Guide to Code 2 - Balloting and Conduct in Employment Disputes
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Guide to the Codes of Practice - Employment Relations (Jersey) Law, 2007
The Codes of Practice that support the law were published on 21st December 2007 and came into effect on 15th February 2008. To assist our clients we have released guides to the codes.
This guide explains the main provisions of Code 2 – Balloting and Conduct in Employment Disputes
The Social Security Minister has approved three Codes of Practice that are admissible in evidence and may be taken into account by the Employment Tribunal or a court in determining any question arising in respect of the Employment Relations (Jersey) Law 2007.
Code 2 – Balloting and Conduct in Employment Disputes
– purpose: deals with the limitations from liabilities in tort (tort is the commitment of a legal wrong)
Action in furtherance of a dispute:
A "strike" is defined in the Employment (Jersey) Law 2003 as "the cessation of work by a body of persons employed acting in combination, or a concerted refusal or a refusal under a common understanding of any number of persons employed to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment" .
Action taken in furtherance of a dispute (industrial action) is concerted action against the employer’s interests in order to put pressure on the employer in an attempt to achieve some objective relating to the dispute. Examples are where employees collectively withdraw their labour; refuse to undertake some of their duties; refuse to carry out reasonable instructions; take part in a sit-in, go slow or work to rule; take part in picketing.
While these acts would generally amount to a breach of contract, the Employment Relations Law (the Law) provides that an employee shall not be liable for damages where that action was taken in a lawfully required manner. The Law provides wide-ranging immunity in tort for those who organise such action, including trade unions, provide that the trade union is registered in accordance with the Law. Immunity is lost and the union will be vulnerable to legal action if:
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an approved code of practice provides that a ballot should be held and the union has not balloted in accordance with the code, or
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the union has engaged in conduct that an approved code defines as not being reasonable conduct.
Unofficial ("wildcat") action.
If employees take action without the support of a trade union, it will be unreasonable if a union becomes involved at a later stage and takes steps in support or continuance of the action. If the action stops, however, a union can call for further action without losing immunity if it acts in line with the code and balloting procedures.
Calling action in furtherance of an employment dispute
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:
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should be a last resort
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should only be undertaken with the support of the employees involved
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should only be taken after appropriate notice has been given to the employer
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should not be targeted at employers who are not parties to the dispute and
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should not place members of the community at risk or cause serious disruption to the provision of essential services
These guidelines address each of these issues:
Action as a last resort
It would be unreasonable conduct for the union to take action in furtherance of a dispute without first making reasonable attempts to resolve the dispute through negotiation. For example, if the recognition agreement between the parties includes a dispute resolution procedure then it would be unreasonable for the union to take action without first completing that procedure, unless the employer refuses to co-operate in applying the procedure. In these latter circumstances, it would be reasonable for the union to take action, provided the union follows this code in all other respects.
Where there is no agreed procedure in place, it would be considered unreasonable for the union to take action without first making a bona fide attempt, via JACS, to promote a settlement through conciliation or mediation, unless the employer has clearly indicated it does not intend to engage with any such process.
Arbitration should be considered as useful method of dispute resolution, but a union does not act unreasonably in refusing to engage in arbitration even if it is specifically provided for in an agreed dispute resolution procedure.
The support of employees - Balloting
A union will lose its immunity if it authorises or endorses any action in furtherance of a dispute unless the majority of employees voting in a ballot have indicated their support for the action. A ballot may be held at any stage in the negotiation or dispute resolution procedure and should not interrupt attempts to resolve the
dispute.
Employees must be free to decide whether to support action and employees must not be threatened or intimidated with sanctions by either the union or the employer. This does not prevent both sides from campaigning reasonably for a particular result from the ballot. To ensure that the ballot is conducted in a fair way the following principles should apply:
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An independent person should be appointed to conduct the ballot, as defined in the Code. The independent person is responsible for distributing the ballot papers, supervising the voting process and counting the votes. At the end of the ballot, the independent person should notify the union of the number of votes cast and the number of members voting for and against action.
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The ballot should be conducted in such a way as to ensure that those voting should cast their vote in secret. The ballot can take place in the workplace if the independent person believes that individual employees will not be intimidated into voting in a particular way. The employer should provide appropriate facilities for the holding of a ballot and ensure that employees are given a reasonable opportunity to vote without loss of pay. The independent person may however consider that it is more appropriate for the ballot to be conducted by post, or by a combination of workplace and postal voting.
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All members of the trade union whom the union believes it would call upon to take part in the action must be entitled to vote. The union must not deliberately exclude from the right to vote any of its members who could have been called upon to take part in the action. Provided the union has taken reasonable steps to ensure that all those members entitled to vote have the opportunity to do so, it will not be unreasonable conduct for the union to proceed with action if members are not able to vote because of accidental omissions or technical errors which could have made no difference to the outcome of the ballot.
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The ballot paper may contain more than one question. However, any question should ask merely for a yes or no answer. All questions should be clear and easily understood. Translated papers should be available on request. Each ballot paper must be numbered and all members entitled to vote must be issued with a single ballot paper. Spoilt papers may be exchanged for new ballot papers only at the discretion of the independent person.
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The union should be responsible for any expenses incurred in the conduct of the ballot, unless the employer and the union agree to jointly share the costs.
If more than 50% of those voting in the ballot vote to support the action the vote is carried. It would be unreasonable if the union called action that is beyond the scope of the question asked in the ballot. For example, if a majority of members voted ’yes’ to the imposition of an overtime ban it would be unreasonable for the union to call on those employees to take part in an all-out strike on the basis of that ballot. Similarly, if a strike has not taken place, it would be unreasonable for the union to call for action more than three months after the first ballot for strike action without taking a second strike vote.
Appropriate notice
As soon as reasonably practicable after holding a ballot, the union should inform all those entitled to vote, and their employer(s), of the number of votes in favour of and opposed to action and the number of spoiled papers.
To allow both sides to pursue a negotiated settlement, the union must give the employer adequate notice before action is actually taken. The notice should be given in writing and sent to the employer so that it is received at least
7 days before the action commences, subject to provisos detailed below in relation to essential services, where other arrangements are necessary.
The notice should state:
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the date on which the action will begin and, if relevant the date when it will end. If the action is to be open-ended then the notice should state this fact.
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sufficient information about the employees who are to be called upon to take part in the action to allow the employer to assess the likely impact of the action on the business or any customers of the business and to make appropriate contingency plans for dealing with the consequences of the action. There is no requirement to specify the names of those employees who will be called upon to take part in the action, but sufficient information would include the categories of employees, the number of employees in each category, the workplaces at which those employees work and the number of them at each workplace. The information should be as accurate as is reasonably practicable.
Secondary action
(targeting employers not party to the dispute).
It would be unreasonable for a union to call upon employees to take part in secondary action in furtherance of an employment dispute. Secondary action refers to action by employees in pursuit of an employment dispute that is not a dispute between them and their own employer. Employees may support their work colleagues, however, and should not be prevented from doing so by any physical divisions of premises where they work for the same employer.
The Employment Relations Law treats any dispute between a Minister of the States of Jersey and employees as a dispute between an employer and employees, even though the Minister in question is not actually the employer. It will amount to secondary action for a union to call on employees to take part in action that relates to any such dispute if the employees in question are not actually party to that dispute.
Picketing
It will not be unreasonable for a union to call upon employees who are involved in the dispute to assemble at or near their place of work in order to picket. That is:
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to peacefully obtain or communicate information
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to peacefully seek to persuade others not to attend work or enter the employer’s premises
Picketing, or calling upon employees to picket, a place of work other than that of the employees taking part in the dispute will amount to unreasonable conduct. Picketing will not be covered by any immunity if those conducting the picket engage in any of the following:
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Unlawful threats, assaults or violence
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Harassment (threatening or unreasonable behaviour which causes fear or apprehension to those in the vicinity)
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The obstruction of any path, road, entrance or exit to premises
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Interference (e.g. because of noise or crowds) in the rights of neighbouring properties (i.e. private nuisance)
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Trespassing on private property
Where a lawful picket has been called, it will not be unreasonable for union officials to join the picket, even though they are not employed at the premises concerned. "Union officials" are officers of the union or of a branch or section of the union, or persons elected or appointed in accordance with the rules of the union to be a representative of its members, or of some of them.
Action in Essential Services
It is for the union and the employer to determine proper procedures to deal with disputes in 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 so as to endanger the life, personal safety or health of the whole or part of the population; or where the extent and duration of the action might result in an acute national crisis.
While it can be problematic to define certain essential services, the Code states that in a small Island community such as Jersey certain circumstances are considered more essential to the population than they would be in a larger jurisdiction. For example, a stoppage in transport links could be detrimental to the health and safety of the population if services were interrupted for a prolonged period.
An agreement should define a minimum service and provide for a formal, rapid and impartial dispute resolution mechanism in the event that negotiation fails. This may include the use of conciliation, mediation or arbitration services including the involvement of JACS and the Jersey Employment Tribunal.
Where such an agreement is in place, it will be unreasonable for the union to call for action that would be in breach of the agreement.
If, prior to an agreement being reached, action is called which would seriously interrupt an essential service, notice should be given in writing and received by the employer at least 20 days before the action commences.
Protection from Dismissal
Providing that a union calls for action in accordance with the Code of Practice (i.e. the action is not defined as unreasonable conduct and has been supported by a properly conducted ballot as detailed in the code), it will be automatically unfair for the employer to dismiss any employee for taking part in that action, irrespective of the qualifying length of service of the employee or the fact that he/she has reached retirement age as defined in the Employment Law.
Where any action taken is in breach of the code, there are no special rights applicable and the dismissal is subject to the normal rules of unfair dismissal, as set out in the Employment Law.
JACS/February 2008