EMPLOYMENT LEGISLATION

 

 

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Lodged au Greffe on 20th June 2000

by the Employment and Social Security Committee

 

 

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STATES OF JERSEY

 

STATES GREFFE

 

 

180                                                         2000                                                     P.99

 

Price code: C

PROPOSITION

 

THE STATES are asked to decide whether they are of opinion -

 

                to refer to their Act dated 16th March 1999 in which they approved the introduction of legislation to provide for the introduction of a minimum wage and a trainee wage and the establishment of a Jersey Advisory and Conciliation Service and an Employment Tribunal; and

 

                1.       to approve the introduction of legislation as detailed in Part Two of the report of the Employment and Social Security Committee dated 8th June 2000, to -

 

                          (a)     facilitate the introduction of the minimum wage, including provisions to introduce pay statements, and to offer protection from unfair dismissal;

 

                          (b)     establish acceptable contractual minimum standards;

 

                          (c)     revise the Industrial Disputes (Jersey) Law 1956, as amended, as described in the said Report;

 

                2.       to charge the Committee to develop such further measures as may be necessary, as detailed in Part Three of the Report of the Employment and Social Security Committee dated 8th June 2000, to deal with the issues of -

 

                          (a)     the status and activities of trade unions in the Island;

 

                          (b)     redundancy, maternity, equal pay and equal opportunities and any issues regarding discrimination in the work place;

 

                          (c)     flexible working and family friendly policies and the protection of employees involved in business mergers and acquisitions.

 

 

EMPLOYMENT AND SOCIAL SECURITY COMMITTEE

REPORT

 

PART ONE

 

1.  The history

 

In 1997 the Employment and Social Security Committee (“the Committee”) took over responsibility for industrial relations from the former Industrial Relations Committee. In November of that year the States approved the Policy and Resources Committee’s proposition, which included action to be taken by the Committee to develop an industrial relations strategy.[1] In addition to this initiative, the Committee was also charged in that same debate with introducing minimum wage and maternity policies for the Island.

 

2.  The minimum wage and “Fair Play in the Workplace”

 

Minimum wage

 

In 1997 the Committee had already commissioned some research into the need for and the impact of a minimum wage policy in the Island. The result of that research and extensive consultation was placed before the States in a report and proposition that was debated in March 1999 (P.227/98). During the debate the States voted not only in favour of the introduction of a minimum wage policy but also the establishment of an ACAS style advisory and conciliation service to be known as the Jersey Advisory and Conciliation Service (JACS), supported by a Tribunal type service and a consultative body to be known as the Employment Forum. The draft for the Minimum Wage Law was subsequently sent to the Law Draftsman, who has indicated that the Law cannot be effectively implemented until such time as basic employment legislation supporting it and also a system to deal with its enforcement are in place.

 

“Fair Play in the Workplace”

 

The Committee responded to the request for improved employment legislation by producing a comprehensive publication, “Fair Play in the Workplace” (“Fair Play”), which was circulated Islandwide to inform the debate. This continued throughout last year with numerous consultative meetings and seminars. The publication aimed to -

 

                ·        promote modern employment relations practices in the Island;

 

                ·        outline the issues commonly affecting employers, employees and trade unions;

 

                ·        ask Islanders’ views as to whether or not change or improvement was needed in workplace practices to take the Island into the 21st century and beyond.

 

3.  The focus

 

Three clear messages were given in the Fair Play document and referred to throughout the consultation process. Those were that -

 

                ·        “The Committee firmly believes that fair play in the workplace is enhanced by a partnership approach underpinned by a legal safety net of rights, responsibilities and protections. Jersey cannot justify remaining one of the few states that denies its citizens such basic rights as protection from unfair dismissal and freedom from discrimination. At the same time we should not become as heavily regulated as some other states within Europe and elsewhere. A sensible balance needs to be struck.”[2]

 

                ·        “The purpose of the consultation process is to reach consensus in our society on a legal framework which will provide standards of decency and fairness in the workplace but not undermine the social and economic benefit that we have from a healthy economy and full employment.”[3]

 

                ·        “Jersey’s existing employment laws are out of date, fragmented and ineffective. There is a pressing need for a workable legislative framework which will reflect the Island’s particular circumstances and introduce rights and responsibilities both for employers and employees……. the employment relationship is now highly regulated and becoming more so, particularly in Europe. This poses a problem for small jurisdictions like Jersey which do not have the infrastructure required to support such legislation.”[4]

 

These statements present an enormous challenge and the task ahead should not be underestimated. The survey results and consultation showed that a large majority of Islanders want to see a new employment law in Jersey. It should be remembered however that other jurisdictions worldwide have taken 20 - 30 years to establish their infrastructures of employment legislation. Jersey cannot catch up overnight and nor would it be right for the Island to imitate the types of legislation found in larger jurisdictions.

 

When formulating these proposals the Committee has attempted to follow the guiding principles, as stated in Fair Play[5], that any new employment legislation -

 

                ·        is easily understood;

 

                ·        is effective in tackling the real problems;

 

                ·        supports cohesion in the workforce;

 

                ·        lays down clear standards of decency;

 

                ·        supports a competitive economy;

 

                ·        is affordable.

 

4.  Trends for the 21st century

 

Any new legislative structure has to be designed to suit the workplace of the 21st century. The following changes that are taking place in the workplace in Jersey and throughout the world were considered by the Committee when formulating these proposals -

 

Globalisation

 

Worldwide there is a definite move towards the internationalisation of corporate structures. Jersey already has many businesses with international connections and the widely divergent gap in the Island’s employment standards compared with that of other jurisdictions with whom the Island works is not easy to explain. For some, there may be attractions in setting up businesses in an unregulated environment. However, as has recently been seen in the Finance Sector, there is an expectation amongst OECD countries that the Island should apply decent standards in all its dealings.

 

Equally, as an island that relies on imported labour, the Island has to address the needs of those who come here to work from other jurisdictions, whether they be seasonal or employed on a longer term basis.

 

Redistribution of labour

 

There is a growing move away from traditional industries. Growth is generally apparent in the service industries such as leisure and finance, whilst there is a marked decline in manufacturing industries, which are becoming increasingly automated. Locally these have had their effect and there is little doubt that e-commerce developments will also have a considerable impact on the workplace.

 

Recruitment/Training

 

Growing importance is being given to recruitment and training procedures as these can prevent many problems from arising later in employment relationships.

 

Greater emphasis is also being placed on the training and development of staff. There is a recognition of the need to improve skills in all sectors as low skilled work diminishes, computerisation expands and global competitiveness increases. Most enlightened firms recognise that a sound industrial relations policy helps increase productivity and profitability.

 

Flexibility

 

There is an increasing trend in the need for both business managers and staff to be flexible in the way they work and approach their work. Such flexibility is reflected not only in the variety of arrangements now made concerning the hours that people work, but also in the changes caused and likely to be caused by the impact of information technology.

 

Female participation

 

The number of women in the workforce is increasing - Jersey already has the highest female participation rate in Europe.

 

Consultation

 

Increasingly, the need for consultation between all partners in the employment relationship is being recognised. Consultation fosters partnership within relationships and can help focus business direction, as well as being a considerate way of advising those to be affected by business change. Some jurisdictions make consultation between the parties obligatory in some business circumstances.

 

5.  The framework

 

In determining how best to establish the legal framework, the Committee has borne the following advice in mind -

 

                ·        take a step-by-step approach which adheres to an agreed agenda to give all parties time to prepare for change;

 

                ·        consult with all interested parties at each stage of the development of the legislation;

 

                ·        use codes of practice in conjunction with and supported by legislation (the use of codes of practice without a legal framework to support them is not likely to be effective);

 

                ·        use lay members in arbitration and tribunal procedures as such people can have broad background experience of the “local” workforce and a non-legalistic approach to the issues at hand;

 

                ·        choose suitable remedies that will be both workable and used when legal enforcement is required;

 

                ·        avoid heavy-handed legislation as it can have a detrimental and stifling effect. Small pieces of disjointed legislation can also be ineffective.

 

In the report that follows, the Committee is proposing a framework which sets minimum standards reflecting the views expressed during the consultation process as acceptable and representative of what might reasonably be expected as part of any working relationship in the 21st century.

 

Throughout the consultation process it was clear that Islanders wished to retain their freedom to negotiate their own contractual terms. Indeed that is the default position in Jersey law where the maxim “la convention fait la loi des parties” so long as “elles ne contiennent rien de contraire aux lois et aux bonnes moeurs, et qu’elles interviennent entres personnes capables de contracter” is still followed in the courts so far as contractual matters are concerned (i.e. the agreement made by the parties is binding upon them - so long as it contains nothing illegal or immoral and the parties themselves are legally capable of entering into a contract - Pothier.) In reality the benchmarks provided by the proposed legislation should provide a default position for those entering into an employment contract, but nothing should prevent the parties from negotiating their own better terms.

 

6.  Who is the legislation to protect?

 

Jersey has a wide selection of employers and working groups to which the new legislation will apply, and the Committee is aware of the need to assess the effect and workability of its proposals with each group. It recognises that careful consideration will have to be given to their likely impact as the details develop during the law drafting stages.

 

The Committee believes that it is important to continue its consultation with all concerned, and it has already established an Employment Forum made up of nine members representative of the community: three employers, three employee and union, and three independents, through whom consultative meetings will be arranged at which views can be expressed by all interested parties and organisations.

 

7.  “Fair Play in the Workplace”

 

“Fair Play in the Workplace” listed the following points for consideration -

 

                ·        terms and conditions of employment;

 

                ·        equality of opportunity and treatment, including discrimination;

 

                ·        maternity arrangements;

 

                ·        payment of wages and salaries;

 

                ·        termination of employment, including dismissal; redundancy and the transfer of undertakings;

 

                ·        flexible working practices;

 

                ·        advice, conciliation and enforcement ( the Jersey Advisory and Conciliation Service (JACS) and an Employment Tribunal);

 

                ·        trade unions and collective employment rights and obligations.

 

The sections which follow in Parts Two and Three of this Report demonstrate some of the thinking and reasoning that has evolved around each topic and which has led to the formulation of the proposals put forward by the Committee. The Committee has sought to satisfy the criteria it set itself in the Fair Play document[6] whilst also taking heed of the results of the Fair Play survey and the consultation meetings, the findings of its international research and the recommendations it received on what approaches did or did not work when establishing a new legal infrastructure.

 

In addition, the Committee believes that it is inevitable that the needs and desires of some sectors will be different to those of others. However, in drafting these proposals it has tried to balance those needs and to introduce the proposed legislation in a manner that will not be perceived as overtly favourable to any one group over the other. As stated previously, the Committee believes that the new legal infrastructure should lay down a set of legal minimum standards and safeguards for all involved in the workplace whilst not stifling the Island’s business economy.

 

8.  Summary of proposals

 

The Committee proposes that the new infrastructure should have four components -

 

                ·        a legislative framework that will set minimum standards by which all those in the workplace will be bound. The framework is intended to reflect common standards of decency and fairness on behalf of all parties to the employment relationship. It is intended to provide a sound basis of acceptable standards that will enhance and support the functioning of the Island’s business community as it moves into the 21st century. The legislation is also intended to promote discussion between the parties and discourage adversarial relationships;

 

                ·        an advisory and conciliatory service, to be known as the Jersey Advisory and Conciliation Service (JACS) which will be supported by an Employment Tribunal, in its work; (As has been stated previously the States have already approved the setting up of these bodies and proposals in connection with their establishment and functioning do not form part of this report.)

 

                ·        an Employment Handbook which will contain advice and guidelines on all aspects of the employment relationship; good practice and the effect of the new laws that are proposed. Where appropriate the guidelines will be referred to by those who ultimately work for JACS and the Employment Tribunal as evidence of what constitutes good practice. It is proposed that this document will be a “living document” which will be continuously monitored, reviewed and updated as required.

 

                ·        an Employment Forum consisting of nine representatives from employee and employer groups and independents.[7] The Forum has already been set up to be responsible for consulting all interested parties on all major issues in connection with the Minimum Wage Law and the new employment legislation. It will also be responsible for making recommendations to the Committee as a result of evidence and opinion received during its consultations. The Committee will have a duty to explain to the States why it has not followed the recommendations of the Employment Forum in any policy it brings forward to the States for debate if this is shown to be the case.

 

As far as the legislation framework is concerned, the Committee proposes that it be introduced in two distinct phases and within those phases the Committee is proposing that the legislation be introduced in further tiers. The phases will approximate with Parts Two and Three of this Report and are summarised below -

 

·              the first phase should have regard to the minimum wage legislation already approved by the States and therefore -

 

                (i)      include legislation relating to payment of wages issues and unfair dismissal (including protection from dismissal on pregnancy-related grounds) and the establishment of JACS and its supporting enforcement body all of which, as the Law Draftsman has said, will be fundamental to the efficient functioning of the Minimum Wage Law;

 

                (ii)     introduce legislation focusing on the contract of employment. Such legislation should emphasise the key rôle the parties themselves play in the negotiation of their own contracts and should establish the minimum standards that the Committee has recommended, such as one obligatory rest day per week and two weeks’ annual paid leave as well as the minimum wage;

 

                (iii)    introduce legislation to revise the Industrial Disputes (Jersey) Law 1956 in accordance with the proposals outlined on page 24 of this Report [nos. (a); (b); (c)] with the intention that an enhanced system of dispute resolution will result from the use of the Law and enable JACS to function more effectively.

 

·              the second phase should include measures as deemed necessary in dealing with the issues of -

 

                (i)      trade union;

 

                (ii)     redundancy;

 

                (iii)    maternity and equal pay and equal opportunities as well as all other discriminatory issues in so far as they have not already been dealt with or are to be dealt with by any other Committee;

 

                (iv)    flexible working and family friendly policies such as unpaid leave for domestic emergencies;

 

                (v)     employees involved in merger or acquisition situations.

 

For various reasons, some of which are listed below, the Committee does not think that it is feasible or necessary to address all the issues discussed in the Fair Play document coincidentally.

 

·              Firstly, it does not wish to overburden employers with new legislation, for it believes that change must be assimilated gradually if it is to be acceptable and workable and enforceable. The Committee also believes that there is a vital educative function to be performed if the proposed changes are to be implemented smoothly, and it proposes that the educative programme will run whilst the legislation is being drafted so that Islanders are well aware of the changes to be made, why they are being made and how they will impact.

 

·              Secondly, the Committee has to balance the likely resource and manpower implications of the proposed changes against the availability of such resources. However the Committee believes that it is of paramount importance that the new laws are monitored and enforced otherwise they will lose credibility. In addition, it wishes to avoid overburdening the JACS service as a result of too many issues being addressed at once.

 

·              Thirdly, the Committee believes that protection from discriminatory practices based on race and age may well be granted in the workplace as a result of new overall policies to be promoted by the Policy and Resources Committee. The Committee therefore feels that the prime responsibility for strategy and policy on all discriminatory issues should rest with the Policy and Resources Committee and that an overall approach, co-ordinated by that Committee, would achieve a better and more sensible result.

 

·              Fourthly, the Committee hopes that acceptable and decent contractual standards and good working practices will gradually become the norm without the need for overpowering legislation if the proposed new minimum standards and good practice guidelines are put in place, backed up by an effective dispute resolution system.

 

However, most importantly in the Committee’s view, the States have already approved the introduction of a minimum wage policy in the Island. The Minimum Wage Law will of itself be a major piece of legislation. The Committee has always maintained that the introduction of the minimum wage should be an integral part of the new employment law infrastructure. For example, some of the strongest messages received during the consultation period were requests to introduce pay statements and to afford protection from unfair dismissal. Accordingly, if legislation on all these issues is introduced as a priority Islanders will already have a considerable amount of new legislation to contend with. They will, however, see the introduction of legislation dealing with some of the key issues highlighted in the survey and minimum wage legislation which is long overdue.

 

PART TWO

 

Issues proposed for Phase One of the new legislation

 

1.  Terms and conditions of employment (pp.15-16; 52-54 Fair Play)

 

The contract

 

During the consultation period it became apparent that people still view the employment contract as the anchor of any employment relationship. It was often stated that the parties should be free to negotiate their own terms without government interference and that the better use of contracts would ensure greater clarification of both the employer’s and the employee’s rights and responsibilities. There was a conviction that if better enforcement procedures existed then more could be achieved through the use of contracts alone without the need for weighty legislation.

 

As a result of the international research it carried out, the Committee learnt of the particular emphasis given to the rôle of the contract in New Zealand employment legislation. The New Zealand Employment Contracts Law 1991 emphasises the importance of the parties’ freedom to negotiate their own contract terms, subject to some statutory minimum standards (e.g. holiday pay). The Committee believes that an approach similar to that adopted in New Zealand is one that Islanders would find acceptable. It would satisfy the wishes of those who emphasised the need for individuals to retain the right to negotiate their own contractual terms, but it would also allow for minimum standards to be set in law. This approach appears also to marry well with both the Jersey customary law maxim referred to earlier and the States decision to approve a minimum wage policy. (The setting of minimum contractual standards in law is not in itself uncommon - the setting of a minimum wage, for example, is the setting of a minimum standard.)

 

In the following two paragraphs the Committee proposes two other minimum standards that it considers desirable for Jersey.

 

Provisions for a weekly day off and paid annual leave

 

It is quite clear that anyone working excessive hours will not perform to the best of their ability and indeed accidents may occur. The Committee therefore recommends that every person be entitled to one rest day per week. Provision for this should be included in the contract. The Committee appreciates that for some groups alternative provisions may be necessary, for example for part-time workers who work seven days per week or shift workers on seven-day shifts.

 

However the principle of officially allowing for rest time on a weekly basis should be recognised. The Committee does not propose that the day be specified in law, though most contracts would probably include Sunday as the rest day. The law would have to allow the contracting parties some flexibility, especially as many jobs require Sunday working and different religious beliefs recognise different holy days.

 

In addition, the Committee believes that all workers should be entitled to a minimum of two weeks’ annual paid leave, such leave to be taken on a pro rata basis if a period of less than one year is worked.

 

Review procedures

 

It is widely acknowledged that some form of procedure is needed in the workplace to address situations where work-related issues of concern to either party arise. Such procedures are usually termed “grievance” or “dismissal” procedures. The Committee is of the view that all employers need to have review and consultation procedures as a matter of good employment practice, and accordingly a clause referring to the employer’s review procedure should be included as a minimum standard in the employment contract. The Committee does not propose to dictate the form of procedure to be followed. It recommends only that it will be necessary for an employer to establish a fair review procedure that is workable for the size and type of business concerned and will enable either party to address issues of concern in a reasonable manner. A failure to follow a fair review procedure will be a factor that will be taken into account when assessing whether any action taken was fair. The Committee does not propose to introduce detailed legislation on review procedures and consultation requirements, but advice on the setting-up and use of different forms of procedure appropriate to the size of business and on the use of consultation procedures will be provided in the Employment Handbook.

 

The Committee intends that conciliation will be available through JACS when review discussions break down, as there is evidence to prove that conciliation can radically reduce the number of claims brought to a tribunal. For example, in Spain, the number of unfair dismissal claims settled by conciliation is estimated to be between 60 per cent - 70 per cent.

 

2.  Payment of wages and salaries (pp.28-30; 51 Fair Play)

 

The methods by which workers are paid have grown in complexity over the years. The Payment of Wages (Jersey) Law 1962 was designed to ensure that workers received the full benefit of their wages.

 

Currently Jersey law does not require an employer to issue an employee any regular, standardised record showing how his or her pay is calculated. In order that employees know how their pay is calculated, the Committee is proposing that a pay statement should be mandatory and should include details of -

 

                ·        the gross amount of the wages or salary;

 

                ·        the amounts of any fixed deductions and the purposes for which they are made (e.g. social security; pension);

 

                ·        the amounts of any variable deductions and the purposes for which they are made;

 

                ·        the net amount of the wages and the salary payable (including details of a bonus; profit share; overtime);

 

                ·        the method of payment (e.g. paid in cash; bank standing order);

 

                ·        the pay reference period.

 

There was a call for specific legislation to deal with the issue of unauthorised deductions from wages during the consultation period. The issue of guarantee payments (whereby a worker is entitled to receive a fixed level of remuneration when he is contracted to be at work but there is no work) also received support during the consultation period, though to a lesser extent. The Committee believes that such issues, along with specific provisions dealing with cash shortages in the retail industry, will need to be addressed in conjunction with the minimum wage proposals for, without clear legal guidelines concerning them, that Law will not function effectively. (e.g. An employee may not be able to calculate whether he has received the minimum wage if his employer is not obliged to give him a detailed pay statement.)

 

3.  Termination of employment (pp.31-36 Fair Play)

 

There are several ways in which a contract of employment can be terminated. Everyone is familiar with the concept of notice provisions in a contract which enable either party to end the employment contract upon the giving and serving of the relevant notice. However, employment contracts can also be terminated both fairly and unfairly; by reason of redundancy and as a result of company mergers or acquisitions. No legislation exists in Jersey dealing with redundancy and unfair dismissal, and only limited protection is given in transfer and merger situations.

 

Termination in accordance with the contractual notice period (p.32 Fair Play)

 

The minimum periods of notice to be given by employers or employees to terminate an employment contract under the provisions of the Termination of Employment (Minimum Periods of Notice) (Jersey) Law 1974 are roughly comparable with those of the United Kingdom and the Isle of Man, but on balance considerably better than those in Guernsey. The Committee does not therefore propose any changes to the current provisions regarding termination of notice periods.

 

Unfair dismissal ( pp.32-34 Fair Play)

 

The consultation period showed that the need for legislation offering protection from unfair dismissal was considered a very high priority. The Committee has been advised by the Law Draftsman that such legislation is needed in order to support the enforcement of the forthcoming minimum wage legislation. It is also needed to underpin both current and future legislation relating to employment issues.

 

If trends elsewhere can be relied upon, it is anticipated that many more claims will be brought on the ground of unfair dismissal than on any other issue.

 

The Committee acknowledges that there are some recognised circumstances in which dismissals should automatically be treated as unfair and it proposes that these be specified in the law. For example dismissal on the grounds of union membership or activities, and pregnancy or pregnancy-related issues, are normally accepted as automatically unfair. In contrast the dismissal of a temporary employee recruited on a short-term contract to do the job of someone on maternity or extended sick leave, or a dismissal on the grounds of misconduct or incompetence can, depending on the circumstances, be regarded as fair. The Committee proposes that any such legislation should be supported by good practice guidelines to be contained in the Employment Handbook.

 

After much consideration, the Committee has taken the view that an unfair dismissal is unfair whenever it occurs, and accordingly it does not propose to recommend that a qualifying period be served in unfair dismissal situations.

 

Penalties

 

The Committee wishes to emphasise the importance to be attached to the decision that must be taken on the type of penalty or sanction to be levied in cases where an unfair dismissal is proven to have occurred. Two very different approaches can be used by way of alternative solutions -

 

In unfair dismissal cases the United Kingdom system grants a discretion to members of Employment Tribunals to make compensatory awards to individuals who are found to have been unfairly dismissed. As a result of recent changes to the United Kingdom law, the maximum award payable to any one individual has been increased to £50,000 with effect from 25th October 1999. It should be noted that the compensation ceiling cannot be exceeded. Debate over the extent to which a dismissal is unfair can become lengthy and costly in terms of both court efficiency and legal representation, as the parties seek to prove the reasonableness of their respective cases.

 

By way of comparison, Guernsey has adopted a simpler approach to the unfair dismissal issue which, although limited, is perhaps a clear-cut way of dealing with the issue in a small jurisdiction. The Employment Protection (Guernsey) Law 1998, which came into effect in January 1999, introduces the concept of unfair dismissal into the Bailiwick. Under the law, unfair dismissal cases are heard by a sole adjudicator. If the adjudicator decides that an unfair dismissal case is proven, the compensation payable to the employee is fixed at a rate of three months of the employee’s salary. There is no additional award to reflect the number of years’ service completed by the employee, but this sum is paid in addition to any monies owing to the dismissed employee under his contractual notice provisions. There is no appeal based on the decision unless it is on a point of law, and by virtue of the fixed penalty system the level of compensation payable is not affected by any argument as to the reasonableness of the claim.

 

The Committee proposes that a system offering a fixed penalty sanction based on a multiplier of an employee’s monthly salary be introduced so far as all forms of unfair dismissal are concerned, with an additional award to be made based on a fixed scale relating to the number of years’ service completed by an employee. The Committee accepts that this course of action, as in Guernsey, will not allow for debate as to the level of the compensation based on the reasonableness of the claim, but it will take recognition of an employee’s length of service. It is proposed that any such awards would be in addition to any monies due to the claimant under his contractual notice provisions. (i.e. someone who was unfairly dismissed and who had an agreed one-month notice period and had worked for two years for the company would be entitled to a total of four month’s salary (one month’s contractual notice pay and the three months’ unfair dismissal award) plus the scale payment for longevity of service).

 

4.  JACS/Employment Tribunal (pp.43-44 Fair Play)

 

The States agreed at the time of the debate on the minimum wage proposition that an independent advisory/conciliatory/enforcement system should be established. The Committee has been researching the various approaches in other jurisdictions that have been adopted, with the intention of setting up the JAC’s service this year.

 

There can be no doubt of the importance of the rôle of both advisory and conciliation services at all stages in the employment relationship, whether advice be sought prior to the drawing-up of a contract, during its existence or after its termination, or just generally in relation to good employment practice.

 

The rôle to be played by JACS’ enforcement body is equally important. Lack of enforcement of the Island’s current employment legislation was seen as a major concern in the Fair Play consultation exercise. It should be remembered that the majority of all claims arising out of employment issues will be heard through the JACS system and its enforcement body, and not through the court system. It is envisaged that appeals will be heard by the Royal Court only in specific circumstances.

 

It has been recognised that this new service will be able to operate more effectively if the current Industrial Disputes (Jersey) Law 1956 is revised as part of an enhanced dispute resolution system in which JACS would play a major part[8] and this has been discussed more fully in the next sections.

 

The Committee is concerned to encourage resolution of disputes at all stages between the parties, supported where necessary by JACs. It may be that if legal representation were to be allowed at Employment Tribunal hearings, the Tribunal members would not be granted the power to award legal costs to anyone so represented. This approach was adopted by the Guernsey authorities when they set up the framework for the hearing of unfair dismissal claims in the Island’s new Employment Protection (Guernsey) Law 1998, and the Committee believes that it would be one way of trying to ensure that the Jersey system operates as quickly and straightforwardly as possible. During the consultation period, the Committee received pleas that it avoid creating a legal framework that would give rise to a “lawyer’s charter”. The Committee is aware that many companies and individuals already seek legal advice on the drafting of their contracts of employment, for it is generally known that there is little employment legislation in the Island and many people check to see what provisions are in place and seek help drafting their contracts accordingly. The Committee acknowledges that any new legislation will give rise to greater consideration of all employment issues, but advisory services will be available through JACS.

 

It is obvious that there is a resource implication to be considered if the JACS/Employment Tribunal system is to work efficiently, and if any laws that are introduced are to be enforced and respected. This matter was addressed in the proposition and report on the minimum wage that went to the States and is referred to later in this document. However, the experience of Jersey’s Industrial Relations Officer and that of ACAS style bodies in other jurisdictions suggests that a professional advisory/conciliation service is a worthwhile investment. It was also apparent from the Fair Play consultation that Islanders want to see an increased advisory and conciliation service with a supporting enforcement body in place as soon as possible. The Committee therefore proposes that the work of the Industrial Relations Officer should be absorbed by JACS and that the