Tribunal, individual and collective disputes

Guidance note 7 to the EMPLOYMENT (JERSEY) LAW 2003

This statement is intended to explain to employers and employees the principal requirements of the Law. It is not intended to cover all the requirements of the Law, nor does it represent a statement of the Law. Any reference to male persons in the statement should be read as including, or being, female persons where this is appropriate.

Individual and Collective Disputes and the Tribunal (part 9 Articles 81 to 95)

1. An employment dispute may be referred to the Jersey Employment Tribunalwhether or not it has first been referred to JACS for conciliation. Such reference may be made by any party to the dispute.

2. A collective dispute may be referred to the Tribunal (as a last resort, having failed to reach a negotiated or a mediated settlement.) 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:

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

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

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

If the Tribunal declares that terms and conditions are to be incorporated into the individual contracts of employment 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).

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:

o 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

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

An available procedure is:

o 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.

o 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.

3. The Tribunal may deal with an individual dispute, in accordance with laws in force, except where:

a. The dispute has been subject to an arbitration award in accordance with the JACS law.

b. A claim for personal injuries is included.

c. A claim for breach of contract in respect of any of the following is included:

i. R equirements to provide or obligations in respect of living accommodation relevant to either party

ii. I ntellectual property

iii. O bligations of confidence

iv. C ovenants in restraint of trade

4. If the Tribunal concludes that there are recognized terms and conditions applicable to the case that are not being observed by the employer or employee, it may require either party to observe those terms.

Tribunal proceedings (Articles 90 and 91)

5. In Tribunal proceedings:

a. A person may represent himself or be represented by any person whom he wishes.

b. W itnesses may attend or be summonsed to attend and give evidence on oath.

c. Disclosure of any relevant document (including those in electronic form) to the Tribunal may be required.

d. Tribunal hearings will normally be held in public, but the Tribunal may decide to sit in private in certain circumstances.

e. Awards for costs or expenses may be made, subject to Regulations.

f. Persons appearing before the Tribunal are subject to the same contempt of court regulations as if they were appearing before the Royal Court. Offenders are liable to a fine and/or to a maximum term of imprisonment of 2 years.

Appeals (Article 94)

6. a. An appeal on a question of law may be made to the Royal Court, with the permission of the Tribunal or of the Royal Court.

b. If the Tribunal decides that a claim or application is vexatious, then there is no right of appeal.

Further advice or information and copies of this and other guidance notes may be obtained from the Jersey Advisory and Conciliation Service in person or by telephoning (01534) 730503; fax (015434) 733942; email jacs@jacs.org.je; www.jacs.org.je Copyright restrictions are waived on this document and it may be copied providing that the content is not altered in any way.

Djw/jacs/8 March 2005