Guide to Code 3 - Resolving Collective 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 3 – Resolving Collective 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 3 – Resolving Collective Disputes – purpose: provides a framework by which a collective dispute involving an employer and a trade union recognised by that employer should seek to resolve their differences.

A "Collective employment dispute": a dispute between employers and employees where the employees are represented by a trade union that is recognised by the employer for collective bargaining purposes, and the dispute relates to one or more of the following:

· The terms and conditions of one or more employees

· Working conditions

· Issues relating to the recruitment or dismissal of individuals

· The allocation of work or duties to or between employees

· Matters of discipline or grievance

· The membership or non-membership of a trade union on the part of one or more employees

· Facilities granted to union officials

· An issue as to whether an approved code of practice is being observed by one or more employees, or one or more employers

· Recognition disputes

Recognition agreements :

Good employment relations are encouraged by recognition agreements. Such agreements often set out specific procedures to be followed by the union and the employer where a dispute arises or there is a ’failure to agree’.

To assist employers and unions, JACS has produced a model dispute resolution procedure as an example that can be built upon by both parties (see section 2 of appendix 3 to the guide dealing with the recognition of trade unions).

The Code of Practice states that:

· Where such an agreement has been made, failure by either party to follow that procedure before taking any action in respect of the dispute will be regarded as unreasonable conduct.

· Unless otherwise specified in the agreement, balloting for action is not unreasonable conduct, no matter when it occurs.

· It will be unreasonable for a union to call on employees to take part in action without first making reasonable attempts to reach a negotiated settlement with the employer.

Principles of a dispute resolution procedure

In situations where the parties to a collective agreement have not made specific provision for a dispute resolution procedure, the Code sets out the principles that shall apply in order for actions to be reasonable when a dispute arises.

· The parties should try to negotiate a settlement to the dispute, using their normal negotiating procedures.

· If a settlement is not possible, either (or both) the union and/or the employer may request assistance from a suitable independent third party, for example the Jersey Advisory and Conciliation Service ("JACS").

· The third party will attempt to facilitate discussion between the parties with a view to reaching an agreement.

· When JACS is requested to assist, it will appoint a mediator or conciliator to assist the parties in reaching a formal non-binding agreement. At the start of the mediation process, JACS would develop a mediation framework to set out who will be involved, the information to be shared, the date of mediation and the proposed timescale.

· If conciliation/mediation is unsuccessful, the parties should consider whether they jointly wish to submit their dispute to binding arbitration. Again, JACS can assist in this process if requested, by contacting experienced arbitrators and making all necessary arrangements. A refusal to submit to binding arbitration, in itself, will not render action taken in furtherance of a dispute unreasonable.

Tribunal Jurisdiction and role

As a last resort, having failed to reach a negotiated or a mediated settlement, the collective dispute may be referred to the Employment Tribunal ("the Tribunal") in a format set out by the Tribunal. Such a reference does not preclude a settlement by other means, if possible.

Where both parties agree to refer the dispute to the Tribunal, then the Tribunal is empowered to make such order as it thinks fit. Any order made by the Tribunal will be binding on the parties and it would be unreasonable conduct for either party to fail or refuse to comply with the order. As a last resort, compliance with a Tribunal order may be enforced through the Courts. Once a joint application to the Tribunal is made, it would be unreasonable conduct for either party to seek to withdraw consent to the Tribunal issuing an order in respect of the dispute.

The Tribunal may also make a declaration about a dispute, with or without the consent of the parties, relating to any of the following matters:

· Whether any party to the dispute is not observing relevant terms and conditions of employment

· The interpretation of any terms and conditions of a collective agreement that are relevant to the dispute, or

· The incorporation of such terms and conditions into individual contracts of employment

The Tribunal may declare that terms and conditions are to be incorporated into the individual contracts of employment. If this happens, they remain as contractual terms until such time as they are varied by subsequent agreement between the parties (through negotiation, mediation, conciliation or jointly agreed arbitration (where both parties agree, or by a subsequent declaration by the Tribunal).

Application to the Tribunal by one party to the dispute.

While a joint and voluntary approach to referrals to the Tribunal is favoured, in limited circumstances any party to the dispute (which may be a body or person) can refer the matter to the Tribunal without the agreement of the other party. This is possible only where:

· The party making the reference considers that as far as is practicable all other available procedures have been applied and have been unsuccessful in seeking to resolve the dispute and

· A party to the dispute is acting unreasonably in relation to its compliance with an available procedure.

An available procedure is:

· A dispute resolution procedure contained in a collective agreement, relevant contract of employment, or a relevant handbook for employees that has previously been agreed by, or on behalf of, the parties to the dispute.

· A dispute resolution procedure contained in an approved Code of Practice

· A dispute resolution procedure established by this law or another law within the trade or industry concerned.

JACS/February 2008

JACS provides a large amount of information relating to employment topics. All of the documentation can be viewed from this web-site.