road,entranceor exit to premises; interference (e.g. becauseofnoiseorcrowds) in the rights ofneighbouring properties (i.e. private nuisance)and trespassing on private property.' It might be very difficult to hold a picket without someobstructionof a path, road, entrance or exit to premisesandifthese are unlawfulunderJersey law, the unioncouldnot picket lawfully.Itisour view that to give no immunity from such liability runs theriskofbreaching the right to freedom of expression in Article 10 and/or freedom ofassembly in Article 11oftheEuropean Convention on Human Rights. It should be observed that in Canada the Supreme Court overturned Provincial legislation and legitimated secondary picketing in labourdisputeson the grounds that the legislation offended the Canadian Charter ofRightsandFreedoms in interfering with thefreedomof expression guaranteed by the Charter (in similar language to the European Convention): Pepsi-Cola Canada Beverages (West) Ltd R.W.D.S.U., v Local 558.[2002]SCC 8 (held: there was nothing illegal or unlawful about secondary picketing and to find otherwise would have been contrary to freedom of expression guaranteed by the Canadian Charter; therewasnolegalbasis consistent with freedom of expression to distinguish primary and secondary picketing: both wereexercisesin freedom ofexpression and both lawful, unless accompaniedby unlawful conduct).
45. S u ggestions that therightbe further restricted to theemployees'ownplaceofworkand to a maximum of six pickets receivedsome support, but the TGWU'ssubmission that it would be preferable to use a criterion ofpeacefulnessis noted by the Forum.It is not clear, however,whichapproachistobeused.

John Hendy QC Sandra Fredman Old Square Chambers, Gray's Inn,

London 22 September 2005

Form of Petition

To: H  is Excellency Air Chief Marshal Sir John Cheshire KBE, CB, Lieutenant-Governor To: S i r Philip Bailhache , Bailiff , President

To: t h e members of the States of Jersey

T h e h umble petition of the residents of the Island of Jersey

s h e w s  that  the  Employment  Relations  (Jersey)  Law  2005  and  the  Employment  (Jersey)  Law  2003

currently deny the employees of the Island the fundamental rights to recognition and representation and that the codes of practice, now out to consultation, may breach ILO Conventions 87 and 98.

A c c o rdingly your petitioners pray that the Employment and Social Security Committee acts to remedy

these faults and your petitioners as in duty bound will ever pray.

604 signatures