Observación (CEACR) - Adopción: 2010, Publicación: 100ª reunión CIT (2011)

The Committee notes that the Government indicates in its report that consultation on a number of the issues raised by the Committee in its previous observation is pending and a review of the Employment Relation Law (ERL) and its codes of practice will be undertaken as soon as resources allow it. The Committee hopes that the Government will be in a position to indicate in its next report progress made with regard to reviewing the provisions of the ERL and the accompanying draft codes of practice and trusts that in this process due account will be taken of its previous comments concerning the ERL and its codes of practice, which read as follows.

Article 3 of the Convention. Right of organizations to organize their activities and formulate their programmes. The Committee had noted that under article 19 of the ERL, a strike is immune from tort only if it takes place in the framework of an “employment dispute”; according to article 20(3) of the ERL, immunity is lost if the conduct of a trade union does not conform to the definition of “reasonable conduct” when done in contemplation or furtherance of a dispute; the definition of “reasonable conduct” is found in code 2 which provides that it would be unreasonable conduct for a union to call upon employees to take part in secondary action. The Committee had recalled that a general prohibition of sympathy strikes could lead to abuse and workers should be able to take such action where the initial strike they are supporting is itself lawful (General Survey of 1994 on freedom of association and collective bargaining, paragraph 168). The Committee also noted that the right to strike should not be limited solely to industrial disputes that are likely to be resolved through the signing of a collective agreement and that workers’ organizations should, in principle, be able to use strike action to support their position in the search for solutions to problems posed by members and on workers in general, in particular as regards employment, social protection and the standard of living. The Committee therefore requests the Government to indicate in its next report the measures taken or contemplated to ensure that secondary action and social and economic protest action are protected under the law.

The Committee had furthermore noted that code 2 provides that there is no immunity from tort for picketing or calling upon employees to picket a place of work other than that of the employees, as well as for interference (e.g. because of noise or crowds) in the rights of neighbouring properties (i.e. private nuisance) and for trespassing on private property. The Committee is of the view that picketing in support of secondary action should be possible and that restrictions on strike pickets should be limited to cases where the action ceases to be peaceful (General Survey, op. cit., paragraph 174). The Committee therefore requests the Government to indicate the measures taken or contemplated to ensure that pickets in support of secondary action is possible and that limitations on strike pickets apply only where the action ceases to be peaceful.

The Committee had noted that an “employment dispute” can be according to article 1(1) of the ERL, either individual or collective; a collective employment dispute is defined in article 5 of the ERL as one taking place where a collective agreement already exists. According to Unite, this provision allows the employer to deny union immunity for industrial action simply by terminating the collective agreement; furthermore, in case of a recognition dispute where no collective agreement exists, the conditions allowing for strikes to be staged are met under article 5 of the ERL only where the employer employs more than 21 employees; thus, according to comments made by Unite, industrial action to further a recognition claim in small establishments is not immune from action in tort. The Committee requests the Government to provide its observations on the comments made by Unite and to indicate in its next report the measures taken to ensure that the conditions for protected industrial action are not such as to render such action virtually impossible, especially in relation to recognition disputes in small establishments.

The Committee had observed that articles 22 and 24 of the ERL provide that in the absence of the parties’ consent to the terms of a binding award, the Jersey Employment Tribunal (JET) can issue a declaration which is de facto and de jure integrated in individual contracts of employment and is therefore tantamount to binding arbitration. Code 3 contains similar provisions. The Committee had recalled that compulsory arbitration seriously limits the means available to trade unions to further and defend the interests of their members as well as their right to organize their activities and to formulate their programmes and is not compatible with Article 3 of Convention No. 87 (General Survey, op. cit., paragraph 153). The Committee requests the Government to indicate the measures taken or contemplated to ensure that compulsory arbitration is only possible in the case of essential services in the strict sense of the term, public servants exercising authority in the name of the State or where both parties agree to binding arbitration.

The Committee had noted that code 2 provides that “a small island community such as Jersey may have services which are considered essential to society which are different to those in the mainland United Kingdom, for example, a stoppage in transport links services would cause greater difficulties and inconveniences that are detrimental to the population”. The Committee had recalled that transportation is not an essential service in the strict sense of the term where strikes may be prohibited; however, in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, the authorities could establish a system of negotiated minimum service in services which are of public utility rather than impose an outright ban on strikes (General Survey, op. cit., paragraph 160). The Committee therefore requests the Government to indicate the measures taken or contemplated to amend code 2 so as to ensure that transportation is not included among essential services, taking account of the possibility of introducing a negotiated minimum service.

The Committee had noted that article 3 of the ERL and code 2 contain a requirement of notice prior to industrial action; the notice should contain such information as to help the employer make plans to enable it to advise its customers of the possibility of disruption, so that they can make alternative arrangements or to take steps to ensure the health and safety of the employees, or the public, or to safeguard equipment which might otherwise suffer damage from being shut down or left without supervision. While noting that the obligation to give prior notice before calling a strike is in line with the Convention, the Committee also noted the comments by Unite according to which in one English case, an injunction was granted by the court to stop an industrial action because the union had failed to identify the specific site where each lecturer on strike had their desk, despite the fact that the union had specified the exact number of lecturers, the grade of every lecturer, and the department or sub-department in which they worked; Unite emphasized that there is no explicit provision to ensure that there is no obligation to name employees who participate in a strike and to confine the information to be provided only to that which is in the union’s possession. The Committee requests the Government to provide its observations on the comments made by Unite and to indicate any judicial decisions relevant to the application by the courts of articles 3 and 20(2) of the ERL as well as code 3.

The Committee finally recalls the conclusions and recommendations reached on the ERL and its accompanying codes by the Committee on Freedom of Association in Case No. 2473 (349th Report, paragraphs 261–278).