Employment Relations Law Codes of Practice

Codes of Practice - Issued under the

Employment Relations (Jersey) Law, 2007

INTRODUCTION

1. Under the terms of Article 25 of the Employment Relations (Jersey) Law 2007, the Social Security Minister is empowered by Order to approve codes of practice which may, in particular, provide for –

"(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."

2. The provisions of these Codes are admissible in evidence and may be taken into account in determining any question arising in proceedings before the Jersey Employment Tribunal or a court.

3. The Codes summarise the relevant statutory provisions, however only the Jersey Employment Tribunal and the courts can interpret the law authoritatively.

4. In preparing the Codes, consideration has been given to Jersey’s international obligations, in particular under the Human Rights (Jersey) Law 2000 and International Labour Organisation (ILO) Conventions No.98, Right to Organise and Collective Bargaining, and No. 87, Freedom of Association and Protection of the Right to Organise.

CONTENTS

Code 1 – The Recognition of Trade Unions Page 2

Code 2 – Balloting and Conduct in Employment Disputes Page 14

Code 3 – Resolving Collective Disputes Page 22

Code 1 – The Recognition of Trade Unions

Note: This Code does not require the parties to any trade union recognition agreement which exists prior to the introduction of the Employment Relations (Jersey) Law 2007 and codes of practice to engage in a new process of recognition.

Trade Union Recognition

To obtain legal status in the Island, a trade union must be registered in accordance with the registration provisions contained in the Employment Relations (Jersey) Law, 2007 ("the Employment Relations Law").

A trade union can be registered, but this does not necessarily mean it is recognised by an employer.

A trade union is recognised by an employer where it is agreed that the employer and union will engage in collective bargaining for any purposes.

Collective bargaining is a process of conducting negotiations in relation to matters relevant to the workplace. Typically, it involves negotiations relating to working conditions including pay, working time, holidays and other benefits. The desired outcome of the process is a collective agreement, the relevant parts of which are then incorporated into the individual contracts of employment of those employees covered by the collective bargaining process.

Collective bargaining can have benefits for both employees and employers. Employees can protect and further their interests through acting in concert with their colleagues, backed up by the security of an organised trade union. Employers, on the other hand, often see collective bargaining as a democratic process for agreeing pay reviews and other changes to terms and conditions without having to enter into detailed negotiations with each individual employee.

Circumstances may arise, however, in which a trade union seeks recognition from an employer who does not wish to enter into a process of collective bargaining. It is clearly desirable that arrangements between unions and employers should, wherever possible, be a matter for agreement between the parties. However, it is also desirable that where such agreement is not possible, there should be a fair and transparent mechanism for determining the best way to proceed.

Tribunal Jurisdiction

Under Article 25 of the Employment Relations Law, the Social Security Minister has approved this Code of Practice to facilitate good practice in seeking voluntary recognition agreements between employers and employees. Where a voluntary recognition agreement cannot be achieved, the voluntary procedure described in this code also provides the basis upon which recognition disputes are dealt with by the Jersey Employment Tribunal ("the Tribunal").

A dispute as to whether this code of practice is being observed (a "recognition dispute") may be referred by either party for resolution by the Tribunal, provided that two criteria are met;

· The trade union is one that fulfils criteria for its recognition as set out in this code, and

· The employer has employed an average of at least 21 employees in the 13 weeks immediately preceding the day on which the dispute arises

If a recognition dispute is referred to the Tribunal, then depending on the view it takes of the conduct of the parties in the circumstances, in relation to the implementation of this code, the Tribunal may declare whether a union should be recognised by the employer for the purposes of collective bargaining in relation to pay, hours of work and holidays only.

In giving that declaration, the Tribunal may specify a method by which collective bargaining should be carried out and that method will then have effect as if it were contained in a legally enforceable contract made between the employer and the union.

It is hoped that references to the Tribunal under these provisions will be rare and that both trade unions and employers will usually be able to resolve any differences regarding recognition agreements voluntarily, through negotiations conducted in a respectful, open and reasonable manner, and without undue delay.

Seeking Recognition

Where an employee or a group of employees are represented by a trade union and the union seeks recognition from an employer with respect to those employees, then it is recommended that both parties engage in a process of discussion and negotiation with a view to agreeing the most appropriate way forward to formal recognition. The Jersey Advisory and Conciliation Service ("JACS") is available to assist in this process when the parties so request.

If informal talks do not succeed then the union should make a formal request to the employer for recognition of their union. This request should:

· Be in writing and dated;

· Identify the trade union making the request;

· Be authorised by a "trade union official", who is an officer 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;

· Identify the bargaining unit in relation to which recognition is sought (The bargaining unit is a group, itself perhaps comprising smaller groups, of employees, which is covered (or is proposed to be covered) by a recognition agreement);

· Specify the issues in relation to which collective bargaining is being sought;

· Give details of the number of employees in the proposed bargaining unit whom the trade union claims to be members of the union;

· Include a copy of the trade union’s certificate of registration (where applicable).

An employer should respond to the trade union’s request within 20 working days. If the employer agrees to recognise the union, talks can begin on reaching a formal recognition agreement (see below). The employer may reject the specific request made by the union but express willingness to negotiate over the extent of recognition granted or the definition of the appropriate bargaining unit. Where this happens, the parties should engage in negotiations in an attempt to reach agreement. JACS may be requested by either party to assist this process.

If an agreement is not possible, it remains in the interest of good employment relations that clear criteria should be set out to determine when trade union recognition should be granted, together with a straightforward procedure for determining whether those criteria have been met for future reference.

With this in mind, it should be noted that there are two key criteria for trade union recognition,

A - The existence of a bargaining unit - An appropriate bargaining unit has been identified or agreed.

B - The wishes of the employees – The majority of employees within that bargaining unit want the trade union to be recognised by the employer.

These criteria, which are discussed further in the following two sections, are referred to in this code as the criteria for recognition. A union which fulfils the criteria for recognition and has followed the provisions of this code of practice should be recognised by the employer for the purposes of collective bargaining.

A - The bargaining unit

This criterion will be taken to have been met if the trade union and the employer have reached an agreement as to the composition of the bargaining unit. Even where the employer does not accept the principle of recognition, it may be possible to agree what the appropriate bargaining unit would be if recognition were to be granted. JACS may be called upon to give assistance in reaching an agreement on this issue.

Where no agreement has been reached, this criterion will only be taken to have been met if:

· The trade union’s proposed bargaining unit is compatible with the effective management of the employer’s business (see below) and

· There are no employees within the bargaining unit in respect of whom the employer already recognises one or more registered trade unions for the purposes of collective bargaining

Whether a given bargaining unit is compatible with effective management depends on a range of factors. These include:

· the description of employees who are covered by the bargaining unit

· whether the employer’s business is structured in such a way as to allow the employees covered by the bargaining unit to be treated as a distinct group

· the desirability of avoiding small, fragmented bargaining units within the employer’s business.

The fact that the bargaining unit proposed by the trade union is not the most favourable from the employer’s point of view does not prevent it from being compatible with the effective management of the business.

Where no agreement on the existence of a valid bargaining unit has been reached, both parties may agree to seek an order from the Tribunal as to whether the union’s proposed bargaining unit is compatible with effective management. For the purposes of such an application (and only for such purposes) the union shall be taken to fulfil the criteria for recognition.

Where both sides do not agree to seek an order from the Tribunal then the union and employer shall seek to determine whether the majority of the employees within the unions proposed bargaining unit support recognition. If that is established, then, in any recognition dispute subsequently brought before the Tribunal, it shall remain open to the employer to argue that the union should not be recognised because the bargaining unit is not appropriate.

B - The wishes of the employees

An employer should only be required to recognise a trade union where it can be clearly demonstrated that the majority of the employees within the bargaining unit want the trade union to be recognised by the employer.

If the union can demonstrate that more than fifty per cent of the employees in the bargaining unit are members of that union, then the union will be taken to have met this criterion and the parties should proceed to negotiate a recognition agreement (see below).

If less than a majority of employees are members of the trade union, then a ballot should be held of members of the bargaining unit to determine whether the union should be recognised. If a majority of those voting in the ballot vote in favour of recognition – and a majority of the employees entitled to vote in the ballot have done so – then the union should be granted recognition.

In showing levels of union membership, a union is not required to disclose the individual names of members to the employer. Where the union’s claimed membership level is not accepted by the employer, then JACS can be asked by the union to verify the level of membership based on information given in confidence to it by the union. If JACS is satisfied that the union has demonstrated the appropriate level of membership, described above, then the union will be taken to have done so for all purposes.

Recognition Ballots

Where a recognition ballot is required, the union should write to the employer asking that a ballot be organised and the employer should work with the union to ensure that a fair ballot is held. In the run up to a recognition ballot, both the union and employer will be entitled to campaign for a particular result. Both the union and the employer must, however, respect the right of employees to vote as they wish. Neither side should threaten employees with any penalty for failing to vote in a particular way, or give any personal incentive for doing so. Nor should any employee be coerced into disclosing how they have voted, or intend to vote.

Access prior to the Ballot

Both sides are encouraged to reach a formal access agreement governing how the union will be permitted access to the workforce for the duration of the balloting process. Within 10 working days of the union’s written request for a ballot having been received by the employer, the employer should respond by inviting the union to a meeting to discuss arrangements for the ballot and – in particular – the issue of access. This meeting should usually take place within a further 10 working days of the union’s written request for a ballot.

The access agreement should cover who will have access to the employees in the bargaining unit and where, when, for how long, and in what form, this access is to be provided. The arrangements should reflect local circumstances and JACS will provide parties with a model access agreement if requested by either party.

In the absence of an access agreement being reached, the following principles should apply as a minimum:

A union shall be entitled to distribute written material to employees and should be given access by the employer to the workplace in order to do this.

Each side must bear its own costs in relation to the production and distribution of written materials.

Where reasonably practicable, the employer should agree to allow all employees (or a substantial proportion of them) the opportunity of attending a meeting with the union of at least 30 minutes for every 10 working days in the period leading up to the ballot. This meeting may take place in scheduled break times, but if it takes place during working time it must be without loss of pay. No extra pay will be due to an employee for attending work other than during normal working hours for the purposes of attending a meeting with the union.

The union should ensure that any disruption to the business of the employer is minimised. This can be done, for example, by scheduling meetings so as to avoid busy periods, or by ensuring that a reasonable level of service is maintained during meetings. This may be achieved by planning the meetings in advance following consultation with the management of the business and considering, for example, holding more than one meeting so that attendance may be staggered over the course of the working day.

Sufficient notice of any intended meeting should be given to the employer to allow appropriate arrangements to be made to minimise any disruption.

Where practicable, the employer should provide a notice board for the trade union to display written material at the place of work. The notice board should be in a prominent location in the workplace and the union should be able to display material, including references to off-site meetings, without interference from the employer.

No abusive or defamatory material should be displayed on any notice board.

Conduct of a Recognition Ballot

The trade union and employer should agree on the date of the ballot, which should normally take place within 15 working days of the conclusion of the access agreement. Where no agreement is reached, the ballot should take place within 15 working days after the breakdown of talks aimed at agreeing access.

· For the ballot to be valid, all employees employed in the bargaining unit must be entitled to vote and given an appropriate opportunity to do so. The ballot should be conducted in such a way as to ensure that those voting do so in secret.

In most cases a ballot should take place at the workplace. In exceptional circumstances the union and employer may agree that the ballot should take place by post, or by a combination of the two.

The time available for voting should be agreed between the union and the employer but must be such as to ensure that all employees entitled to vote have an opportunity of doing so without incurring any additional expense or any loss of pay or benefits. The union and employer should agree on how best to ensure that absent employees, or those working shifts, are given the opportunity to vote. If no agreement is reached then each employee absent on the day of the ballot must be sent a ballot paper by post and given two weeks to return the ballot paper, either in person or by post.

The precise arrangements for conducting the ballot and counting the votes should be agreed between the union and the employer. In the absence of any agreement to the contrary the following protocol should apply:

· Each employee entitled to vote should be issued with a single ballot paper. Each ballot paper should be numbered to ensure that only valid ballots are counted. No record should be kept of which numbered ballot any employee was given.

· The ballot paper should ask a single question to this effect: ’Do you agree that the [insert name of union] should be recognised by [insert name of employer] for the purposes of collective bargaining’.

· Ballots should be placed in a box suitable for the purpose.

· This box should either be sealed in an appropriate way or supervised for the duration of the ballot by representatives of both the union and the employer, or an independent party appointed for the purpose that has been jointly nominated and agreed by the parties, for example JACS.

· At the end of the balloting period, the box should be opened and the votes counted either by both the representative of the union and the employer, or the independent party.

· The result of the ballot should be put in writing and a copy given to the employer and the union.

· The ballot papers should be kept for a period of three months following the ballot, either by the independent party or by the employer, and destroyed at the end of that period.

The Recognition Agreement

If the result of the process is that the union should be recognised for a particular bargaining unit then the parties will need to reach a framework agreement covering the method by which collective bargaining will be conducted and the scope of any agreement reached. A model "Recognition Agreement" is available from JACS.

As a minimum, the agreement should set out sufficient detail to ensure that effective collective bargaining can take place. The agreement should provide that meetings will take place at regular intervals in the run up to a regular date of pay review which is specified in the agreement. The agreement should include provision for the union to be provided with sufficient information about the state of the employer’s business to allow meaningful negotiations to take place. It should also provide that the employer will be represented at the meetings by sufficiently senior managers to ensure that discussions are meaningful and capable of being conclusive.

It is strongly recommended that a recognition agreement provides a mechanism by which any failure to agree or other collective dispute which arises can be resolved through negotiation or conciliation before any action in contemplation or furtherance of an employment dispute takes place. The parties may also wish to provide for independent arbitration in relation to any dispute.

A union which has sought recognition from an employer but which has failed to meet the criteria for recognition shall not be regarded as fulfilling those criteria, and is therefore not entitled to reapply for recognition, until a period of at least one year has elapsed since the initial application was made to the employer.

A union which has fulfilled the criteria for union recognition shall be regarded as continuing to meet those criteria for the period of at least three years following the initial granting of recognition.

De-recognition

After the three year period of recognition has elapsed, the de-recognition of a trade union may be appropriate where it becomes clear that the union no longer fulfils the criteria for recognition. The onus should be on the employer to show the reasons why it believes that the union should be derecognised.

This may be because of changes in the levels of union membership, or it may be that organisational changes mean that the composition of the original bargaining unit has changed significantly, or that the bargaining unit is no longer compatible with the effective management of the undertaking.

If an employer believes that a union no longer fulfils the criteria for recognition and wishes to derecognise, then the employer should notify the union of this intention setting out the reasons. Should the union contest the employer’s claim then the union may submit a request for continued recognition following the same procedure, and within the same timescales, as described above for the initial request for recognition.

Until this procedure has been completed the employer shall continue to recognise the union and the union shall continue to be regarded as fulfilling the criteria for recognition.

Joint Recognition

In some cases it may be appropriate for an employer to voluntarily agree to recognise more than one union in relation to the same bargaining unit. Where this is the case, it is the responsibility of the unions concerned that they act jointly in relation to collective bargaining matters. Where they choose to act jointly then references above to ’the union’ will be taken to include references to ’the unions’ and references to the membership of the union shall be taken to be references to combined membership of the unions making the request.

References to the Jersey Employment Tribunal

The reference of a recognition dispute to the Tribunal should normally be seen as a last resort, to be undertaken only when voluntary attempts to reach an agreement, in accordance with the procedure set out in this code, have failed.

Where a trade union meets the criteria set out in this code and the employer employs 21 or more employees, both parties may agree to seek a declaration from the Tribunal if they are in dispute about recognition.

If both parties do not agree to refer the recognition dispute to the Tribunal, then one party may seek a declaration from the Tribunal if the other party has behaved unreasonably by not following this code of practice.

If, as a result of either a unilateral or a joint referral, the Tribunal declares that the employer should recognise the union, then recognition shall be granted to the union. A Tribunal declaration may also specify a method by which collective bargaining shall be carried out in respect of matters relating to pay, hours of work or holidays, and the method is legally enforceable. An order of the Tribunal may be enforced by the Royal Court.

If recognition is granted, there should be no attempt by the employer to derecognise the union for at least three years. If however the Tribunal declares that the union is not entitled to recognition then the union will not be taken as fulfilling the criteria for recognition for at least one year following the declaration.

Where a trade union does not meet the criteria set out in this code, or the employer in question does not employ 21 or more employees, the Tribunal does not have jurisdiction to make declarations in regard to disputes about union recognition.

The process of seeking recognition

The flowchart on page 13 shows an outline of the mechanism by which recognition should be sought by a union, starting with voluntary processes and moving on to enforcement via the Employment Tribunal where necessary and applicable.

KEY

Yes

Union approaches employer informally with aim of agreeing recognition

Union writes to the employer seeking recognition

Employer agrees to talks?

Talks succeed?

Employer responds within 20 working days?

Employer agrees to request for recognition?

Negotiations leading to written recognition agreement

Recognition takes effect and applies for 3 years (either voluntarily, or via a Tribunal declaration)

Union demonstrates sufficient membership for recognition?

Application for recognition rejected

Recognition takes effect

Negotiations to agree union access

Ballot held

Majority vote in ballot and majority of voters vote yes?

Agreement on bargaining unit?

Assistance from JACS and possible reference to Tribunal for declaration