The UK Government is trying to implement a new anti-strike law following a wave of strike action in recent months by doctors, teachers, ambulance and train drivers. Do these proposed changes to UK legislation affect Jersey?
The Jersey context
Jersey is a distinct legal jurisdiction and employment and trade union (or employment relations) law matters are no exception to this. It is important to understand that our laws are not the same as those in the UK and our courts are not generally required to follow their decisions.
We came very late to the unfair dismissal and discrimination law "table". The combination of the Employment & Discrimination Tribunal and the Employment (Jersey) Law 2003 has been very successful in terms of giving the "man or woman on the street" a voice in workplace matters - as shown by the Tribunal reports and the numerous judgments under this law, which can be found on www.jerseylaw.je.
Jersey has had law governing industrial action for many years. When a review of legislation was undertaken at the end of the 1990s, with a view to new law being put in place which would put trade unions on a clearer legal footing, it was felt strongly that an adversarial approach should be discouraged and that:
"...negotiation, conciliation and arbitration...should be the primary means by which industrial relations problems and unrest should be addressed." (R.C.28/2002 Employment Relations Legislation Report.)
The title of the Employment Relations (Jersey) Law 2007 (the "ERL") reflects that wish for constructive dialogue, with a focus on openness and respect. Deliberate steps were taken to avoid a more complex legislative structure which had the potential to give rise to argument, rather than resolve it.
The ERL has been in force for 14 years but there are very few judgments under it. This is likely to be because most collective disputes (where trade union members come together and act collectively, in the interests of all of them as a group, as opposed to complaints by one individual) are resolved through negotiation rather than through the Tribunal or the Royal Court. This is what was intended and suggests that, so far at any rate, this law has served the Island well.
Employment relations and the Codes
The ERL is arguably a framework or enabling law. The "nuts and bolts" of Jersey's employment relations system are set out in separate Codes of Practice, made under the ERL, which can be found on the JACS website: www.jacs.org.je. The Codes contain information about:
- The recognition process for trade unions (you can't set yourself up as a trade union and demand that employers take certain steps without having gone through this process).
- How industrial disputes must be conducted, including in relation to the balloting or voting process.
- Steps to be followed by the parties when collective disputes occur.
The Codes do not have the same status as written laws. A breach of the Codes does not, of itself, render the person in the wrong liable to legal action. However the Codes must be followed by trade unions and their members. As long as the Codes are followed a trade union cannot be sued, for encouraging its members to strike for example - action which might otherwise give rise to a claim from an employer against the union for inducing staff to breach their contracts of employment.
Where there is a dispute which is subject to the Codes and someone has not complied with the applicable provision:
- Evidence about that breach can be relied on in any legal proceedings; and
- If a trade union has not followed the correct process it could be sued.
Essential services agreements
UK strikes have shown that collective action can bring everyday existence almost to a standstill, at vast public expense and disruption. Could strikes in Jersey endanger public wellbeing?
The Codes contain a specific provision on "Action in Essential Services". This includes the following wording:
"While a union is entitled to organise action in protection of the interests of its members, in a modern employment relations system, it is recognised that such action:
- Should be a last resort.
- Should only be undertaken with the support of the employees involved.
- Should only be taken after appropriate notice has been given to the employer.
- Should not be targeted at employers who are not parties to the disput.
- Should not place members of the community at risk or cause serious disruption to the provision of essential services".
"Where a particular service is essential to the well-being of the community, it would be unreasonable for the trade union to fail to reach an agreement with the employer that action will not be taken by key personnel in, for example, the emergency services, utilities and health sector. This would apply if any action would seriously interrupt such a service, endangering the life, personal safety or health of the whole or part of the population; or where the extent and duration of the action might be such as to result in an acute national crisis endangering the normal living conditions of the population; and in services of fundamental importance.
A small Island community such as Jersey may have services that in certain circumstances are considered more essential to the population than they would be in a larger jurisdiction. For example, a stoppage in transport links [eg a ferry strike which prevented food being brought into the Island] could be detrimental to the health and safety of the population if services were interrupted for a prolonged period of time."
Accordingly, under the Codes there is an obligation on unions representing workers who provide such services to enter into "Essential Services Agreements" with employers. These agreements will set out matters including:
- The minimum level of services which must continue to be provided in the event of strike action.
- The mechanisms for addressing disputes which arise in these areas.
It can be seen from the above (and perhaps from the limited strike action in Jersey over the past decades) that we already have systems in place which deal with some of the current concerns in the UK.
As Constable Andy Jehan said on 12 January 2023 in relation to the 7.9% pay increase agreed for civil service workers.
"There's a balance between how much we offer because affordability is really key but also we respect the work that our staff do - we've got a lot of staff working for us in a whole range of businesses.
"Often you don't see them but they keep the island running so it's important that we recognise their efforts and try to meet that balance between affordability and looking after our staff and retaining staff."
While Jersey is very wealthy it is home to considerable inequality, which looks set to worsen with huge increases in the cost of living. The need for workers to have a voice has perhaps never been as important as now. The situation here is different from the UK but, as there, employers and employees are "in a relationship of interdependence" (2002 Report). We must continue to work collectively: united we stand, divided we fall.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.