Observation (CEACR) - adopted 2018, published 108th ILC session (2019)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Jersey

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comments, the Committee had noted that pursuant to sections 77B and 77C of the Employment (Amendment No. 4) (Jersey) Law, 2009, while the Tribunal can issue an order of reinstatement in the post or a similar post, it does not have the power to compensate an employee for financial losses such as arrears of pay for the period between the dismissal and the order for reinstatement. The Committee had invited the Government to pursue dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by order of the judicial authority would be granted full compensation for loss of pay.

The Committee notes that the Government states once again that: (i) since the Employment Law came into force in 2005 there have been no Tribunal complaints of anti-union dismissal, therefore no orders for reinstatement resulting from anti-union dismissal have been issued; and (ii) the review of the award-making powers of the Employment and Discrimination Tribunal could be envisaged in the future. The Committee reiterates that in cases of reinstatement following an anti-union dismissal, remedies for loss of wages for the period that elapses between dismissal and the reinstatement, as well as compensation for the prejudice suffered, with a view to ensuring that all of these measures taken together constitute a sufficiently dissuasive sanction, as “adequate protection” under Article 1(1) of the Convention. The Committee recalls that sanctions against acts of anti-union discrimination must be to compensate fully, both in financial and in occupational terms, the prejudice suffered (see 2012 General Survey on the fundamental Conventions, paragraph 193). The Committee therefore requests once again the Government to enter into dialogue with the social partners in order to ensure that in cases of anti-union dismissals, workers reinstated by order of a judicial decision may be granted full compensation for loss of pay. The Committee requests the Government to provide information of any developments in this regard.

Article 2. Adequate protection against acts of interference. In its previous comments, the Committee had noted that there were no specific provisions protecting against acts of interference in the Employment (Jersey) Law (EL) or the Employment Relation Law (ERL), but that it was the Minister’s intention via the ERL to prohibit employers from “buying out” employees’ rights in respect of union activities by inducing employees not to join a workers’ organization, or to relinquish membership of such an organization. While noting the Government’s indications on the focus given for now to the preparation of a new legislation to provide protection against several grounds of discrimination, the Committee notes with regret that there have been no further developments to date with respect to the protection against acts of interference. The Committee therefore requests once again the Government to take, after consulting the social partners, the necessary measures to introduce provisions prohibiting acts of interference by employers or their organizations in the establishment, functioning or administration of workers’ organizations and vice versa as well as provisions ensuring rapid procedures and sufficiently dissuasive sanctions against such acts. The Committee requests the Government to provide information of any developments in this regard.

Article 4. Promotion of collective bargaining. Legislative matters. In its previous comments, the Committee had requested the Government to take the necessary action to amend Code of practice 1 with respect to the recognition of trade unions in order to guarantee the right to collective bargaining when no union represents the majority of employees in a bargaining unit. The Committee notes with regret the Government’s indication that, to date, there have been no further developments in this respect. Recalling that the determination of the threshold of representativeness to designate an exclusive agent for the purpose of negotiating collective agreements applicable to all workers in a sector or establishment is compatible with the Convention in so far as the required conditions do not constitute an obstacle to the promotion of free and voluntary collective bargaining in practice, the Committee requests the Government to take, after consulting the social partners, the necessary measures to ensure that if no union reaches the required threshold to be recognized as a bargaining agent, unions should be given the possibility to negotiate, jointly or separately, at least on behalf of their own members. The Committee requests the Government to provide information of any developments in this regard.

Promotion of collective bargaining in practice. The Committee requests the Government to provide information on the number of collective agreements concluded and in force in the country, the sectors concerned and the number of workers covered by these agreements.