Employment
Relations (Jersey) Law 2007
A LAW to provide for the registration
of trade unions and employers’ associations; to make provision as to the legal
status, including the obligations and immunities, of trade unions and
employers’ associations, and their officials and members; to provide for the
resolution of collective employment disputes between employers and employees so
as to promote the development of good working relationships between them; and
for related purposes.
Adopted
by the States 17th May 2005
Sanctioned by
Order of Her Majesty in Council 14th December 2006
Registered by the Royal Court 5th January 2007
THE STATES, subject to the sanction of Her Most Excellent Majesty in Council, have
adopted the following Law –
Part 1
INTRODUCTION
1 Interpretation
In this Law, unless the context otherwise
requires –
“approved code of practice” means a code of practice that is approved by an Order made by the
Employment and Social Security Committee in accordance with Article 25;
“collective agreement” means an agreement that has been settled by machinery of
negotiation, mediation, conciliation or arbitration to which the parties
are –
(a) an employer, or an
organization of employers that is representative of a substantial proportion of
the employers engaged in the trade or industry concerned; and
(b) employees who are
representative of a substantial proportion of the employees engaged in the
trade or industry concerned;
“Committee” means the Employment and Social Security Committee;
“constitution” means the rules constituting a trade union or employers’
association and providing for its management, however those rules are
described;
“employment dispute” means –
(a) a collective employment
dispute; or
(b) an individual
employment dispute as defined in Article 1(1) of the Employment (Jersey)
Law 2003[1];
“Employment Forum” has the same meaning as it has in the Employment (Jersey)
Law 2003;
“Jersey Employment Tribunal” and “Tribunal” mean the Jersey Employment Tribunal established by
Article 81 of the Employment (Jersey) Law 2003;
“prescribed” means prescribed by Regulations;
“register”,
when used as a noun, means the register of trade unions or the register of
employers’ associations (as the case requires) established and maintained under
Article 8(2) by the registrar;
“register”
when used as a verb, means to register under Article 10(3);
“registrar” means the registrar of trade unions and employers’ associations
appointed under Article 8(1);
“Regulations” mean Regulations made under this Law.
2 “Employer” and “employee”
(1) In this Law –
(a) “employer” means a
person who employs another person; and
(b) “employee” means a
person who is employed by an employer.
(2) For the purposes of
paragraph (1), a person is employed by another person if the first person
works for the second person under a contract of service or apprenticeship with
the second person.
(3) For the purposes of
paragraph (1), a person is also employed by another person if the first
person enters into any other contract with the second person under which –
(a) the first person undertakes to do, or to perform personally, work or
services for the second person; and
(b) the status of the second person is not
that of a client or customer of any profession or trade or business undertaking
that is carried on by the first person.
(4) It is immaterial
whether a contract to which paragraph (2) or paragraph (3) refers is
express or implied.
(5) If the contract is
express, it is immaterial whether it is oral or in writing.
3 “Trade union”
(1) In this Law, “trade
union” means an organization that is described in paragraph (2) or in
paragraph (3).
(2) An organization is a trade union if –
(a) it consists wholly or mainly of employees of one or more
descriptions; and
(b) its principal purposes include the regulation of relations between
employees of that description or of those descriptions and employers or
employers’ associations.
(3) An organization is also a trade union if it consists wholly or
mainly of –
(a) constituent or affiliated organizations that fulfil the
conditions in paragraph (2), or that themselves consist wholly or mainly
of constituent or affiliated organizations that fulfil those conditions; or
(b) representatives of any such constituent or affiliated
organizations,
and its principal purposes
include the regulation of relations between employees and employers or between
employees and employers’ associations, or the regulation of relations between
its constituent or affiliated organizations.
(4) It is immaterial whether an organization described in
paragraph (2) or in paragraph (3) is temporary or permanent.
4 “Employers’ association”
(1) In this Law, “employers’ association” means an organization that is described in
paragraph (2) or in paragraph (3).
(2) An organization is an employers’ association if –
(a) it consists wholly or mainly of employers or individual owners
of undertakings of one or more descriptions; and
(b) its principal purposes include the regulation of relations
between employers of that description or of those descriptions and employees or
trade unions.
(3) An organization is also an employers’ association if it consists
wholly or mainly of –
(a) constituent or affiliated organizations that fulfil the
conditions in paragraph (a), or that themselves consist wholly or mainly
of constituent or affiliated organizations that fulfil those conditions; or
(b) representatives of any such constituent or affiliated
organizations,
and its principal purposes
include the regulation of relations between employers and employees or between
employers and trade unions, or the regulation of relations between its
constituent or affiliated organizations.
(4) It is immaterial whether an organization described in paragraph (2)
or in paragraph (3) is temporary or permanent.
(5) References in this Law to employers’ associations include
combinations of employers and employers’ associations.
5 “Collective employment dispute”
(1) In this Law, “collective employment dispute” means a dispute between one or more employers and one or more
employees, where –
(a) the employee or employees concerned are represented by a trade
union;
(b) a collective agreement exists between the employer or employers
and the trade union; and
(c) the dispute relates
wholly or mainly to one or more of the matters described in paragraph (2).
(2) The matters to which this paragraph refers are –
(a) the terms of employment of one or more employees;
(b) the conditions in which one or more employees are required to
work;
(c) the engagement or non-engagement of one or more persons as
employees, or the termination or suspension of employment of one or more
employees;
(d) the termination or suspension of the duties of employment of one
or more employees;
(e) the allocation of work or the duties of employment as between
employees or as between groups of employees;
(f) matters of discipline or grievance;
(g) the membership or non-membership of a trade union on the part of
one or more employees;
(h) facilities for officials of trade unions; and
(i) an issue as to whether or not an approved code of practice is
being observed by one or more employers or by one or more employees.
(3) A dispute between a Committee of the States and any one or more
employees shall, notwithstanding that the Committee is not the employer of
those employees, be treated for the purposes of this Law as a dispute between
an employer and those employees if the dispute relates –
(a) to matters that have been referred for consideration by a joint
body on which, by virtue of any provision made by or under any enactment, that
Committee is represented; or
(b) to matters that cannot be settled without that Committee
exercising a power conferred on it by or under any enactment.
(4) It is immaterial that a
dispute relates to matters occurring outside Jersey
if a person or persons whose actions in Jersey
are said to be in contemplation or in furtherance of the dispute is or are
likely to be affected in respect of any matter specified in paragraph (2)
by the outcome of the dispute.
(5) A dispute to which a
trade union is a party shall be treated for the purposes of this Law as a
dispute to which employees are parties.
(6) A dispute to which an
employers’ association is a party shall be treated for the purposes of this Law
as a dispute to which employers are parties.
6 Forms of applications
(1) If the form of an
application under this Law is prescribed, the application must be made in that
form.
(2) If the form of an
application under this Law is not prescribed, the Committee shall approve the
form in which the application may be made.
(3) If the form of an application
under this Law is approved under paragraph (2), the application must be
made in that form.
(4) The registrar shall
make copies of forms of application under this Law available to applicants on
request.
PART 2
REGISTRATION OF TRADE UNIONS AND EMPLOYERS’
ASSOCIATIONS
7 Organizations to be registered
(1) A trade union or
employers’ association shall not do any act in furtherance of any purpose for
which the union or association is formed unless it is registered in accordance
with this Law.
(2) A person who is an
officer or member of a trade union or employers’ association shall not do any
act in furtherance of any purpose for which the union or association is formed
unless it is registered in accordance with this Law.
8 Registers
(1) The Committee shall
appoint a person as the registrar of trade unions and employers’ associations.
(2) The registrar shall
establish and maintain –
(a) a register of trade
unions; and
(b) a register of
employers’ associations.
(3) The register of trade
unions shall contain, in respect of each registered trade union, the following
information –
(a) the name of the union;
(b) the address of the
union;
(c) the name of each person
who is an officer of the union;
(d) a copy of the union’s
constitution;
(e) such other information
as may be prescribed.
(4) The register of
employers’ associations shall contain, in respect of each registered employers’
association, the following information –
(a) the name of the
association;
(b) the address of the
association;
(c) the name of each person
who is an officer of the association;
(d) a copy of the
association’s constitution;
(e) such other information
as may be prescribed.
(5) The registers shall be
available for public inspection during normal working hours, free of charge, at
the office of the registrar.
9 Application for registration
(1) An application for the
registration of a trade union or employees’ association must comply with this
Article.
(2) The application may be
made by, but only by –
(a) at least 7 members of
the trade union or employers’ association; or
(b) an officer of the union
or association.
(3) A person may only be an
applicant if he or she is authorized by the trade union or employers’
association to make the application.
(4) If the application is
for the registration of a trade union, it shall contain the information
specified in Article 8(3).
(5) If the application is
for the registration of an employers’ association, it shall contain the
information specified in Article 8(4).
(6) The application shall
be accompanied by a copy of the constitution of the trade union or employers’
association, and the copy shall be verified by each applicant.
(7) If an application fee
is prescribed, the application shall be accompanied by that fee.
10 Determination of application
(1) The registrar shall
refuse to grant an application for the registration of a trade union or
employers’ association if, but only if –
(a) any of the purposes of
the union or association is unlawful;
(b) the application is not
made in accordance with this Law; or
(c) the name of the union
or association is the same as the name by which any other union or association
is registered, or so nearly resembles such a name as to be likely to mislead
any person.
(2) If the registrar
refuses to grant an application for the registration of a trade union or
employers’ association, the registrar shall give each applicant notice in
writing of that decision and of the reasons for the decision.
(3) Unless the registrar is
required by paragraph (1) to refuse to grant an application for the
registration of a trade union or employers’ association, he or she shall –
(a) grant the application;
(b) register the union or
association in the appropriate register; and
(c) issue to the applicant
or applicants a certificate of registration in the prescribed form.
11 Amendment of register
(1) If in respect of a
registered trade union or registered employers’ association there is any
change –
(a) in any information that
is required, by paragraph (3) or paragraph (4) of Article 8, to
be contained in the register; or
(b) in the constitution of
the union or association,
an application must be made within one month of that change, to the
registrar, to amend the register accordingly.
(2) The application shall
be made by a member or officer of the trade union or employers’ association.
(3) A person may only be an
applicant if he or she is authorized by the trade union or employers’
association to make the application.
(4) If the application is
made in respect of a change in the constitution of the trade union or
employers’ association, it shall be accompanied by a copy of the constitution
as so changed, and the copy shall be verified by the applicant.
(5) If an application fee
is prescribed, the application shall be accompanied by that fee.
12 Determination of application
(1) The registrar shall
refuse to grant an application for the amendment of the register in respect of
a trade union or employers’ association if, but only if –
(a) the effect of the
amendment would be that any of the purposes of the union or association are
unlawful;
(b) the application is not
made in accordance with this Law; or
(c) the effect of the
amendment would be that the name of the union or association is the same as the
name by which any other union or association is registered, or would so nearly
resemble such a name as to be likely to mislead any person.
(2) If the registrar
refuses to grant an application for the amendment of the register in respect of
a trade union or employers’ association, the registrar shall give the union or
association notice in writing of that decision and of the reasons for the
decision.
(3) Unless the registrar is
required by paragraph (1) to refuse an application to amend the register
in respect of a trade union or employers’ association, he or she shall –
(a) grant the application;
(b) amend the register
accordingly; and
(c) if the amendment is
such as to make it appropriate to amend the certificate of registration, issue
to the union or association an amended certificate of registration accordingly.
13 Cancellation of registration on
application of union or association
(1) On the application of a
member or officer of a trade union or employers’ association, the registrar may
cancel its registration.
(2) A person may only be an
applicant if he or she is authorized by the trade union or employers’
association to make the application.
(3) If an application fee
is prescribed, the application shall be accompanied by that fee.
(4) If the registrar grants
the application, he or she shall give the applicant notice in writing of the
registrar’s decision.
(5) If the registrar
refuses to grant the application, he or she shall give the trade union or
employers’ association notice in writing of that decision and of the reasons
for the decision.
14 Cancellation of registration on other
grounds
(1) The registrar shall
cancel the registration of a trade union or employers association if any of its
purposes are unlawful.
(2) The registrar may
cancel the registration of a trade union or employers’ association on any of
the following grounds –
(a) if its registration has
been obtained by fraud or mistake;
(b) if it has contravened
Article 11(1);
(c) if, after the registrar
has given it not less than 21 days notice in writing to comply with a
prescribed requirement, the union or association has failed to comply with that
requirement; or
(d) if it has ceased to
exist.
(3) The registrar may under
paragraph (2) cancel the registration of a trade union or employers’
association of his or her own motion or on the application of any person having
sufficient locus standi.
(4) However, before
cancelling the registration of a trade union or employers’ association under
paragraph (1), or under paragraph (2) on a ground specified in any of
sub-paragraphs (a), (b) and (c) of that paragraph, the registrar
shall –
(a) give the union or
association notice in writing of his or her proposal to do so; and
(b) afford it a reasonable
opportunity to be heard on the matter.
(5) If (having complied
with paragraph (4)) the registrar decides under paragraph (1) to cancel the
registration of a trade union or employers’ association or decides under any of
sub-paragraphs (a), (b) and (c) of paragraph (2) –
(a) to cancel the
registration of a union or association; or
(b) to refuse to grant an application
to cancel its registration,
the registrar shall give the union or the association notice in
writing of that decision and of the reasons for the decision.
(6) If the registrar
decides under any of sub-paragraphs (a), (b) and (c) of paragraph (2)
to grant or refuse to grant an application to cancel the registration of a
trade union or employers’ association, the registrar shall also give the
applicant notice in writing of that decision and of the reasons for the
decision.
(7) A cancellation of the
registration of a trade union or employer’s association –
(a) under paragraph (1); or
(b) under any of
sub-paragraphs (a), (b) and (c) of paragraph (2),
shall not have effect until the expiry of the period of 21 days
following the day on which the registrar gives the union or association notice
in writing of the decision to cancel its registration.
(8) If a notice of an
appeal against the cancellation of the registration of the trade union or
employer’s association is given within that period of 21 days, the
cancellation shall not in any event have effect until the appeal is disposed
of.
15 Appeals
(1) The following persons
and bodies shall have a right of appeal under this Law to the Royal Court –
(a) any applicant for the
registration of a trade union or employers’ association, against a refusal by
the registrar under Article 10(1) to grant the application;
(b) a union or association,
against a refusal by the registrar under Article 12(1) to grant an
application for the amendment of the register in respect of the union or
association;
(c) a union or association,
against a refusal by the registrar under Article 13(1) to grant an
application under that paragraph to cancel the registration of the union or
association;
(d) a union or association,
against a decision by the registrar under either of paragraphs (1) and (2) of
Article 14 to cancel its registration; and
(e) an applicant under
Article 14(3) for the cancellation of the registration of a union or
association, against a refusal by the registrar under Article 14(2) to
grant the application.
(2) An appeal under this
Article shall be brought within 21 days after the person or body who has the
right of appeal is given notice in writing by the registrar of the decision to
which the appeal relates.
(3) On hearing the appeal,
the Royal Court
may confirm or reverse the decision of the registrar and may make such order as
it thinks fit as to the costs of the appeal.
PART 3
STATUS OF TRADE UNIONS AND EMPLOYERS’
ASSOCIATIONS
16 Status of trade unions and employers’ associations
(1) If a trade union or
employers’ association is unincorporated, it is capable –
(a) of making contracts;
and
(b) of suing and being sued
in its own name (whether in proceedings relating to property or founded on
contract, tort or any other cause of action),
but this paragraph is subject to paragraph (4).
(2) If a trade union or an
employers’ association is unincorporated –
(a) all property belonging
to the union or association shall be vested in trustees in trust for the union
or association;
(b) proceedings for any
offence that has allegedly been committed by or on behalf of the union or
association may be brought against the union or association in its own name;
and
(c) any judgment, order or
award made in proceedings of any description that are brought against the union
or association is enforceable against the property of the union or association.
(3) A trade union may not
be registered under the Companies (Jersey) Law 1991[2] as a limited company, as
defined in Article 3C of that Law.
(4) A trade union or
employers’ association that is neither incorporated nor registered is incapable
of suing in its own name.
(5) This Article does not
apply to a trade union, or employers’ association, that is a fidéicommis over
which the Royal Court
has jurisdiction by virtue of Article 9 of the Loi (1862) sur les teneures en fidéicommis et
l’incorporation d’associations[3].
17 Exclusion of rules against restraint of
trade
(1) The purposes of a trade
union or employers’ association are not, by reason only that they are in
restraint of trade, unlawful so as –
(a) to make any member of
the union or association liable to criminal proceedings for conspiracy or for
any other offence; or
(b) to make any agreement
or trust void or voidable.
(2) No rule of a trade
union or employers’ association is unlawful or unenforceable by reason only
that it is in restraint of trade.
18 Employee’s liability for
breach of contract by industrial action
(1) An employee is not
liable in damages to his or her employer for a breach of the employee’s
contract of employment consisting of –
(a) a cessation of work;
(b) a refusal to work; or
(c) a refusal to work in a
manner lawfully required by his or her employer,
in contemplation or furtherance of an employment dispute.
(2) This Article does not
affect –
(a) any right or remedy of
the employer, other than a remedy specified in paragraph (1); or
(b) any other liability of
the employee,
arising out of a breach of a contract of employment.
19 Immunities from liability
in tort for industrial action
(1) An act done by a person
in contemplation or furtherance of an employment dispute is not actionable in
tort by reason only –
(a) that it induces another
person to break a contract or interferes or induces any other person to
interfere with its performance;
(b) that it consists in the
first person’s threatening that a contract will be broken (whether or not it is
one to which he or she is a party);
(c) that it consists in the
first person’s threatening that there will be interference with a contract (whether
or not it is one to which he or she is a party); or
(d) that it consists in the
first person’s threatening that he or she will induce another person to break a
contract or to interfere with its performance.
(2) An agreement or
combination by 2 or more persons to do or procure the doing of any act in
contemplation or furtherance of an employment dispute is not actionable in tort
if the act is one that, if done without any such agreement or combination,
would not be actionable in tort.
(3) An agreement or
combination by 2 or more persons to do or procure the doing of any act in
contemplation or furtherance of an employment dispute is not a criminal offence
if such an act committed by one person would not be a criminal offence.
20 Limitations on immunities
from liabilities in tort
(1) Article 19 does
not prevent an act done –
(a) by a trade union or
employers’ association; or
(b) by an official of a
union or association,
from being actionable in tort if at the time of the act the union or
association is not registered.
(2) Article 19 does
not prevent an act done by a trade union from being actionable in tort
if –
(a) an approved code of
practice provides for the holding of a ballot of members of the union before it
does such an act; and
(b) a ballot in respect of
the doing of the act has not been held in accordance with an approved code of
practice, or a majority of those balloted do not support the doing of the act.
(3) Article 19 does
not prevent an act described in paragraph (1) of that Article from being
actionable in tort if –
(a) an approved code of
practice defines conduct that is or is not reasonable conduct when done in
contemplation or furtherance of an employment dispute; and
(b) one of the facts relied
on for the purpose of establishing liability is that the act of the trade union
constitutes conduct that, as so defined, is not reasonable conduct.
21 Limitation of damages
(1) In any proceedings in
tort brought against a registered trade union, the amount which may be awarded
against the union by way of damages in those proceedings shall not exceed
£10,000.
(2) Paragraph (1) does not
apply –
(a) to any proceedings for
negligence, nuisance or breach of duty, to the extent that the proceedings are
in respect of personal injury to any person; or
(b) to any proceedings for
breach of duty in connection with the ownership, occupation, possession,
control or use of moveable or immoveable property.
(3) The States may by
Regulations vary the amount specified in paragraph (1).
(4) In this Article –
“duty” means a duty imposed by any enactment or other rule of law;
and
“personal injury” includes any disease or impairment of a person’s
physical or mental condition.
PART 4
RESOLUTION OF COLLECTIVE EMPLOYMENT
DISPUTES
22 Jurisdiction in respect of collective
employment disputes
(1) Proceedings may be
brought before the Jersey Employment Tribunal in respect of a collective
employment dispute –
(a) with the consent of
each party to the dispute; or
(b) at the request of any
party to the dispute, in the circumstances described in paragraph (2).
(2) The circumstances to
which this paragraph refers are –
(a) that the body or person
making the request considers that as far as is practicable all other available
procedures have been applied unsuccessfully to seek to resolve the dispute; and
(b) that a party to the
dispute is acting unreasonably in the way in which that party is or is not
complying with an available procedure.
(3) For the purposes of
paragraph (2), a procedure is an available procedure if –
(a) it is a procedure for
the resolution of the dispute that is contained in a collective agreement, a
relevant contract of employment or a relevant handbook for employees;
(b) it is a procedure for
the resolution of the dispute in accordance with an approved code of practice;
or
(c) it is a procedure for
the resolution of the dispute that is otherwise established within the trade or
industry concerned by this Law or any other Law.
(4) In deciding whether or
not a party to the dispute is acting unreasonably in the way in which that
party is or is not complying with an available procedure in a relevant handbook
for employees, regard shall be had to whether or not the handbook has been
agreed by or on behalf of the parties to the dispute, but this paragraph does
not limit the generality of paragraph (2)(b).
23 Orders and declarations
in collective employment disputes
(1) On hearing proceedings
in respect of a collective employment dispute that are brought before the
Tribunal, it may make –
(a) with the consent of
each party to the dispute, an order that is binding on the parties; or
(b) a declaration.
(2) A declaration under
paragraph (1) may relate to any of the following things –
(a) the opinion of the
Tribunal as to whether any party to the dispute is not observing any relevant
terms and conditions;
(b) the interpretation of
any terms and conditions of a collective agreement that are relevant to the
dispute;
(c) the incorporation into
the individual contracts of employment of the employees to whom the dispute
relates of any terms and conditions to which either of sub-paragraphs (a)
and (b) refers.
(3) In
paragraph (2)(a), “any relevant terms and conditions” means –
(a) any terms and conditions of employment that
are, in the opinion of the Tribunal, applicable to the case; or
(b) any terms and conditions of employment that
are, in the opinion of the Tribunal, not less favourable to the employee or
employees concerned than the terms and conditions to which
sub-paragraph (a) refers.
24 Incorporation of terms
and conditions into contracts of employment
(1) Where the Tribunal
makes a declaration under Article 23 that any terms and conditions
specified in the declaration are to be incorporated into the individual
contract of employment of any employee, it shall from the operative date be a
term of the contract of employment between the employer and the employee
that those terms and conditions shall be terms and
conditions of the contract –
(a) until they are varied
by subsequent agreement between the parties or (with effect from the operative
date of a subsequent declaration of the Tribunal) by that subsequent
declaration; or
(b) until different terms
and conditions of employment in respect of the employee
concerned are settled through the machinery of
negotiation, mediation, conciliation or arbitration for the settlement of terms
and conditions of employment in the trade or industry or the undertaking in
which the employee concerned is
employed.
(2) In paragraph (1),
“the operative date” means –
(a) the date on which the
Tribunal makes the declaration, if no other operative date is specified in the
declaration; or
(b) such other operative
date as the Tribunal may direct in the declaration, not being earlier than the
date on which the collective employment dispute to which the declaration
relates first arose.
PART 5
OTHER PROVISIONS
25 Approval of codes of practice
(1) The Committee may,
subject to this Article, by Order approve any code of practice for the purposes
of this Law.
(2) An approved code may in
particular provide for any of the following matters, namely –
(a) the recognition of
trade unions;
(b) the manner in which
ballots of members of trade unions may be held to support the doing of acts by
unions in contemplation or furtherance of employment disputes;
(c) conduct that is or is
not reasonable conduct when done in contemplation or furtherance of employment
disputes; and
(d) recommended procedures
for the resolution of employment disputes.
(3) Before approving a code
of practice, the Committee shall publish a notice in the Jersey Gazette –
(a) stating that a copy of
the code of practice will be available for inspection during normal working
hours, free of charge, at a place specified in the notice;
(b) specifying a period
during which it will be available for inspection (being a reasonable period of
not less than 21 days, beginning after the notice is published); and
(c) explaining that anyone
may make representations in writing to the Committee in respect of the code of
practice at any time before the expiry of the 7 days following the period for
inspection,
and the Committee shall make a copy of the code of practice
available accordingly for inspection.
(4) Before approving the
code of practice, the Committee shall also consult –
(a) the Jersey
Advisory and Conciliation Service;
(b) the Employment Forum;
(c) the Policy and
Resources Committee, in respect of international agreements and international
obligations that relate to employment relations and are binding on Jersey; and
(d) such other persons as
the Committee considers will be affected, or representatives of such persons.
(5) The Committee shall not
proceed to decide whether or not to approve the code of practice until the time
limit under paragraph (3) for making representations has elapsed.
(6) In deciding whether or
not to approve the code of practice, the Committee shall consider all
representations made under this Article in respect of the proposal.
(7) An Order approving a
code of practice shall not come into force before the expiry of the period of
28 days commencing on the day on which it is laid before the States.
26 Failure to comply with an approved code of practice
(1) A failure on the part
of any person, trade union or employers’ association to observe any provision
of an approved code of practice issued under this Law does not of itself render
that person, union or association, or any member of the union or association,
liable to any proceedings.
(2) However, paragraph (1)
is subject to Article 20(2).
(3) In any proceedings
before a court or before the Tribunal, an approved code of practice is
admissible in evidence.
(4) If it appears to the
court or the Tribunal that any provision in an approved code of practice is
relevant to any question arising in the proceedings, the court or the Jersey
Employment Tribunal shall take that provision into account in determining the
question.
27 Regulations
(1) The States may make
Regulations for any of the following purposes –
(a) prescribing information
for the purposes of paragraphs (3) and (4) of Article 8;
(b) prescribing forms of
application for the purposes of this Law;
(c) prescribing application
fees for the purposes of any of Articles 9(7), 11(5) and 13(3);
(d) prescribing the forms
of certificates of registration of trade unions and employers’ associations,
for the purposes of Article 10(3);
(e) varying the amount for
the time being specified in Article 21(1);
(f) requiring trade unions
and employers’ associations to keep proper accounts of their financial
transactions and their assets and liabilities;
(g) prescribing procedures
to be applied by unions and associations for the proper control of their
accounting records, cash holdings and receipts and payments;
(h) requiring unions and
associations to have their accounts audited periodically;
(i) prescribing
qualifications for auditors for the purposes of this Law;
(j) requiring unions and
associations to deliver periodically to the registrar prescribed returns of
information;
(k) prescribing information
to be provided, periodically or otherwise, by unions and associations to their
members;
(l) providing for any
other matters that may be prescribed under any other provision of this Law.
(2) Regulations made under
this Article may in the case of trade unions and employers’ associations also
impose on any trustees of their property, in respect of such property, the same
requirements as may be imposed on unions and associations under any of
sub-paragraphs (f), (g), (h), (k) and (j) of paragraph (1).
(3) Regulations made under
this Article may provide that any contravention of a Regulation shall be an
offence, and may provide that any such offence shall be punishable by a fine.
28 Amendment of other enactments
The enactments specified in the Schedule are
amended in the manner specified in the Schedule.
29 Citation and commencement
(1) This Law may be cited
as the Employment Relations (Jersey)
Law 2007.
(2) This Law comes into
force on such day as the States may by Act appoint.
a.h. harris
Deputy Greffier of the States
SCHEDULE
(Article 28)
AMENDMENT OF OTHER ENACTMENTS
1 Amendment of the Jersey Advisory and Conciliation (Jersey)
Law 2003
(1) In this paragraph,
“principal Law” means the Jersey Advisory
and Conciliation (Jersey) Law 2003.[4]
(2) In Article 1(1) of
the principal Law –
(a) after the definition
“Board” there is inserted the following definition –
“ ‘collective employment
dispute’ means a collective employment dispute as defined in Article 5 of
the Employment Relations (Jersey)
Law 2007[5];”;
(b) in the definition “employment dispute”,
for all the words following the words “or with the conditions of labour of any
of those workers” there is substituted “or with the rights or duties of an
employer or an employee”;
(c) after the definition
“function” there is inserted the following definition –
“ ‘individual employment
dispute’ means an employment dispute that is not a collective employment
dispute;”.
(3) After Article 1 of
the principal Law there is inserted the following Article –
“1A ‘Employer’
and ‘employee’
(a) ‘employer’ means a person who employs another person; and
(b) ‘employee’ means a person who is employed by an employer.
(2) For the purposes of paragraph (1), a person is employed by
another person if the first person works for the second person under a contract
of service or apprenticeship with the second person.
(3) For the purposes of paragraph (1), a person is also
employed by another person if the first person enters into any other contract
with the second person under which –
(a) the first person undertakes
to do, or to perform personally, work or services for the
second person; and
(b) the status of the second
person is not that of a client or customer of any
profession or trade or business undertaking that is carried on by the first person.
(4) It is immaterial whether a contract to which paragraph (2)
or paragraph (3) refers is express or implied.
(5) If the contract is express, it is immaterial whether it is oral
or in writing.”.
(4) In Article 4(3)(b)
of the principal Law, for “issued under this Law” there is substituted
“approved under Article 25 of the Employment Relations (Jersey)
Law 2007[6]”.
(5) Articles 9, 10 and 11 of the principal Law are repealed.
2 Amendment of the
Employment (Jersey) Law 2003
(1) In this paragraph,
“principal Law” means the Employment (Jersey)
Law 2003[7].
(2) In Article 1(1) of
the principal Law –
(a) for the definition
“collective agreement” there is substituted the following definition –
“ ‘collective agreement’
means an agreement that has been settled by machinery of negotiation,
mediation, conciliation or arbitration to which the parties are –
(a) an employer, or an organization of employers that is
representative of a substantial proportion of the employers engaged in the
trade or industry concerned; and
(b) employees who are representative of a substantial proportion of
the employees engaged in the trade or industry concerned;”;
(b) after the definition
“collective agreement” there is inserted the following definition –
“ ‘collective employment
dispute’ means a collective employment dispute as defined in Article 5 of
the Employment Relations (Jersey)
Law 2007[8];”;
(c) the definitions
“employ” and “trade union” are deleted;
(d) in the definition
“employment dispute”, for all the words following “or with the conditions of
labour of any of those employees” there is substituted “or with the rights or
duties of an employer or an employee”;
(e) after the definition
“fixed term contract of employment” there is inserted the following
definition –
“ ‘individual employment
dispute’ means an employment dispute that is not a collective employment
dispute;”.
(3) After Article 1 of
the principal Law there are inserted the following Articles –
“1A ‘Employer’
and ‘employee’
(a) ‘employer’ means a person who employs another person; and
(b) ‘employee’ means a person who is employed by an employer.
(2) For the purposes of paragraph (1), a person is employed by
another person if the first person works for the second person under a contract
of service or apprenticeship with the second person.
(3) For the purposes of paragraph (1), a person is also
employed by another person if the first person enters into any other contract
with the second person under which –
(a) the first person undertakes
to do, or to perform personally, work or services for the
second person; and
(b) the status of the second
person is not that of a client or customer of any
profession or trade or business undertaking that is carried on by the first
person.
(4) It is immaterial whether a contract to which paragraph (2)
or paragraph (3) refers is express or implied.
(5) If the contract is express, it is immaterial whether it is oral
or in writing.
(1) In this Law, ‘trade union’ means an organization described in
paragraph (2) or in paragraph (3).
(2) An organization is a trade union if –
(a) it consists wholly or
mainly of employees of one or more descriptions; and
(b) its principal purposes
include the regulation of relations between employees of that description or of
those descriptions and employers or employers’ associations.
(3) An organization is also a trade union if it consists wholly or
mainly of –
(a) constituent or affiliated
organizations that fulfil the conditions in paragraph (2), or that
themselves consist wholly or mainly of constituent or affiliated organizations
that fulfil those conditions; or
(b) representatives of any such
constituent or affiliated organizations,
and its principal purposes
include the regulation of relations between employees and employers or between
employees and employers’ associations, or the regulation of relations between
its constituent or affiliated organizations.
(4) It is immaterial whether an organization described in
paragraph (2) or in paragraph (3) is temporary or permanent.
1C ‘Employers’ association’
(1) In this Law, ‘employers’ association’ means an
organization that is described in paragraph (2) or in paragraph (3).
(2) An organization is an
employers’ association if –
(a) it consists wholly or
mainly of employers or individual owners of undertakings of one or more
descriptions; and
(b) its principal purposes
include the regulation of relations between employers of that description or of
those descriptions and employees or trade unions.
(3) An organization is also an
employers’ association if it consists wholly or mainly of –
(a) constituent or affiliated
organizations that fulfil the conditions in paragraph (a), or that
themselves consist wholly or mainly of constituent or affiliated organizations
that fulfil those conditions; or
(b) representatives of any such
constituent or affiliated organizations,
and its principal purposes include the regulation of relations between
employers and employees or between employers and trade unions, or the
regulation of relations between its constituent or affiliated organizations.
(4) It is immaterial whether an
organization described in paragraph (2) or in paragraph (3) is
temporary or permanent.”.
(4) After Article 2 of
the principal Law, but before Part 2 of the principal Law, there are inserted
the following Articles –
“2A Approval
of codes of practice
(1) The Committee may, subject to this Article, by Order approve any
code of practice for the purposes of this Law.
(2) Before approving a code of practice, the Committee shall publish
a notice in the Jersey Gazette –
(a) stating that a copy of the code of practice will be available
for inspection during normal working hours, free of charge, at a place
specified in the notice;
(b) specifying a period during which it will be available for inspection
(being a reasonable period of not less than 21 days, beginning after the
notice is published); and
(c) explaining that anyone may make representations in writing to
the Committee in respect of the code of practice at any time before the expiry
of the 7 days following the period for inspection,
and the Committee shall make
a copy of the code of practice available accordingly for inspection.
(3) Before approving the code of practice, the Committee shall also
consult –
(a) the Jersey Advisory and Conciliation
Service;
(b) the Employment Forum; and
(c) such persons as the Committee considers will be affected, or
representatives of such persons.
(4) The Committee shall not proceed to decide whether or not to
approve the code of practice until the time limit under paragraph (2) for
making representations has elapsed.
(5) In deciding whether or not to approve the code of practice, the
Committee shall consider all representations made under this Article in respect
of the proposal.
(6) An Order approving a code of practice shall not come into force
before the expiry of the period of 28 days commencing on the day on which
it is laid before the States.
2B Failure
to comply with approved code of practice
(1) A failure on the part of any person to observe any provision of
an approved code of practice issued under this Law shall not of itself render
the person liable to any proceedings.
(2) In any proceedings before a court or before the Tribunal an
approved code of practice shall be admissible in evidence.
(3) If it appears to the court or the Tribunal that any provision in
the approved code of practice is relevant to any question arising in the
proceedings, the court or the Tribunal shall take that provision into account
in determining the question.”.
(5) In Article 36(1)
of the principal Law, for ‘sub-paragraph (b) in the definition of “employ”
in Article 1’ substitute ‘Article 1A(3)(a)’.
(6) In
Article 65(1)(b) of the principal Law, after “at an appropriate time”
there is inserted “,or in any action by a trade union in contemplation or
furtherance of an employment dispute (not being action by way of conduct that
is specified in a code of practice approved under Article 25 of the Employment Relations (Jersey) Law 2007[9] as unreasonable conduct when
done in contemplation or furtherance of an employment dispute)”.
(7) In Article 81 of
the principal Law, after paragraph (2) there is added the following
paragraph –
“(3) Articles 89, 90, 91, 92, 93, 94 and 95 shall apply to the
Tribunal and to proceedings before it when it is exercising jurisdiction
conferred on it by or under any other Law as they apply to the Tribunal and to
proceedings before it when it is exercising the jurisdiction conferred on it by
or under this Law.”.
(8) In Article 86 of
the principal Law –
(a) for the heading there
is substituted the following heading –
“Jurisdiction
in respect of individual employment disputes”;
(b) paragraph (4) is
repealed;
(c) in paragraph (5),
the first sentence is repealed;
(d) in paragraph (5),
in the second sentence, for “paragraphs (3) and (4)” there is substituted “and
(4)”;
(e) in paragraph 5, “or
collective” is deleted.
(9) In Article 88 of
the principal Law –
(a) for the heading there
is substituted the following heading –
“Awards
in individual employment disputes”;
(b) in paragraph (1), for
“employment dispute” there is substituted “individual employment dispute”;
(c) in paragraph (2), after
“negotiation” there is inserted “,mediation, conciliation”;
(d) in paragraph (4), “or a collective” is deleted.
(10) After Article 105(2)
of the principal Law there is added the following paragraph –
“(3) In the Jersey Advisory and
Conciliation (Jersey) Law 2003[10], in Article 5, for the
words ‘an industrial tribunal constituted under Article 3 of the Industrial Disputes (Jersey) Law 1956[11]’ there shall be substituted
the words ‘the Jersey Employment Tribunal established by Article 81 of the
Employment (Jersey) Law 2003[12]’ ”.