Employment legislation - petition (P.214-2005) – comments – addendum

STATES OF JERSEY

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EMPLOYMENT LEGISLATION: PETITION (P.214/2005) – COMMENTS – ADDENDUM

Presented to the States on 21st March 2006 by the Minister for Social Security

STATES GREFFE

ADDENDUM TO THE SOCIAL SECURITY MINISTER'S COMMENT ON DEPUTY SOUTHERN'S "EMPLOYMENT LEGISLATION: PETITION" (P.214/2005)

Introduction

Deputy Southern 's proposition asked the previous Employment and Social Security Committee to review the employment legislation 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.

The report which accompanies the petition leaves the arguments to an appended Opinion, submitted by John Hendy and Sandra Fredman, as the basis for the request. It  cites a considerable amount of material beyond the scope of Conventions 87 and 98, all of which had to investigated to give proper consideration to the opinion.

Outcome of Review

As the Hendy/Fredman Opinion ranged quite widely, a thorough review has been conducted and a detailed response to the points made in that Opinion has been prepared. Members will see from the position set out in Appendix  1 that there is nothing of consequence to be concerned about, or that justifies a further review.

The Hendy/Fredman Opinion refers to the lack of unfair dismissal protection for workers who take industrial action (point 44). The authors of that Opinion have not been aware that additional provisions were always intended  to  be  inserted  in  the  Employment  Law  once  the  appropriate  definitions  were  available  via  the Employment Relations Law, and in fact the report accompanying the Employment Law stated as much.

An amendment to the Employment Law (provided in the Schedule to the draft Employment Relations Law) will provide automatic protection against unfair dismissal for employees taking action in contemplation or furtherance of an employment dispute, irrespective of length of service or age.

The equivalent U.K. provisions are more restrictive than ours in that there is a time limit on the protection against dismissal, previously 8  weeks and extended in 2005 to 12  weeks, after which the automatic protection agains unfair dismissal is lost.

Amendments lodged

Members will be aware that Deputy Southern has also proposed amendments, one to the Employment Law (P.270/2005) and one to the draft Employment Relations Law (P.5/2006).

As  neither  the  Petition  nor  the  appended  Hendy/Fredman  Opinion  suggest  that  any  other  amendments  are necessary, I can only presume that the amendments seen as desirable by the Deputy are those dealt with in the two Propositions, and these will be debated at our next two Sittings.

Context

The previous Committee had been researching the matter of employment relations legislation since 2001. Having looked at systems in other small jurisdictions, such as the Isle of Man, Northern Ireland, and Prince Edward Island, not just the U.K., it is my belief that we have prepared a law that is suitable for a small jurisdiction like Jersey.

Each jurisdiction sets a legal framework which is geared to the needs of its own industrial relations traditions and practices, for example, some outlaw strikes for the duration of a collective agreement. The draft Employment Relations Law reflects Jersey's experiences and needs, reconciling the freedoms of individuals and employers, with the freedoms of unions.

The aim is to create a modern law, based on a non-adversarial approach of negotiation and conciliation, seeking to

create more harmonious relationships at work, and building on the success of the 1956 Industrial Disputes Law. The framework of the draft Employment Relations Law provides –

• c l ea r definitions and a simple process for the registration of employer and employee associations, and trade unions;

• a d i s pute resolution process, avoiding excessive litigation;

• l e g a l backing to codes of practice that set out reasonable employment practice, the latest draft of which has been prepared on the basis of consultation responses and is attached at Appendix 2 for

information.

Conclusion

On the basis of the position set out in Appendix  1, it is my belief that the Laws and the Codes achieve the right balance. A thorough review of all pending legislation has been carried out and, as such, it is not considered necessary to undertake a further review.

Response to the Hendy/Fredman Opinion as appended to the Proposition Employment Legislation: Petition (P.214/2005)

1. T h e  Proposition  asks  the  Employment and  Social  Security Committee to review the Employment Relations (Jersey) Law 2005, the Employment (Jersey) Law 2003 and the draft Codes of Practice inorder "to identify if there are any provisions which deny employees the fundamental rights to recognitionand representation, or that maybreach International LabourOrganisationConventions87and98", and to take the necessary steps to remedy the situation if any such provisions are identified.
2. T h e reportwhichaccompanies the Proposition is very brief. It begins by saying that thedetailedobjections and reservations expressed byTrade Union representatives are laid out in the accompanyingsubmission by John Hendy  Q.C.Thedocumentwhichis appended is a joint Opinion by Mr. Hendy and Professo Sandra Fredman.
3. T  h e Proposition doesnot identify in terms the source of the "fundamentalrights to recognitionand representation". The reportsets out an extract from the EmploymentandSocial Security Committee's consultation documentof July 2001,which set out a Charter ofBasicTradeUnionRights in Jersey and goes onto say that it is the belief of the employees' representatives in Jersey that the EmploymentLaws and Codesof Practice as currently drafted breach this Charter.The Charter is a policy document,not a Law, noran International Convention. Its interpretation and implementation is thus obviously a matter of interpretation.
4. E m  ployers have rightsaswell, and it is not onlythe International LabourOrganisationConventionswhich are of relevance in this matter. A pointwhich has notbeenaddressed in theProposition, the report, or the Hendy/Fredman Opinion is that the legislation and the Codes affect employers as well as employeesand trades unions.Employershave certain rights under the European ConventiononHumanRights,andin enacting employment legislation it is importantto bear thoserights in mindandtoensure that they are not breached.
5. T  h e report which accompanies the Proposition referred to Mr. Hendy as one ofthe U.K.'s foremost EmploymentLaw specialists. Mr. Hendy is the joint secretary ofthe United Campaign for the Repealof the Anti-TradeLaws,and Professor Fredmanis an academictenant of the same chambers asMr. Hendy. It isfair to say that they are both committed supporters of trades unions'viewsand interests.
6. T h e  Hendy/Fredman opinion refers  without  particular  distinction to  the  ILO (International Labour Organisation). It maybe helpful to set out a brief summaryoftheILO structure. The opinion also refers to extracts from the Digestwithout explaining their status or significance. Similarly, it maybe useful to include a note on theDigests.

The ILO organs

7. T h e re are three bodieswithintheILOwhichhavecompetenceto hear complaints alleging infringements of trade union rights:

(i ) t h e Committee on Freedom of Association, set up by the Governing Body of the ILO; (i i) th e Governing Body itself;

(i ii ) t h e Fact-finding and Conciliation Commission on Freedom of Association.

8. T  h e Committee on Freedom ofAssociation("theCommittee") is responsibleforconsideringwhether complaints are worthy of examination by the Governing Body of the ILO. When it decides that a

complaint is well-founded, the Committee "recommends" that Governing Body endorse its report and conclusions

and indicates that the Government concerned should be invited to state what action it has taken on the recommendation made. Where the Governing Body acts on the Committee's recommendation the ILO's Committee of Experts then investigates whether the Government has taken appropriate action. A variety of processes may be instigated in the case of non-compliance including, occasionally, referral to the Fact finding and Conciliation Committee.

9. B  re ach of an ILO Convention to which a state is a party entitles the Governing Bodyto invite the Governmentoftheoffending state "to make such statementonthe subject asitmaythinkfit": see Article 24 oftheILO Constitution.
10. T h e Committee's role is not confined strictly to consideration of breaches of the ILO Conventions relating to freedomof association. It extends alsoto cases affecting ILOmatterswhich concern "freedom of association" in a widersense. The ILO website records that:

" B y m  em  b e rship of the International Labour Organisation, each member is bound to respect a certain number of principles, including the principles of freedom of association".

11. T h e Committee's first report states:

" T h e f u n c ti o n of the ILO in regard to trade union rights is to contribute to the effectiveness of the general principle of freedom of association as one of the primary safeguards of peace and social justice".

The Digests

12. In 1985 the Committeepublished a Digestof its decisions. A 1996 Digestupdatedthe1985 Digest. The Digests do not consist ofcasesummariesbut rather of rules or principles ofgeneralapplicationwhich have been abstracted from the cases. Despite the generalised nature ofthesestatements the introductionto the 1985Digest specifically stressestheimportance of context in stating:

" It is a p p ro p riate to note that the decisions of the Committee have been taken in the light of the special circumstances prevailing in each case and accordingly they should be considered within the context in which they appear.  However, when examining a case, the Committee usually makes reference to decisions which it has taken or mentioned previously when it has been faced with circumstances similar to those in the case under examination, so that a certain continuity as regards the criteria employed by it in reaching its conclusions can be maintained".

13. T h us whilst statements in the Digest are authoritative asto:

(a ) th e effect of the particular Convention under consideration; and

( b ) th e general principles concerning freedom of association which it regards as "customary rules

above the Conventions",

it m  a y be important to examine the context of the case from which the principle derives. Registration

14. T h e Hendy/FredmanOpinion states at paragraphs 5 to 19 that "[r]egistration whichdependsonmeeting statutory  conditions  constitutes a  requirement  for previous  authorisation,  infringing  the [ILO] Convention". The implication that the existence of statutory conditions for registration necessarily entails infringement is ill-founded. Paragraph259ofthe1996Digest states:

"2 5 9 .  If the conditions for the granting of registration are tantamount to obtaining previous authorisation from the public authorities for the establishment or functioning of a trade union, this would

undeniably constitute an infringement of Convention no.  87.This, however, would not seem to be the case when

the registration of trade unions consists solely of a formality where the conditions are not such as to impair the guarantees laid down by the Convention" (emphasis added).

P a ra g raph 260 then goes on to note that although a registration procedure "very often consists in a mere

formality" there are some countries:

" In w h i c h t h e law confers on the relevant authorities more or less discretionary powers in deciding whether or not an organization meets all the conditions required for registration, thus creating a situation which is similar to that in which a previous authorisation is required. Similar situations can arise where a complicated and lengthy registration procedure exists, or where the competent administrative authorities may exercise their powers with great latitude".

15. T h us, the existence of statutory conditions does not in itself constitute a "requirement for previous authorisation" infringing theConvention.The nature of the conditions has to beexamined.Are they a formality ordo they impair the guarantees laid downbytheConvention? The registration conditionsin the Employment Relations Law are essentially formal. They are not suchastoimpair any Convention guarantee.
16. C a se 1575 (cited at para.16 oftheHendy/Fredman Opinion) is not inconsistent with these views. Central complaints in that case were that Zambian legislation gave the Minister and Labour Commissioner "unwarranted discretionary power" over thebasic right to organise:

(i ) b y giving discretion to the Minister to lay down statutory conditions for registration (which he had

used to lay down minimum membership requirements); and

(i i ) b y empowering the Commissioner to refuse registration if he considered the union incapable of

implementing its principal objectives and to cancel registration if the Commissioner considered that the union had ceased to pursue those objectives (see para. 847).

17. I n  upholding the  complaint the  Committee concerned itself  with  the  content  and  operation of the registration schemeandnot with the mere existence of registration conditions. Itreasoned that "some of the requirements are indeedextremely difficult to fulfil, suchastheminimummembershipthresholdof 100  members" (para.901). TheCommitteewas not saying that every statutory condition would amountto an infringement.
18. A t paragraph 11of the Hendy/FredmanOpinionit is suggested that the registration powers"arehighly problematic because of the extentof discretion left in thehandsofthe Registrar, aggravated by the absence of procedural safeguards or guarantees of independence or objectivity." This is difficult to understand. The Registrar hasnotbeengiven a significant discretion. A requirement ofindependenceor objectivity doesnot need tobe made express in the statute in ordertocomply with ILO principles.No explanation has been given, and itis not readily apparent, what "proceduralsafeguards" are thought to be lacking.

The strike immunity point

19. A n additional strand ofobjection to the Employment Relations Law is indicated in the second half of paragraph  11oftheHendy/Fredman Opinion and in paras12 to 14.Itis there suggested that bybasing the lawfulness  of strike  action  on  immunities (rather  than  conferring  a  positive  right  to  strike)  the EmploymentRelationsLawgivesriseto a largenumberof "uncertainties". It is said this may cause difficulty in determining whether the purposes of theunion are lawful and reference is made to English law.
20. T h is calls forth the  following  observations.  First,  English law is  based on  providing a  system of immunities rather than a positive right to strike. (Theseimmunities are in certainrespects similar tothose in the EmploymentRelationsLawas indicated below.)Secondly, it isnotobviouswhy a schemebased

on immunities should be intrinsically less certain than a scheme based on a right to strike which must inevitably

become qualified by definitions and limitations. Either approach will give rise to issues of interpretation. The differences in juridical structure probably represent little more than a difference in legal tradition between the common law and continental (codified) traditions. Thirdly, no examples of U.K. case law have been cited in the Hendy/Fredman Opinion and we have traced none where it has been alleged that the  purposes of an independent trade union with a standard  constitution/rule book might be illegal because of complications or ambiguities surrounding the extent of legal protection of strike action. It would  be  considered  unusual  for  a  trade  union's  constitution  or  rule  book  to  specify  the  precise circumstances in which strike action or other industrial action would be taken.

21. I t is certainly true that in the U.K. there have been many circumstances in which strike action for

particular purposes has been held to fall outside the scope of the immunities for the time being in force[1]. The  Gate  Gourmet  dispute  referred  to  at  paragraph  13  of  the  Hendy/Fredman  Opinion  involved

unballotted strike action, the consequent dismissals of strikers and subsequent picketing. The picketing became the subject of a reported case on specific points as to picketing: Gate Gourmet London Limited - v- TGWU [2005] 1889 (QB). There is no suggestion that the dispute raised any previously unforeseen issue about the scope of the immunities. In University College London Hospitals NHS Trust -v- UNISON [1999] ICR 204, to which the Hendy/Fredman Opinion also refers, industrial action about:

(i ) t e rm  s and conditions of individuals who had never been employed by the strikers' employer; and (i i) th e prospective employment of current staff by an unidentified future employer,

w a s h eld to be unprotected by the immunities. Similarly, in Universe Tankships Inc. of Monrovia -v- ITF

[1982] ICR 262 industrial action to secure payment by employers to the union's welfare fund was not found to be protected. It has also been acknowledged in Universe Tankships and other cases that legal wrongs may be committed by the organisers of industrial action which are not within the categories of tort to which the immunities apply. These points do not appear to have any bearing on whether registration arrangements comply with ILO principles.

22. In paragraph 17 of the Hendy/FredmanOpinion, it is stated that the"contravention" is notcuredby the right of appeal. As will beclear from the foregoing, the Minister has been advised that there is no contravention, andhe does not believe that there is. Be that asitmay,andfor the sake ofcompleteness, it is right to refer membersto the appeal provisions. They are to be found in Article  15of the Employment Relations Law,where it is stated that the persons specified inparagraph (1) have"a right ofappeal". Paragraph  (2) fixes the timescale for appealing, and paragraph  (3) says that on hearing the appeal, th Royal Court "may confirm or reverse the decisionof the Registrarandmay make such orderas it thinks fit astothe cost of the appeal." This differs from the form in which a statutory rightofappealisgivenby some  Jersey statutes,  where it is  said that  a  party may appeal on the  ground that  the  decision  is unreasonable in the circumstancesof the case. Where thegroundis specified in that way,the Court is restricted in the extent to which it can set aside the decision which is the subject of the appeal, butwhere a statute simply provides that a party may appeal, and does not stipulate anyspecificground, the Court's role is muchwider,see Mesch -v- Housing Committee 1990JLR 269. Thestatementinparagraph 10 of the Hendy/FredmanOpinion that there is a possibility that the Royal Court mayconsider that it mayonly review rather than re-hear the case, is thus not supported by local caselaw.

Similarity and divergence of U.K. law and Jersey law on immunities

23. T h ere is a fundamental similarity between the EmploymentRelationsLaw and the English statutory schemenow contained in the Trade Union andLabour Relations (Consolidation) Act 1992 as amended ("the U.K.1992Act"). Article  19oftheEmploymentRelationsLaw starts by establishing a general immunity for acts done by a person "in contemplation or furtherance ofanemploymentdispute" in respect ofcertain economic torts, including importantly inducing breach of contract. Section  219 of the U.K.1992 Act contains very similarly wordedimmunities for acts done "in contemplation or furtherance

of a trade[2] dispute". Section  219 includes a special protection for picketing which does not appear in the

Jersey law.

24. A r ticle 20 of the Jersey law then "withdraws" the immunitywhere:

(i ) t h e union is not registered;

(i i) a b allot has not been held in accordance with an approved code of practice;

(i ii ) t h e Trade Union has been guilty of conduct which is not reasonable conduct under the terms of an

approved code of practice.

It i s a t this point that divergence between U.K. and Jersey law becomes greater.

25. U n der the U.K. 1992 Actimmunity is "withdrawn":

(a ) in a series of specific cases (broadly where the tortious act is to enforce union membership or is a response to dismissals for taking "unofficial" industrial action or amounts to a secondary action

which  is  not  lawful  picketing,  or  is  done  by  way  of  pressure  to  impose  union  recognition

requirements[3]),

(b ) w h ere the act is done by a Trade Union[4] if the detailed balloting requirements (under sections

226 to 234) have not been satisfied.

26. U . K. statutory law does not seek to distinguish between "reasonable" and "unreasonable" conduct in the context of a tradedispute,although:

(a ) th e re are Codes of Practice (most significantly in the area of picketing) which can be taken into

account for various statutory purposes;

(b ) so m  e features of the Jersey Code of Practice (for example on pickets and secondary action) reflect

elements of the U.K. statutory provisions about immunities, but the English statutory provisions are much more elaborate;

( c ) t h e reasonableness of particular behaviour can occasionally influence the construction of the

highly technical provisions about immunities and balloting.

Jurisdiction of the Jersey Employment Tribunal

27. A t paragraph 23 of theHendy/FredmanOpinion it isconcluded that the powerof the Jersey Employment Tribunal ("JET") to issue a binding declaration asto the meaning of termsandconditionsofemployment amounts oris "tantamount" to binding arbitration and therefore is (at least) atriskof infringing Article 4 of Convention no. 98.
28. A r ticle 4 ofILOConventionno.98 provides:

" M  ea s u r e s a ppropriate to national conditions shall be taken, where necessary, to encourage and promote the full development and utilisation of machinery for voluntary negotiation between employers or employers organisations and workers organisations, with a view to regulation of terms and conditions of employment by means of collective agreements".

29. C a se 1450 (againstPeru)concerned a system ofcompulsory arbitration byan administrative authority (the Ministry ofLabour)whichextendedtothe fixing ofconditionswhichhad not been agreed by the collective parties. This was foundtobe an infringementofthe Convention. The Committee stressed that under Article  4"the determination of the bargaining level is essentially a matter tobeleft to the discretion

of the parties and ... the level of negotiation should not be imposed by law"[5]. Similarly, in cases 1478

and 1484 (also against Peru) a statutory prohibition on striking after a dispute had been submitted by one party to

the administrative labour authority was held contrary to the Convention. It was found objectionable that "one of the parties may undermine collective bargaining by unilaterally entrusting the settlement of the dispute to the labour authority, thereby suspending the right to strike" (paragraph  547).

30. T h e 1996Digest states atpara. 518:

" p ro v i s io n s which establish that, failing agreement between the parties, the points at issue must be settled by arbitration by the labour authorities do not conform to the principle of voluntary negotiation contained in Article 4 of Convention no. 98

A p r o v i si o n which permits either party unilaterally to request the intervention of the labour

authority to resolve a dispute may effectively undermine the right of workers to call a strike and does not promote voluntarily collective bargaining

T h e C  o m m  it tee considers that a system of compulsory arbitration through the labour authorities,

if a dispute is not settled by other means, can result in a considerable restriction of the right of workers organizations to organize their activities and may even involve an absolute prohibition of strikes, contrary to the principles of freedom of association" (emphasis added).

31. T h e followingpoints are significant. First, asconfirmedby the quotations from the Digest, the ILO's concern  has hitherto  been  with  compulsory arbitration  by administrative authorities,  not judicial authorities suchas the Jersey Employment Tribunal ("JET").
32. S e condly, it is significant that thepowerof the JET does not extend to fixing the amountofwagesorthe content of othertermswhich have notbeen agreed in collective bargaining. Itis the fixing oftermswhich have not been agreedin collective bargaining, (rather than the interpretation oftermswhich had been agreed orthemakingofother legal rulings)which infringes thecase law and guidance on Article 4 cited above.  The Hendy/Fredman Opinion  suggests that  the  JET's ability  to make a  declaration "which incorporates the JET's interpretation of the disputedtermsandconditions into the individual contracts of employment" is "still tantamounttobindingarbitration". This seemsuntenable.Although the powerto deem collectively agreedterms to betermsof the individual employment contracts goes further than a normal judicial  role,  since the JET  would not be altering the content of the collectively bargained arrangements it would notbe interfering with the substanceof the collective bargaining process.Itisalso significant that a term incorporated by virtue of a declaration can be varied bythe parties: see Article  24

(1)(a) and (b) of the Employment Relations Law. This is a further feature which points against any infringement.

Right to strike (Paras. 24 to 28 of the Hendy/Fredman Opinion)

33. A l though the ILO Conventiondoesnotprovide a "right to strike" as such, the 1996 Digest, forexample, records:

" T h e C  o m m  ittee has always recognised the right to strike by workers and their organisations as a legitimate means of defending their economic and social interests".

34. T h e International CovenantonEconomic, Social and Cultural Rightsdoes provide for a right "to strike" but this is subject to the express proviso "that itis exercised in conformity with the laws of the particular country" (see Article  8(1)(d)).
35. I t is  also notable that  the protection  of freedom  of  assembly and  association  under the European Convention onHuman Rights does not embody a right to strike assuch.Under Article  11 a right to strike is said to be "one of the mostimportant ... means" of an effective enjoymentofTrade Union rights "but there areothers". It isnotanindispensable right: see Schmidt and Dahlstrom -v- Sweden(1978-79) 1 EHRR 632. InUNISON -v-U.K. 53574/99 (10thJanuary 2002) theCourt stated:

" T h e C o u r t recalls that while Article 11(1) includes trade union freedom as a specific aspect of freedom of association this provision does not secure any particular treatment of trade union members by the state. There is no express inclusion of a right to strike or an obligation on employers to engage in collective bargaining. At most Article 11(1) may be regarded as safeguarding the freedom of trade unions to protect the occupational interests of their members. While the ability to strike represents one of the most important means by which trade unions could fulfil this function, there are others. Furthermore contracting states are left with a choice of means how the freedom of trade unions ought to be safeguarded . . ."

36. T h e ILO position appearsto be that workersshouldnotbedismissed or refused re-employmentonthe grounds ofhaving participated inwhatcase 1540(National Union of SeamenandGreat Britain) describes as a "legitimate" strike.
37. I t hasproved impossible to trace the basis for the assertion in paragraph 28 of the Hendy/Fredman Opinion that the ILO Conventionrequires that workers dismissed for taking part in a lawful strike should be entitled to reinstatement if the dismissal is unfair.
38. T h ere are some general observationswhich should bemadebefore dealing with some specific points whichhavebeen raised.
39. F irst, the shape and extent ofthe "right tostrike"under ILO principles remains to bemapped out bycase law. Itseemsprematuretoembark upon amendments to the legislation to deal with what some may perceive aspossibledefects,whenif challenged and litigated at such some future state, thecourt might hold that they were not defects at all. The fact, however, that the juridical basis of the protective legislation is expressed in termsof immunity rather than as a statementofright subject to limitations is unlikely to be determinative. The ILO would be concerned with substance rather than form.
40. O b jection is raised in paragraph 26of the Hendy/Fredman Opinion to the fact that the Employment (Jersey) Law 2003 containsno special protection against unfair dismissal during lawful industrial action (although the bringing of an unfair dismissal claim by a striker is not debarred). The writers argue,in effect, that unless the dismissal of strikers is deemed unfair, an unfair dismissal claim would be "overwhelmingly likely to fail" because "the employer will assert that the dismissal was justified by the striker's refusing to carry out his obligations under the contract and/or in seeking to disrupt the employer'sbusiness". The authors cite Ticehurst-v- British Telecommunications plc [1992] ICR 383.
41. In Ticehurst managers took part in industrial action bywithdrawalofgoodwill and participating in a half day strike. On returning from the strike the managerswere asked to give an undertaking to work in accordance with the terms of their employment.Onconsecutivedays they were turned back from workby their employer when they refused to give the required undertakings.Their claims forwages in respect of days when they hadbeenturnedbackwere ultimately unsuccessful. The Court ofAppeal held that they had breached the implied term of fidelity in their contracts of employment by participating in the concerted withdrawalofgoodwill.
42. T ic ehurst isnot an unfair dismissalcasebut does illustrate that even industrial action short of a strike may constitute a breach of the contract ofemploymentandthusmisconductwhich is capable ofgivingriseto a fair dismissal.
43. T h is does notmean that the Hendy/FredmanOpinionis correct in its implication that under English law the breach of contractimplicit in (at least most forms of) industrial action will "almost inevitably" lead to a finding offairnesswhere a participant in industrial action is dismissed. The extent of guidance on this issue in English case law is limited because mostcases of unfair dismissal and industrial actionhavebeen concerned with preliminaryand jurisdictional questions arising under the U.K. provisions, asamended from time to time; butit is clear that the questionunder section 98 of the EmploymentRightsAct1996 whether the employer acted reasonably in treating the employer's conduct as sufficient to justify dismissal (whichhas to bedetermined in accordance with equity and the substantial merits of the case,in common with the similarly worded Jersey provision) does both in principle andin practice permit a

finding of unfairness, where the employee is guilty of "misconduct" in particular:

(a ) w h ere the employer failed to follow its procedures or to conduct reasonable investigations; (b ) w h ere there has been inconsistent treatment of employees in comparable circumstances;

(c ) w h ere the decision is unreasonably harsh or is for any other reason outside the range of options

open to a reasonable employer.

T h e possibility of unfairness on any of these bases can certainly apply to dismissal for participation in

industrial action.

44. I t maybe the case that theILOwouldregard the absence ofmore specific protection foremployees dismissed whilst taking industrial action as aninfringementof its Conventionsor principles. Suchan argument, however, can alsobemade against U.K.lawwhich, as amended:

(i ) p e r mits (very broadly speaking) dismissals of participants in official industrial action which has

continued for more than a protected period (broadly 12 weeks); and

(i i) p ro vides a wide immunity for employers when the industrial action is unofficial (i.e. not supported

by the Union).[6]

45. In the UnitedKingdom reinstatement is a remedywhich a Tribunal is technically requiredtoconsider

after every finding of unfair dismissal[7]. I have been advised that in practice it is very rarely sought by claimants and only awarded in a tiny minority of cases. It is particularly unusual for reinstatement orders

to be made where there has been industrial strife because one of the matters which the Court is directed to consider in deciding on remedy is the "practicability" of reinstatement. A reinstatement order does not have the affect of an injunction; non-compliance by the employer merely entails additional compensation.

Recognition of Trade Unions. Code 1

46. T h e Hendy/FredmanOpinion states at paras33-35 that the ILO Conventions "require that the processof recognition beafforded to the mostrepresentativeunion". Paragraph 617 of the 1985 Digestiscited.
47. P a ragraph 617 does not itself distinguish between "representative" and "most representative" unions. It states:

" E m p l o y e r s including governmental authorities in the capacity of employers, should recognise for collective bargaining purposes the organisations representative of the workers employed by them".

H o w e ver, paragraph 617 of the same Digest does provide that:

" w h e r e t h e l aw of a country draws a distinction between the most representative trade union and other trade unions, such a system should not have the effect of preventing minority unions from functioning and at least having the right to make representations on behalf of their members and to represent them in cases of individual grievance".

T h e p robable implication of the two paragraphs read together is that the duty to recognise does apply to

the most representative union.

48. T h ere is, however,nothingto indicate that a rule requiring 35% of the bargaining unit to bemembersof the applicant union (or likely members if recognition was granted[8]) before a ballot is required is

incompatible with ILO conventions and principles.

Code 3

49. A t paragraph 37 of the Hendy/Fredman Opinion doubt is expressed as to whether requiring precise information as to thenumbers categories andworkplaces of employeesis necessary to achieve the stated objective ofenablingtheemployerto understand how the workplacewouldbe affected.
50. It is certainly a causeoffrequentcomplaintbyunions that the ballot notices they are requiredto give underU.K. legislation are unnecessarily specific. The University ofLondon -v- NATFHEcaseisnot reported and has proved impossible to trace. It is clearly notnotoriousasan illustration of any perceived defects in theU.K. legislation orforany other reason.

The statutory requirement to give notice in the United Kingdom

51. A m  ongst the instances inwhich immunity is forfeited by tradeunions calling for industrial action are:

(i ) w  h ere the union fails to inform the employer of the ballot (not less than seven days before it is to

take place) or to supply a sample ballot paper; see s.226A of the Trade Union and Labour Relations (Consolidation) Act 1992 ("the 1992 Act");

(i i) w h ere the union fails to inform the employer of a ballot result under s.231A of the 1992 Act; or

(i ii ) w  here the union fails to give the employer notice of the industrial action itself under s.234A of the

1992 Act.

52. T h e notice unders.226A must contain detailed information in particular as to the categories ofemployee and workplaces affected. (This is the subject ofrecentamendments.)
53. S e ction 231A imposes a requirementon the unionto take such steps as are reasonably necessary to ensure that the employers of individuals entitled to vote are informed of the ballot result.
54. S e ction234A(also recently amended)contains very detailed provisions, recentlyamended,asto the notice of industrial action whichmustbegiven.Theprincipal elements are:

(i ) t h e notice must be given not earlier than the day when the union notifies the employer of the ballot

result but not less than seven days before the first day of industrial action;

(i i) th e notice must state whether the industrial action is to be continuous or discontinuous; (i ii ) t h e notice must state that it is given for the purposes of the section;

(i v ) t h e notice must provide detail as to the number of affected employees, the categories of employee

to which they belong and the workplaces at which they work.

Balloting requirements in the U.K.

55. I m munityis lost where a tradeunion calls for industrial action withoutcomplying with the balloting requirements. The balloting requirements are exceptionally detailed. They are set out in ss.226 – 234 of the U.K. 1992 Actand include the notice requirements described above.
56. T h e bare bonesofthe balloting provisions are as follows. A tradeunionmust give atleastseven days notice to the employer that the ballotis to beheld.Itmustappoint an independent scrutineer. Entitlement to vote in the ballot must begiven equally to all membersoftheunionwhom it is reasonable atthe time of the ballot to believe will beaskedto participate. The voting paper(ofwhichtheemployer must be provided with a sample)mustbe in a specified form and contain specified questions. Those participating in the ballot mustbe allowed to dosowithout interference or cost. Theremustbe a majority vote in favour of the action. Circumstances in whichseparate ballots forseparategroups are prescribed.The

ballot result must be announced as soon as reasonably practicable and employers informed. A scrutineer's report

must be produced containing specified information. The call to industrial action must come from a specified person in the union and must not take place outside a specified timescale. Employers must then be given notice of the industrial action which has been called.

57. W  hilst there isprovision s.232B for certain "small accidental failures" to bedisregarded, it has certainly been  common since  these detailed  provisions were introduced  for  trade unions  to fall  foul  of the technicalities with result that injunctions have been granted requiringthecalls for industrial action to be rescinded. Thetechnical issues are exceptionally complicated.This does not mean that technical issues must bemade equally complicated inJersey.

Code 4

58. A t paragraph 42oftheHendy/FredmanOpinion it issuggested that the exclusion ofclassesofwhatmight loosely  be described  as secondary action  constitutes  a  breach  of  Jersey's international  obligations. Reference is made, however,to the European Social Charter. This does not apply to Jersey. In anyevent Article  6 ofthe Charter, which deals with the effective exercise of the right to bargain collectively, does not give any specific indication asto what if any forms of "secondary" action would fall within its reach.
59. It h asnot proved possible to trace a 2003sourcefor the quotationinparagraph 42 of the Hendy/Fredman Opinion  from  the  ILO  Committee  of Experts  but a  2005 statement refers  to "previous comments" concerning what it describes as:

" th e ri g h t o f workers to take industrial action in relation to matters which affect them even though, in certain cases, the direct employer may not be party to the dispute, and to participate in sympathy strikes provided the initial strike they are supporting is lawful".

60. T h is does not appear to provide unambiguoussupport for the proposition that any restriction on the ability to strike lawfullywillinfringeILO principles where the dispute is with a different employer or the action is to support a thirdparty.
61. I n general (with the important exception of peaceful picketing) "secondary" action falls outside the protection oftheimmunitiesunderU.K.law.Thus if a blanket exclusion from protection where the affected employeeswork at a different placeor are not personally involved would be likely to infringe ILO principles, at least insome circumstances, U.K. law itself wouldfail to reflect ILO principles by the general exclusionofsecondary action from thescopeofprotection.
62. T h e right to freedom of expression conferredby Article  10 oftheECHR is subjecttothe qualification which, so faras it is relevant, provides that the exerciseof the rightmaybe subject to suchformalities, conditions, restrictions or penalties as are prescribed by law and necessary in a democratic society for, inter alia, the protection of the reputation or rights of others. Article  11, which confers the right of freedom of assembly and association, goes ontosay that no restrictions shallbe placed ontheexerciseof these freedomsother than as are prescribed by law and are necessaryin a democratic society for, inter alia, the protection oftherightsandfreedomsof others.
63. T h e owner of neighbouringproperty is entitled under Article  1 ofProtocol 1 of the ECHRto peacefu enjoymentof that property.That is a right which the state shouldprotect,and if, as is arguedby the authors ofthe Opinion, the failure to protect picketing from civil suits isan interference with the rightof the unionsandtheirmembers to freedom of expression and/or freedom ofassembly, that interference is prescribed byLaw and is necessaryfor the protection of the rights of the neighbouring property owners.

Secondary picketing

64. T h e Hendy/FredmanOpinion does not deal with the ILO principles in relation to pickets.The 1996 Digest states (at para.  583) that the action of pickets organisedinaccordance with the law shouldnotbe subject to interference bythe public authorities; that the prohibition of strike pickets is justified only if the

strike ceases to be peaceful (para.  584); and that taking part in picketing and firmly and peacefully inciting other

workers to keep away from their workplace should not be unlawful. Significantly paragraph 587 provides:

" T h e re q u i re ment that strike pickets can only be set up near an enterprise does not infringe the principles of freedom of association".

65. M uchwasmadeintheHendy/Fredman Opinion ofthe Canadian caseofPepsi-ColaCanadaBeverages (West) Limited -v- RWDSU,Local558SCC. 8.The Canadian Supreme Court wasconcerned with a Saskatchewan dispute. Saskatchewan had not imposed any statutory restriction on picketing. The Supreme Court made it clear that the mainissuein the appeal wasthe legality ofsecondary picketing at commonlaw.TheSupremeCourt held that secondary picketing was notunlawfulin itself. It is clear that the Courtwas influenced by the principle of freedom of expression enshrined in the Canadian Charter. Its conclusion was that it wasnotnecessarytorecognisesecondary picketing as tortious in itself because there wereother torts, includingtrespass and nuisance, whichprovided sufficient protection. The Court reviewedtheposition by asking:

" w h a t i s ca u ght by the rule that all picketing is legal, absent, tortious or criminal conduct. The answer is, a great deal. Picketing which breaches the criminal law or one of the specific torts like trespass, nuisance, intimidation, defamation or misrepresentation will be impermissible regardless of where it occurs. Specific torts known to the law will catch most of the situations which are liable to take place in a labour dispute. In particular the breadth of the torts of nuisance and defamation should permit control of most coercive picketing. Known torts will also protect property interests. They will not allow for intimidation, they will protect free access to private premises and thereby protect the right to use one's property. Finally, rights arising out of contracts or business relationships also receive basic protection through the tort of inducing breach of contract".

66. T h us:

( a) th e Canadian Supreme Court was not overturning provincial legislation as the Hendy/Fredman

Opinion indicates but declaring the common law in the absence of provincial legislation;

( b ) th e Court's interpretation of the common law position recognised that secondary action would

often be tortious and, therefore, unlawful – not least where it amounted to trespass or nuisance.

67. I n short, the case does not appear to support the view that secondary picketing is recognised as a constitutional rightinCanadaor that, in the absenceof statutory provisions, there wouldbe any defence at all inCanadawheresecondary picketing entails the commissionof a tort.

Employment Relations Codes of Practice – Draft 2 Contents

Code 1 – Recognition of trade unions

Seeking trade union recognition

Collective bargaining

The bargaining unit

The process of seeking recognition

Derecognition

Changing a recognition agreement

Re applying for recognition or derecognition Disputes about recognition or derecognition

Joint union applications and other inter-union issues Existing Recognition agreements

Code 2 – Resolving Collective Disputes

Dispute resolution procedures

Code 3 – Conduct of ballots

What is industrial action? Balloting on industrial action

Code 4 – Limitations on Industrial Action

Essential services Secondary Action Picketing

Code 1 – Recognition of trade unions Seeking trade union recognition

Recognition of one or more trade unions occurs when an employer accepts a trade union as entitled to act on behalf of a group (or groups) of employees for specified purposes. Recognition can take a number of forms, but is usually associated with an employer's agreement to participate in collective bargaining with one or more trade unions and provides the basis for changes to be made to terms and conditions of employment.

The United Nations Universal Declaration of Human Rights, Article  23(4), states that"everyone has the right to form and to join trade unions for the protection of his interests."

When recognition is sought, it is important for each party to:

1 .  e n te r into voluntary resolution of issues

2 .  r e sp ect the independence of the other

3 .  b e p repared to consult

4 .  b e p repared to negotiate in good faith

5 .  l is t en to, take account of, and respond to the other's case

6 .  m  ai ntain adequate records to show that the above processes have been undertaken.

Collective bargaining

The premise of collective bargaining is that it should take place in good faith.

Collective bargaining is a process of conducting negotiations about specified matters, usually about wages or physical  working  conditions  and  other  terms  and  conditions  of  employment,  between  an  employer  and representatives of a trade union, with a view to reaching agreement. The scope of collective bargaining is normally specified by the parties in an agreement on recognition and covers negotiations about pay, hours and holidays.