The Law on trade unions, industrial
disputes and collective bargaining in the Channel Islands
Andrew Cross
This article seeks to outline
the development of the law on trade unions, industrial disputes, and collective
bargaining in the Channel Islands from 1771 until the present day. Previous
contributors to the this Review such as Cavey, Ferbrache, Malorey and Roland
and Milner have addressed individual labour law aspects, but any consideration
of the collective aspects of labour law is largely absent. This article is
written in an attempt to redress that gap in the published literature.
Introduction
1 This article seeks to outline the
development of the law on collective industrial disputes in the Channel Islands from 1771 to the present day. Cavey,
Ferbrache,
Malorey,
Milner and Roland,
writing previously in the Jersey Law
Review, Guernsey Law Journal and
the Jersey and Guernsey Law Review have
each considered aspects of individual labour law in the Islands, but not the
Islands’ collective labour laws, the roots of which, in Jersey at least,
go back to the Code des Lois de 1771 [or, as it is known in Jersey, the
Code of 1771].
2 A helpful description of the law
relating to collective bargaining is provided by Ewing & Hendy—
“Trade
union legal rights are vital to collective bargaining. The purpose of a trade
union is to defend and advance its members interests, especially at work. By
doing so, of course trade unions defend and advance the interests of the
working class. Unions fulfil that purpose in many ways (e.g. by promoting legislation, by serving on governmental and joint
bodies) but the most important and most fundamental of all is through
collective bargaining. In order to achieve effective collective bargaining,
trade unions need trade union rights.”
Jersey’s
industrial relations laws 1771–1946
Historical background—the Code of Laws
of 1771
3 Following conflicting reports of
serious political unrest in Jersey, in 1769 the King of England sent Colonel
Rudolph Bentinck, a Dutchman, with five companies of soldiers, to restore order
and appointed a Royal Commission to investigate the situation and codify the
Island’s laws. The result of the latter was the Code of 1771.
Unfortunately (for any prospective future trade unionists at least), the Code
of 1771 provided as follows—
“Réglemens pour ouvriers et personnes
de métier. Les personnes, soit Ouvriers ou Gens de Metier, qui
comploteront ensemble a l’égard de leurs salaires, des heures du
travail, ou de la manière de le faire ou de le rendre, seront punis par
amende qui n’excédera point vingt livres, applicable comme dessus
est dit; & en cas de recidive, de telle punition qu’il sera
trouvé appartenir.”
[“Regulation
for workers and tradesmen. All persons whether workers or tradesmen who combine
together in relation to their wages, hours of work or the working conditions
under which they work, will be punished by a fine not exceeding twenty livres tournois, as stated above, and,
on a recurrence, to such punishment as shall be found to be appropriate.”
4 The prohibition of combinations of
workers in the Code of 1771 had its parallel in England and Wales with the
Combination Acts of 1799 and 1800 which effectively criminalised workers’
organisations in all trades and occupations. In that legislation—
“a penalty of some three months’ imprisonment was
specified for those who formed an association of workers that had the purpose
of raising pay, reducing hours or interfering in any other way with an employer’s
business or the employment of workers.”
5 Following the passing of the
Combination Laws Repeal Act of 1824, workmen took advantage of their new
freedoms, but a number of cases of violence occurred. Accordingly, in 1825 a
Parliamentary Select Committee recommended new legislation as a compromise
between the demands of the masters to return to the old laws of 1799–1800
and the aspirations of the workers to use their new freedoms since repeal. One
of the purposes of the 1825 Combination Act was to confine the objects of
association—
“to those objects alone which are essential to the protection
of both the workmen and the master, and may be secured without impairing the
freedom of either, or endangering the public tranquillity.”
6 In other words, the activities of
trade unionists were to be limited strictly to negotiations over wages, and
other action, particularly the refusal to work with non-union men, was to be
illegal. The Combination Act 1825
thereafter made combinations legal.
Trade union developments in England—Tolpuddle
Martyrs 1834 & Combination Act 1825
7 In England and Wales, even though the
Combination Act 1825 had made the fact of combinations prima facie lawful, a complicated series of statutes related to
unlawful oaths was then used instead to prevent the formation of trade
societies. Whilst the Unlawful Oaths Act 1797 had not been aimed at trade
unions per se, but rather at naval mutinies, the prosecution of six Dorset farm
labourers (who came to be known as the Tolpuddle Martyrs) under that statute
and their subsequent sentence of transportation to Australia reveals the
lengths to which some in England and Wales were prepared to go to suppress
combinations of workers. In
England and Wales, it would take nearly half a century before trade unions were
effectively “de-criminalised” by the Trade Union Act 1871.
Early trade union developments in the Channel
Islands 1886
8 It was not until 1886 in Guernsey that the first stirrings of a nascent
trade union movement began with the quarrymen. A Guernsey Stone Crackers’
Union was formed to defend the interests of the Island’s quarrymen. In
1890, the Guernsey Stoneworkers Society was formed and shortly after its
formation, union members went on strike for better conditions in August 1890.The
apparently successful strike lasted for some nine days from 21–30 August
1890. A Reverend Canon Foran
eventually addressed the crowd of strikers on the Common—
“Men, you know that your wives
and children need food and shelter. No good can come of your holding out. Take
my advice and go back to work.”
9 The men duly took the Reverend Canon
Foran’s “advice” and returned to work. It was difficult for
workers to live and pay their way in the Channel Islands of 1890, but for the
time being, no other workers “dared” to form a trade union in the
Islands. By 1911 the Guernsey Stone Crackers’ Union had been superseded
by the formation of a Guernsey branch of the English United Union of
Quarryworkers and Settmakers.
10 Meanwhile in Jersey, in 1914 the
Ronez Quarrymen decided to form a Jersey branch of the English Amalgamated
National Union of Quarryworkers and Settmakers. However with the outbreak of
World War 1, the quarrying unions and the local Independent Labour Party branch
(established in 1911 or 1912) collapsed, leaving Jersey without any labour
organisation for the remainder of the Great War.
11 In 1917 Jersey’s building and
allied trades masters formed a new Federation to guard their interests. The
Federation called a meeting of the masters and men to discuss wages. A new
wages’ table proposed by the Federation met with much opposition on the
part of the men. The local newspapers reported that the men had been offered a “handsome
increase”, though it is to be noted that the UK Ministry of Labour had
estimated that the cost of living had in fact risen by 98 per cent. The lack of
workers’ organisations resulted in the protests of the workers being
ignored and the Federation’s plans being carried through.
12 Norman Le Brocq, a member of the
Jersey Communist Party and later a States of Jersey Deputy, argues that the
explanation for this in the Jersey society of 1917 was fairly simple, in that
in those days there was still no large-scale industry or other large employers
in the Island. As he put it—
“the Jersey worker had a brother who kept a small shop or an
uncle who owned a farm or perhaps a cousin who was a master carpenter. When
times were bad, [he] could go and work for his Uncle! ... The Jersey worker,
even more than the English worker, had the mental outlook of the bourgeoisie. He
was very far from being class-conscious.”
Jersey
Labour unrest in the aftermath of World War 1
13 The Transport and General Workers’
Union (“TGWU”) first established a presence in the Islands as the
Dock, Wharf, Riverside and General Workers’ Union, in Jersey on 23
September 1918 and in Guernsey some time before this. By the end of 1921 the
TGWU was reported as having some 5,000 members in Jersey.
14 From the outset, there was a Jersey
reaction to this linkage with an outside union. On 2 December 1918, an Evening Post leader column called for an
exclusively Jersey trade union to be formed—
“Jersey
labour is not yet organised … There is no doubt the time has arrived for
a properly constituted labour organization composed of all classes of workers
and having accredited representatives or officials with whom authority can
confer or consult. Such a labour organization ought to be exclusively ‘Jersey.’
That is to say, whilst maintaining the brotherly relations with labour
elsewhere, it should recognise the conditions and special factors which
distinguish us as an Island and as workers.”
15 A later anonymous correspondent to
the Evening Post replied—
“You say
it should be exclusively Jersey. Why so? I think it is more desirable that it should
form part of some properly organised Union from the mainland. It is understood
that the conditions here [in Jersey] are different to those in England, but
they can be greatly improved … What is wanted is: Fairness between
masters and men; a liveable wage for all; and better housing accommodation.”
16 This exchange of views makes the
fundamental point that Jersey already had in existence a properly constituted
labour organisation—namely the Dock, Riverside and General Workers’
Union—which union catered for all classes of workers—skilled or not—in
both town and country with all the benefits that a well organised UK body could
provide, thus demolishing the argument for an exclusively “Jersey union”.
Organisation
of Labour (Jersey) Bill 1919—Deputy F.J. Bois’ Bill
17 The early weeks of 1919 saw the
publication of an anti-union Bill by the Deputy for St Saviour, Deputy Francis
Bois. On 14 January 1919 his “Projet de Loi Touchant les disputes entre
patrons et employés” [Draft Law on disputes between employers
and employees]
was presented to the States of Jersey. A full
English language translation of this Bill was published in the Evening Post on 15 January 1919.
18 The Bois Bill purported to provide “machinery
for dealing with any “difficulties” that may arise between
employers and employees”, but, however benign the supposed motivation of
Deputy Bois in bringing his Bill to the States, certain States members were
reported to have said that he and his supporters were really out to “smash
the union”.
19 In support of his Bill, Deputy Bois
claimed that “it would establish just relations between employees and
employers and fair wages” in Jersey, would give “freedom to every
man to deal with matters of interest to himself” and at the same time “protect
him from outside interference”. However, the “freedom” being
promised was a questionable one for the individual Jersey worker since it
lacked a collective organisation to protect him or her.
20 In the States debate on the Bill,
Deputy Bois claimed, no doubt with the Dock, Wharf, Riverside and General
Workers’ Union in mind, that it was—
“a criminal and wicked thing for third parties to interfere
and foment discontent and that there must be “legal protection”
against this risk.”
21 The Constable of St Helier,
seconding the Bill, was reported to have said that—
“… in the subject of labour, employers and employees must be
placed on exactly the same footing and the Bill would ensure that. He hoped
that its adoption would mean that in future there would be none of those
strikes so disastrous to the employees. It was not a question of sending wages
up to a figure that would ruin the employer, but of protecting the interests of
both sides.”
22 Whilst the Bois Bill did allow for
trade unions to be formed (art 1) and for all workers to have the right freely
to join such a union, somewhat unfairly art 5 then added a “sting in the
tail” in that it concurrently sought to criminalise any effective
industrial action being taken by local union officials at all—
“… any
third party who shall interfere to prevent an agreement or aggravate a
difficulty between masters and employees and also any person who shall attempt
to promote strikes or lockouts in an industry trade or undertaking of any kind
or who shall attempt to bring about a crisis in regard to labour or employers
or who shall attempt by means of intimidation or otherwise to compel another
party against his will to join or not to join a union either of labour or of employers
shall be guilty of an offence and shall be liable for each infraction to a fine
not exceeding £100 or to a term of imprisonment with or without hard
labour not exceeding six months or both at the discretion of justice.”
23 This would mean that any local union
shop steward seeking to reach a settlement in favour of the workers under those
conditions would always be doomed to failure. No attempt could be made by a
Jersey worker to consult their Union headquarters in England, for that would be
introducing interference of “a third party”, and no attempt to “promote
a strike” would be allowed. Accordingly, any locally employed shop
steward in Jersey would soon find him or herself effectively victimised.
24 The Bois Bill was later quickly
dropped when it met with a storm of disapproval in the Island. The status
quo remained and therefore, for the time being in Jersey, trade unions were
to remain illegal due to the continued existence on the Jersey statute book of
the Code of Laws 1771.
Jersey
strikes (1919–1925)
25 In April 1920 Deputy Bois called a
meeting of Union officials at the Bailiff’s Chambers, and in the presence
of the Bailiff, still Sir William Venables Vernon, he referred the Union to the
provisions of the Code of 1771 declaring Unions to be illegal. At this time,
the Union delegates were in dispute with the Jersey Produce Merchants
Association, refusing to accept their pay offer, and the Bailiff warned them
that they left with the “shadow of arrest hanging over them.”
26 A number of other industrial
disputes took place in Jersey during this time, the most notable of which,
according to Le Brocq, were the Dockers’ lightning strikes (1919), the
Grandins Ironmongers & Founders’ strike (1919), the Bashfords Growers
Ltd’s strike (1919), the Piers and Harbours’ strike (1919), the
Police Officers’ strike (1919), the Tailors’ Strike (1919), the
National Union of Railwaymen’s strike (1919), the Gas Workers’
dispute (1921), the JW Huelin Dockers’ dispute (1924), and the petrol
carters’ dispute (1925). Le Brocq records that a further Bill was tabled
in the States of Jersey in March 1922 aimed at the compulsory arbitration of
trades disputes. Voting was 20 for the Bill and 20 against and the Bailiff
refused to use his casting vote and the Bill was dropped.
Jersey
and the UK general strike 1926
27 In the immediate post World War 1
period, there was an atmosphere of trade union stagnation and decline which was
largely due to the lack of local leadership. Jersey workers heard the call of
their UK-based union leaders to take part in the 1926 UK General Strike. In the
UK, Sir John Simon (Lord Chancellor) declared the 1926 General Strike to be
illegal. Similarly in Jersey, the States of Jersey warned workers that any supportive strike action locally would
amount to a criminal offence under the Code of 1771.
28 Whilst in the United Kingdom, the
collapse of the 1926 General Strike may well have amounted to a serious
set-back in the fight to secure trade union rights, in the Channel Islands it
almost amounted to a death blow—coming as it did on top of a general
feeling of frustration of the rank and file union membership and following a
reported stagnation in local TGWU affairs.
The
appointment of a resident trade union official in the Channel Islands and the
repeal of the anti-union provisions in the Code of 1771
29 In 1937 the Southampton Area
Headquarters of the TGWU sent a young Mr Edward Hyman to reside in Jersey as
the first permanent official of the Union in the Channel Islands. However, at
an early meeting with the Jersey Attorney General (Mr Charles Duret Aubin), Mr
Hyman was warned of the prohibition in the Code of 1771.
30 Unperturbed by these “words of
welcome” from the Attorney General, Mr Hyman soon gained the sympathy of
two States of Jersey Deputies (Edward Le Quesne and Philip Richardson) who
argued that the offending provisions of the Code of 1771 should be repealed as
no longer reflecting modern conditions and should be replaced by legislation
based upon current standards and requirements. It took time for opinions to
change, but eventually this view was unanimously accepted by the States
Assembly and relayed in 1939 with advice from the Attorney General to the Home
Office—
“We are
satisfied that it is in the public interest that there should be removed from
the Statute book legislation such as this—legislation which is completely
out of date and, in most respects it is more honoured in the breach than in the
observance—and we are therefore of the opinion that the Act is one of
which His Majesty may properly be advised to approve.”
31 The offending passage from the Code
of Laws 1771 prohibiting trade union activity was duly removed from Jersey’s
statute book by the Loi abrogeant les
dispositions du Code des Lois de 1771, sous le titre de “Reglemens pour
ouvriers et personnes de metier 1939 [Law repealing the provisions of the
Code of 1771, entitled “Regulations for workers and tradesmen”].
The German
Occupation 1940–1945
32 The German occupation of the Channel
Islands commenced in late June and early July 1940. Prior to their arrival, the
TGWU recalled Mr Hyman to England for the duration of the war. Just before his
departure, Mr Hyman left the local TGWU District Committee with full delegated
powers. However, by 2 September 1940, the District Committee had taken the
decision that it should be dissolved. All Union business was suspended
indefinitely.
33 In any event, just two months later
on 4 November 1940, the German authorities in both Jersey and Guernsey issued
an order dissolving all societies (to include all trade unions). When some of
the less scrupulous Jersey employers saw that the TGWU was now defunct,
according to Le Brocq, they began a vicious attack on the workers’
standard of living, such that, by the end of 1940, wages had been cut in
practically every branch of industry. These cuts varied from the suspension of
war bonuses to drastic cuts of up to 40% of existing wages. By the beginning of
1941 this began to produce local unrest, as shown by the chalking up on walls
of slogans such as: “Workers’ wages must keep pace with prices”,
and “The workers need food—search the houses of the rich hoarders”.
34 By April 1944,
local workers had begun to reorganise their Union, albeit illegally. On 26
August 1944, a meeting was called in Jersey somewhat belatedly to protest
against the decision to dissolve the local TGWU in 1940. Members of the gas
workers, building trades, storemen, dockers, waterworkers and general workers’
branches of the TGWU were present and it set up a provisional organising
committee to revive Union activity. The
Channel Islands were liberated by British forces on 8-9 May 1945.
Jersey’s
industrial disputes laws (1947–2007)
Industrial Relations and Trade Disputes Act
1947
35 In the
aftermath of Liberation, on 24 January 1947, the States of Jersey Legislation
Committee set up a Sub-Committee to review and report upon the whole field of
workers’ conditions and industrial relations. On 28 January 1947, the
Sub-Committee recommended the creation of a “Joint Advisory Council on
Industrial Relations.” On 18 March 1947 the Sub-Committee’s report
and a draft Act (“Relations
professionnelles et controverses industrielles” [Industrial Relations
and Trade Disputes]) was lodged “au
Greffe” to enable Parish Constables to consult their parishioners on
its contents.
On 13 May 1947 the States of Jersey’s minutes record that they adopted the
recommendations contained in the Act of the Legislation Committee. It
is to be noted that the Act was a piece of subordinate legislation.
36 The Act
established the Joint Advisory Council which was to consist of eight members—two
employers from the Jersey Employers’ Federation, four representing the
TGWU, one representing the Public Utilities and one representing the
non-federated employers. Edward
Hyman, the now returned TGWU Channel Island official, became one of the TGWU
representatives. The functions of the new Joint Advisory Council were to
consider terms and conditions of employment and all such other matters
affecting employers and employees in their industrial relations; to act on all
matters under dispute between employers and employees when required to do so
and, if necessary, to set up [Industrial Disputes] Tribunals for the settlement
of disputes or to refer them to arbitration.
37 The Act of the States of 13 May 1947
regarding Industrial Relations and Trade Disputes was referred to in the States
debate on 29 April 1953 when additions to the text were proposed.
These were approved and added a quorum requirement for meetings and provisions
for the Council’s expenses.
38 As we shall see, when compared to
the parallel Guernsey legislation, (also passed in 1947), it can fairly be said
that Jersey’s 1947 legislation was somewhat skeletal.
Industrial Disputes (Jersey) Law 1956
39 Given the economic difficulties
following the departure of the Germans and the large number of returning
locals, both members of the military and refugees, many of whom brought with
them experiences of elsewhere and aspirations of a fairer society, Jersey was arguably
fortunate that it had seen no major industrial turmoil in the immediate
post-Liberation years.
40 It is likely that this absence of
industrial disputes, perhaps assisted by the Joint Advisory Council, explains
why no further legislation on the subject was introduced until 1956. In any
event, the Industrial Disputes (Jersey) Law 1956 sought to set up machinery
under which industrial disputes could be settled by “regulated
arbitration”.
41 In the States debate on the Law,
Deputy JJ Le Marquand observed that he viewed the draft law with a certain
amount of “fear”. He believed it would give the main Island union
(the TGWU) “status” and would be “trouble”. In
contrast, Deputy Charles (or “Pat”, as he was known) Rumfitt saw
the importance of the measure as providing machinery “in case of
emergency”. Deputy Cyril Le Marquand stated that the Bill was “a
safeguard for both sides”. Deputy Wilfred Krichefski said the Island was—
“not isolated from the United Kingdom regarding trade union
disputes as the Island was still dependent on the United Kingdom for all goods
imported and exported.”
42 The Industrial Disputes (Jersey) Law
1956 was eventually passed by the States on 18 May 1956. The
final version of the Law made provision for the settlement of industrial
disputes and for regulating conditions of employment. Article 1 defined the
meaning of “industrial dispute”, with certain exclusions, as “any
dispute between an employer and workers in the employment of that employer connected
with the terms of the employment or with the conditions of labour of any of
those workers”. Article 2 provided for the appointment of an “Industrial
Disputes Officer”. Article 3 provided for the constitution of the “Industrial
Disputes Tribunal” (which is set out in a schedule to the Law). Article 4
provided that where such a dispute existed and was reported to the Industrial
Disputes Officer it should be dealt with in accordance with the subsequent
provisions of the 1956 Law. Article 7 related to steps the Industrial Disputes
Officer could take to promote settlement. Where there existed “suitable
machinery” aimed at resolution of disputes which had not yet been
utilised, the Industrial Disputes Officer was directed by art 8 to refer the
dispute to it. Article 9 provided that where an agreement had been reached by
the parties to a dispute utilising that machinery, “such agreement shall
be treated as constituting a final settlement of that dispute”. Article
10 provided that the Industrial Disputes Officer should, if the dispute has not
otherwise been settled, refer the dispute to an Industrial Disputes Tribunal. Article
11 provided that where an issue had been referred to the Industrial Disputes
Tribunal, the Tribunal could by its award require the employer to observe the
recognised terms and conditions of employment applicable to the case. Article
12 provided that where the Tribunal had made an award on a dispute or issue, it
should be an “implied term” of the contract between the employer
and the workers that the terms and conditions of employment would be performed
in accordance with that award.
Shortcomings of the Industrial Disputes
(Jersey) Law 1956
43 The Industrial Disputes (Jersey) Law
1956 did, however, have a number of shortcomings. One of the most serious was
that the procedure for the resolution of disputes did not apply to “individual
employees” who were in dispute with their employer—it applied only
to “collective” employment disputes. Also, the 1956 Law required
that the Industrial Disputes Officer (and his or her Deputy) must both be
States Members who would administer the complaints process and then refer it to
the Industrial Dispute Tribunal. By contrast, since 1993 the position in
Guernsey is that there is a statutory bar on elected States members serving in
these positions. The
Industrial Disputes Tribunal was to comprise a legally qualified Chairman
sitting with two representatives drawn from each of three panels representing
employers, employees and independent appointees. This
promised a laudable balance of interests, but in fact it only met infrequently.
The first formal acknowledgement of any shortcomings in the 1956 Law came in
1969, when a new States Industrial
Relations Committee was charged with the responsibility of preparing
legislation to replace it.
However, such a replacement was not to take place for a further 38 years. This is yet more evidence (if such
were needed) of the “glacial pace” of the development of collective
employment legislation in Jersey.
Senator
J.J. Le Marquand’s proposition to ban the closed shop in the Jersey
public sector 1960
44 The moral justification for the
existence of the “closed shop”, a place of work where all employees
must belong to an agreed trade union, had consistently been a matter of
controversy in UK industrial relations throughout the post-World War 2 period.
The opposing views pitted those supporting the freedom of the individual to
join a trade union or not against the emphasis of trade unions on the
principles of “collective job security” and their opposition to the
“free-rider” principle, that is non-union
member employees who nonetheless benefitted from union activities. In
Jersey, the dilemma of the “closed shop” could not simply be solved
by saying that, if there was a right to be a member of a trade union, there
must be an equivalent right not to be a member of a trade union, because the
underlying policy of the Industrial Disputes (Jersey) Law 1956 was to promote
collective bargaining, and whilst this would be facilitated by the former, it
would not be achieved by the latter.
45 In the context of this conundrum, a
dispute broke out in Jersey in early 1960 between the States Sewerage Board and
the TGWU about the latter’s demand for a “closed shop”. On 27
January 1960, now Senator JJ Le Marquand lodged a proposition before the States
seeking a declaration to the following effect—
“The
States have determined that under no circumstances whatever will any person in
its employ be dismissed from or coerced into leaving his or her employment
merely by reason of his or her refusal to become a member of a trade union”
46 This anti-union proposition was
arguably in the same Jersey “backwoodsman” tradition as Deputy Bois’
Bill of 1919. Again, however, the majority of States members was not with him.
On 22 March 1960, Deputy Le Cocq, President of the Manual Workers Employment
Committee, presented to the States a joint agreement it proposed to enter with
the TGWU, which in effect approved the principle of a “closed shop”,
once a threshold of 85% of workers in the relevant States’ department had
joined the Union. On
6 April, the States approved the agreement, 30 to 19.
Jersey Advisory and Conciliation (Jersey) Law
2003
47 In 1997, the Employment and Social
Security Committee took over responsibility for industrial relations from the
former Industrial Relations Committee. During a legislative debate in 1999, the
States voted in favour of establishing a UK “ACAS” style body,
which would be supported by a Tribunal-type service in the form of the Jersey
Employment Tribunal (“JET”) and also a consultative body to be
known as the Employment Forum, as had been proposed in the 1998 States’
discussion document “Fair Play in the Workplace”.
48 The Committee’s proposal was
finally enacted in Jersey as “The Jersey Advisory and Conciliation
(Jersey) Law 2003”.
which established a body to be known as the “Jersey
Advisory and Conciliation Service” (“JACS”) which had a
general duty to: promote the improvement of employment relations; assist in the
resolution of individual and collective employment disputes; and assist in the
building of harmonious relationships between employers and employees,
collectively and individually, and thereby improve the performance and
effectiveness of organisations. Under art 4, JACS was to promote conciliation
by designating “Conciliation Officers” from amongst its employees
to conciliate in both individual and collective employment disputes. Article 6
permitted JACS to refer any disputed matters for settlement through arbitration
or mediation. Article 7 permitted JACS to issue information, or advice and/or
publish general advice concerned with employment relations or established
employment policies. Article 8 permitted JACS to inquire into any question
relating to employment relations generally or to employment relations in any
particular undertaking. The findings of any such inquiry under art 8(1) could
be published by JACS, if it appeared that such publication was desirable for
the improvement of employment relations generally.
49 The coming into force of the 2003
Law meant the disbandment in Jersey of the long-standing statutory roles of the
Industrial Disputes Officer and of the Industrial Disputes Tribunal under the
Industrial Disputes (Jersey) Law 1956. In future, the work of the former would
be assumed by JACS and the Process Officer. All new collective disputes after
2003 would be allocated to a panel of three arbitrators.
50 The introduction in Jersey of JACS
in 2003 marked the first real departure in the Channel Islands from the post-World
War 2 arrangements (of the Industrial Disputes Officer/Industrial Disputes
Tribunal) which had been introduced into both Islands back in 1947.
Employment
Relations (Jersey) Law 2007 (“ERL”)
51 In 1997, the Employment and Social
Security Committee was asked by the Policy and Resources Committee to bring
forward for consideration employment legislation. Running parallel to the
latter’s request was the concurrent view expressed by the former in its “Fair
Play in the Workplace” that Jersey’s employment laws were: “out
of date, fragmented, and ineffective.”
52 Indeed, in contrast with an Island
legislature, which had readily adopted new laws to promote and regulate the
growing finance industry, there was little legislation in Jersey to protect the
employee in the workplace itself when compared to many other jurisdictions.
53 Ten years later, the final piece in
the Jersey collective legislation jigsaw came in the form of the Employment
Relations (Jersey) Law 2007 (“ERL 2007”). For
the first time, this provided for the registration of trade unions and
employers’ associations. It also made provision as to their legal status,
together with that of their officials and members, and provided for the
resolution of collective employment disputes between employers and employees,
so as to promote the development of good working relationships between them. All
of this was a very far cry from the outright criminal prohibition of trade
unions in the Code of 1771, but for the Jersey worker it arguably came 236
years too late.
54 A series of legislative amendments
tabled during the passing of the ERL 2007 were proposed by Deputy Southern,
supported by the TGWU. However, only the amendment to art 22(4) was accepted,
such that the JET in determining whether a party was acting reasonably would
have to have regard to whether any relevant handbook had been “agreed”
by or on behalf of the parties to a dispute. The detailed arguments presented
on behalf of the TGWU were contained in a petition to the States with an
accompanying submission by John Hendy KC, one of the UK’s foremost employment
law specialists.
Codes
of Practice issued under the ERL 2007
55 The ERL 2007 was intended largely to
operate through a series of Codes of Practice loosely modelled on those
established in the UK, produced by ACAS. In preparing the Codes, consideration
was 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.
Under the terms of art 25 of the ERL, the Jersey Social Security Minister was
empowered to approve codes of practice as follows:
Code of Practice No 1: Recognition of Trade
Unions
56 This Code covered (inter alia) recognition of trade unions
in Jersey; tribunal jurisdiction; the process for seeking recognition; the
bargaining unit (i.e. the group of
employees that would be represented by the union in negotiations); the process
for ascertaining the wishes of the employees; the process for holding a
recognition ballot; access to the workforce prior to the ballot; the conduct of
a recognition ballot; the recognition agreement; process for de-recognition;
joint-recognition; references to JET.
Code of Practice No 2: Balloting on
Industrial Action/Picketing
57 This Code covered (inter alia) “action in furtherance
of a trade dispute”; unofficial or “wildcat” action; the
calling of action in furtherance of a trade dispute; action as a last resort;
ensuring the support of a majority of employees by balloting; giving
appropriate notice to the employer; action in services essential to the
well-being of the community (e.g.
emergency services, utilities and health sector); “NISAs”
(non-impairment of service agreements); “secondary action” (i.e. targeting employers not party to
the dispute); “picketing”—i.e.
striking workers assembling at or near their place of work for the purpose of
peacefully obtaining or communicating information or peacefully seeking to
persuade others not to attend work or enter the employer’s premises.
58 Paragraph 32 of the Code 2 states—
“a small Island community such as Jersey may have services
that in 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 of time.”
59 Paragraph 33 of the Code 2 goes on
to describe what should be included in such a NISA agreement—
“An
agreement should define a minimum service (e.g.
to ensure that service users basic needs are met, or that facilities operate
safely, or without interruption) and provide for a formal, rapid and impartial
dispute resolution mechanism in the event of a dispute arising which cannot be
resolved through negotiation. This may include the use of conciliation,
mediation or arbitration services, including the involvement of JACS and the
Jersey Employment Tribunal.”
60 Paragraph 35 of the Code 2 states—
“If,
prior to an agreement being reached, action is called which would seriously
interrupt a service endangering the life, personal safety or health of the
whole or part of the population, notice should be given in writing and sent to
the employer so that it is received at least 20 days before the action commences.”
61 Paragraph 39 of
the Code states—
“It
is not unreasonable conduct for a union to call on employees who are involved
in a collective employment dispute at or near their place of work for the
purpose of picketing in contemplation or furtherance of that dispute. That is:
·
Peacefully obtaining or
communicating information
·
Peacefully seeking to
persuade others not to attend work or enter the employer’s premises.”
Code of Practice No 3:
Procedure for Resolving Collective Disputes:
62 This Code
covered (inter alia) JET’s
jurisdiction; declarations by the JET; unreasonable conduct by the parties;
incorporation of terms and conditions into individual contracts of employment;
preference for a joint and voluntary approach to referrals to JET; and
definitions of what amounts to an “available procedure”.
63 In Jersey, any
stoppage in transport links could quickly become detrimental to the health and
safety of the Island’s population if services were interrupted for a
prolonged period of time. A good example of a Channel Islands’ essential
services dispute was seen most recently in 2009 in Guernsey with the Airport
Firefighters, which dispute was ultimately only averted at the last minute on a
“goodwill” basis—and was later to be the subject of an
extensive Tribunal of Inquiry in 2010.
64 As for the
legal definition of “Essential Services” in Code No 3, the States
of Jersey have adopted the ILO’s definition such that any limitations on
strikes in “essential services,” would be achieved under a
voluntary NISA between the relevant trade union and the States of Jersey
employer.
Guernsey’s
industrial relations pre-1947
Background
65 Much like
Jersey, there is little information to be found in histories of Guernsey about
industrial relations there. We have already noted the first stirrings of trade
unionism in Guernsey amongst the granite quarrymen in the late nineteenth
century. As we have also noted, the TGWU had a Guernsey branch predating that
of Jersey in September 1918, and in 1937 the Southampton Area of the TGWU appointed
Edward Hyman as its Channel Islands official and the likelihood is that steps
were taken by him in Guernsey as well as in Jersey. Following the Liberation,
the TGWU quickly re-established itself across the Channel Islands largely due
to the efforts of Hyman, who returned to his former post in late 1945.
66 In Guernsey a TGWU mass-member
meeting was convened on 22 March 1946, and a resolution was passed, unanimously
demanding the introduction of compulsory arbitration in Guernsey as follows—
“That this
meeting of workers, members of the Transport and General Workers’ Union,
request the States of Guernsey to introduce legislation making it compulsory
for Industrial disputes to be submitted to a Board of Arbitration for
Adjudication.”
67 The Bailiff, Sir John Leale,
responded to this resolution on 23 March 1946 in a statement to the States of
Deliberation—
“I have
received from [Mr E.J. Saunders] the local Secretary of the Transport and
General Workers Union a letter dated 23 March 1946 … it appeared to me
that the submission to arbitration of industrial disputes is merely the
extension … of a principle that has operated for centuries in relation to
matters in which an action at law lies and which is, we all hope in process of
realisation in regard to international disputes … I am satisfied that it
is in the public interest that I should lay the matter before you in the form
of proposals for debate… This matter has been considered by the States
Advisory Council, which is of the opinion that, in the first place, the States
should be asked ‘to approve of the principle of compulsory arbitration’
…
The [States
Advisory] Council also feels that industrial disputes should first be referred
to a Conciliation Board, and if agreement cannot be reached, then the whole
matter should in the final resort, be submitted to a Board of Arbitration. The
States Advisory Council therefore recommends that the States be asked to agree
this principle of compulsory arbitration and that a special States Committee …
should study the English Laws on the subject and produce a report to the States.”
“The
English Laws on the subject”
68 In the UK, during World War 2, the
Conditions of Employment and National Arbitration Order 1940 had
prohibited strikes and introduced compulsory arbitration. However, the
conclusion drawn from this experience was that the criminal prosecution of
strikers was ineffective. The arbitration aspect of the order was however more
effective, and parts of it were incorporated into the Industrial Disputes Order
1951.
69 The Guernsey Solicitor General,
speaking in a States debate on 27 November 1946, where consideration was being
given to industrial dispute and employment legislation, said that he did not
agree that the UK Conditions of Employment and National Arbitration Order 1940
was a failure. Whilst people may have heard of cases where arbitration had
failed, they had not heard of the far greater number of cases which were
settled successfully. There were times when workers did not obey their union
leaders, but the Guernsey Solicitor General spoke of the undesirability (if not
impossibility) of fining or imprisoning 2,000 or 3,000 men. Speed in settling
disputes was very important. Provision was made in the proposed Guernsey Law
whereby the Guernsey Industrial Disputes Officer could determine that a dispute
must go before the Industrial Disputes Tribunal at once. Jurat Sir John Leale
said too much stress had been laid on the “very few” strikes which
took place, whereas a “large number” of industrial disputes were
settled quietly.
Guernsey’s
Industrial Disputes Laws (1947–1993)
The
Industrial Disputes and Conditions of Employment (Guernsey) Law 1947
70 The
Industrial Disputes and Conditions of Employment (Guernsey) Law 1947 was
registered on 22 February 1947.
Article 2 provided for the appointment of the
office of “Industrial Disputes Officer” (“IDO”) whose
duties are set out at art 3 and art 4—namely to try to settle a notified
industrial dispute by conciliation (art 3(a), within 14 days of the IDO
being notified of such a dispute. In the event that such conciliation failed,
then the IDO had a duty to bring about a settlement of the dispute by way of
voluntary arbitration submitted to by the parties
concerned (art 3(b)). In the event that voluntary arbitration was not
achievable, the IDO would refer the dispute to a compulsory Industrial Disputes
Tribunal, unless negotiations with a
view to settlement by conciliation or arbitration proceedings were in progress.
71 The duties of the Industrial Disputes
Tribunal (art 6) were to enquire into and make an award as to any dispute
referred to it; to state its award in writing to the parties without delay; and
to publish its award by public notice displayed in the Royal Court House.
72 The powers of the Industrial
Disputes Tribunal (art 7) included: the compulsion of the attendance of
witnesses before it; the power to take evidence from witnesses on oath and to
compel the production of documents and exhibits; and, the power to order that
the whole or part of the costs incurred by any party to a dispute be paid by
one or more of the parties or by the States of Guernsey.
73 Article 13 provided that both “lock-outs”
and strikes were to be illegal, unless the dispute had been notified to the IDO
and fourteen days had elapsed—thereby (if possible) permitting the IDO to
attempt to resolve the dispute under his statutory powers.
74 Article 14 provided that decisions
and awards of an Industrial Disputes Tribunal would become implied terms of
contracts of employment.
75 Article 18 provided that certain
matters could be deemed to be industrial disputes having regard to art 16
and also to any collective agreements concerning the terms and condition of
similar workers in comparable trades or industries.
76 The Schedule set out the
constitution of the Industrial Disputes Tribunal.
1991
Review of the Industrial Disputes and Conditions of Employment (Guernsey) Law
1947
77 The Guernsey States Board of
Employment Industry and Commerce in its 1991 Review of the Industrial Disputes
and Conditions of Employment Law was of the opinion that, since its
introduction, the 1947 Law had—
“continuously provided the Island with an effective system
enabling all industrial disputes to be settled within a legal and binding
framework. This has been to the benefit of employers, employees and the Island
in general.”
78 The TGWU, however, expressed a
dissenting view. In particular, the Union was concerned that even though the
States had previously suggested that
disputes concerning the employment or non-employment of any person could
constitute an “industrial dispute”, no steps had been taken to
alter the definition in the 1947 Law.
79 The 1947 Law permitted any employer
to negate an individual employee’s registration of an “industrial
dispute” simply by summarily dismissing that employee. The IDO has reputedly refused to put some registered industrial
disputes before an Industrial Disputes Tribunal for resolution simply because
he personally believed that the dispute should be settled by a court. The TGWU
disputed that the IDO had the power under the 1947 law unilaterally to decide
whether a given industrial dispute ought to be settled by a court, rather than
being brought before the Industrial Disputes Tribunal.
80 The TGWU responded to the Board’s
consultation process making a number of comments on the tabled amendments. The
TGWU had lobbied the Board of Employment for the composition of the Industrial
Disputes Tribunal to be reduced to just three members, which change was agreed
by the Board. The Union had also wanted the panel of independent members to be
dispensed with, for the stated reason that the Union could not find anyone to
fulfil that role on the panel that they could trust.
81 The TGWU were supportive of the IDO
retaining the duty of drawing up the terms of reference for a referral to the
Industrial Disputes Tribunal for the obvious reason that if the parties were
forced to go before the Tribunal, then they were unlikely voluntarily to agree
the terms of reference.
82 The exclusion of payment (or
non-payment) of wages from the definition of an “industrial dispute”
was not opposed by the Union because Union members would continue to use the
Union office and, if necessary, the courts to pursue unpaid wages claims. Non-members
would have to instruct their own representative to get a resolution to a
dispute. The exclusion of whether a person should or should not be a member of
an organisation was backed by the Union as this would stop disgruntled union
members from using the Law to break-up a closed shop. Closed shops were of two
kinds—a pre-entry closed shop required that a person become a union
member before taking up the employment and the post-entry closed shop which
required membership of a trade union as soon as a person was engaged by the
employer. The TGWU’s fear was that if a member fell-out with his/her
trade union then they might elect to take that dispute before the Industrial
Disputes Tribunal (IDT), hence the TGWUs desire to “exclude” such
disputes from the IDT’s jurisdiction. The TGWU agreed with the exclusion
of disputes between employees as it believed this Law should not be used to
sort out work-related problems between working people. The TGWU objected to the
exclusion of disputes over the continued employment of a person since this
exclusion would have removed any chance of utilising this 1991 Law for unfair
dismissal claims, and the union favoured the introduction of a proper unfair
dismissal law.
83 In early 1982, a legal challenge
arose between Guernseybus and the TGWU due to Guernseybus having ignored the
findings of the Industrial Disputes Tribunal (IDT). A selected driver in a “test
case” sued Guernseybus relying upon the IDT’s award but the court
(advised by the Law Officers) threw out the claim on the basis that the award
was unenforceable.
It is somewhat odd therefore that when the
possibility of clarifying the law in art 14 arose the opportunity was
clearly missed as the wording of the new art 10 is more or less the same,
save for the use of “implied condition” (1993 Law) as opposed to “implied
term” (1947 Law).
84 Further dissatisfaction with the
1947 Law came from the employers’ side. The public sector employers
expressed the view that, by providing the trade union side with unilateral
access to the mechanism of an industrial disputes officer, it arguably
undermined the very process of collective bargaining. This is because, in the
final event, a union can take their case “up to the wire”—safe
in the knowledge that they can always take their case to the Industrial
Disputes Tribunal to try and achieve a more favourable settlement. There is
therefore no incentive for trade unions to settle through the normal process of
collective bargaining. Employers also largely accepted the view that the size
of the Industrial Disputes Tribunal panel was unwieldy and that it should be
reduced to three members only.
The
Industrial Disputes and Conditions (Guernsey) Law 1993
85 The Industrial Disputes and
Conditions (Guernsey) Law 1993
followed the review of 1991 by the States
Board of Employment, Industry and Commerce. The
background to this review was a sharp increase in the number of disputes being
referred to the IDO and onwards to a voluntary arbitration or a Tribunal
adjudication. Until the early 1980s there had been on average just two or three
voluntary arbitrations per year and compulsory industrial disputes tribunals
once every two years. However, after 1983, there had been a sudden increase to
twenty-seven voluntary arbitrations and five Industrial Disputes Tribunals, all
of which had involved States employees or States-funded employees. This rapid
increase in the use of the 1947 Law, coupled with the fact that most of its
provisions had remained unchanged since 1947, had caused the Board to undertake
the review and to determine what, if any, improvements could be made to the
1947 Law.
As explained in the Billet d’État—
“Throughout
the Review, the Board was mindful of the Island’s unique position and its
vulnerability to the effects of industrial action. Guernsey is particularly vulnerable in a number of areas
involving essential services when compared with the United Kingdom which can be
served by numerous harbours, airports, power stations, and fuel supply points
etc. This matter was fully examined and led the Board to conclude that there
was still a requirement to continue to provide an alternative to industrial
action in the form of unilateral access to the Industrial Disputes Tribunal. The
Board believes that the provision of such a system within the Island’s
legislation is to the benefit of the whole community.”
86 This
vulnerability of the Island had led the Board to conclude that there was still
a requirement to continue to provide an “alternative to industrial action”
in the form of unilateral access to the Industrial Disputes Tribunal. The Board
believed that the States were—
“right to provide such an Industrial Disputes mechanism for resolving
disputes quickly, particularly where the Island’s economy might be affected.”
87 That mechanism in Guernsey was the
Industrial Disputes Officer and the post-war compulsory arbitration
arrangements enshrined in the 1947 Law. However, the Board resolved in 1991
effectively to leave matters well-alone on the basis—
“that there was very little wrong with the law which had
served the Island well for over forty years.”
88 This maintenance of the status quo
approach with Guernsey’s industrial relations would in fact continue for
a further 20 years until 2009, when a serious industrial dispute with the Unite
Union and Guernsey Airport Firefighters was to occur.
89 In the Board’s view, the
proposed Industrial Disputes Law had the potential to—
“continue
to provide Guernsey with a fair and sensible process for resolving industrial
disputes but it will not take the place of good industrial relations and
sensible negotiations. The law does not provide the latter, people do, and it is important that employer and
employee organisations appoint skilled personnel to deal with the complex
issues which are very often involved. The law itself cannot stop individuals
from taking industrial action but it does provide a platform for disputes to be
resolved without recourse to strike action or management lock-out. Many
countries would like to have this facility. Our proposals will inevitably not
suit all parties, but they will
leave the law very simple and easy to comprehend when compared with the complex
industrial relations legislation in other
countries.”
90 The 1991 review also suggested that
maybe the lack of complex industrial relations legislation is one of the
reasons why Guernsey’s unemployment is the lowest in the world and why
there are still employers wishing to set up in business in Guernsey.
91 Articles 1, 2 and 3 of the
Industrial Disputes and Conditions of Employment (Guernsey) Law 1993 largely repeated the provisions of the
1947 Law, providing for the appointment of an IDO (s 1), a Deputy (s 2)
and setting out the functions of the IDO (s 3). The main changes are to be
found at art 4—with the introduction of the Industrial Disputes
Tribunal. The 1993 Law provides for just two panels of 8 persons each—an
Employers Panel and an Employees Panel, with the names of panel members being
publicised in La Gazette Officielle in the Guernsey Press.
92 A schedule to the Law (at paragraph
5) provided that the Bailiff as Chairman of the Industrial Disputes Tribunal
would, in future, be the person to appoint the members of the Tribunal after
consultation with the IDO, rather than the States Labour and Welfare Committee
(now Board of Employment, Commerce and Industry). The Industrial Disputes
Tribunal would be reduced to one member from the Employees panel and one member
from the Employers panel.
93 The Board had wished to clarify the
definition of “industrial dispute” by excluding from the
definition: payment or non-payment of wages; the interpretation of or
contravention of contracts of employment; whether a person should or should not
be a member of an organisation; disputes between an employee and employees;
and, disputes over the continued employment of a person.
The recommendations for these amendments were
set out in the conclusions of the review in para 10.4. The
States, however, declined to enact the Board’s recommendations, with the
result that the definition of “industrial dispute” in art 18
of the 1993 Law has remained effectively unchanged.
Guernsey
Airport Firefighters Dispute Inquiry 2010
94 Industrial action by Unite (the
successor to the TGWU) in May 2009 led to the closure of Guernsey Airport for
several days and was the culmination of long-standing difficulties relating to
the provision of fire-fighting cover there. Under the regulatory framework
governing the airport, the airport cannot operate without cover from the
Airport Fire Service.
95 A subsequent Tribunal of Inquiry
took place the following year to inquire into the facts and circumstances
leading up to the industrial action taken by the Airport Fire Fighters in May
2009, including the circumstances in which that action was resolved. The 2010
Tribunal of Inquiry Report concluded that—
“consideration be given to legislation to clarify the scope
of lawful industrial action and the conditions under which it may be taken. Such
legislation should have regard to the restrictions which may be legitimate and
proportionate in essential services and to appropriate guarantees to safeguard
the terms and conditions of workers in such services.”
96 Notwithstanding the clear
recommendations in the 2010 report, no action has yet been taken by the States
to amend the 1993 Law with regards to the scope of lawful industrial action.
Guernsey
(States Pensions) judicial review judgment 30 November 2022
97 In 2022 an
application for judicial review of the IDO’s decision to refer a dispute
to an Industrial Disputes Tribunal was heard before the Royal Court. The
central issue was whether the IDO was correct, or was at least entitled, to
regard three complaints which were the subject of his decision as “industrial
disputes” (within the definition set out at art 14 of the 1993 Law). The three complaints in question
related to changes to the States’ pension scheme and potential breaches
of contract in relation thereto.
98 It was held by Lieut. Bailiff
Marshall that the proper forum for such complaints was the Industrial Disputes
Tribunal itself and not the Royal Court via judicial review proceedings.
99 The advocate for the defendant
submitted that—
“the IDO’s function under the 1993 Law is very narrow;
all he has to do is to make a broad-brush decision that an ‘industrial
dispute’ as defined exists and he is then statutorily bound to refer it
to an [Industrial Disputes Tribunal].”
100 The advocate for the defendant also
submitted that—
“the definition of ‘industrial dispute’ in the
1993 Law is also, itself, very simple and perfectly clear. The definition needs
to be capable of straightforward and common-sense interpretation by a layman
(as the IDO is), and it is … If and insofar as the States’
arguments might have any merits, with regard to the legal substance of the
complaints, the proper place for these to be made is before the [Industrial
Disputes Tribunal] and against the actual parties raising those complaints, not
against the IDO.”
101 The
court stated that—
“The 1993
Law itself carries the ‘strong flavour’ of being focused on support
for the system of collective bargaining in employment matters, seeking, in the
public interest, to facilitate the smooth negotiation across employment sectors
in such matters as pay rounds, and similar concerns, and obviating damaging and
divisive industrial action … It is therefore unattractive that, after all
that effort and toil, the States should be exposed to the prospect of having
such a hard-won outcome challenged, and possibly undermined, by small groups of
aggrieved individuals seeking to take them before an Industrial Disputes
Tribunal.”
102 In a Postscript to her judgment, Lieut
Bailiff Marshall stated that—
“insofar
as this is a consequence of what I consider to be the correct interpretation of
the 1993 Law regarding the function and powers of the IDO, the disadvantages of
this effect have previously been brought to the attention of the States of
Deliberation, both in 1991 when the 1993 Law was debated, and again in 2010
when the report on its operation in relation to the industrial action of the
Guernsey Airport Fire Fighters was received by the States. As no action has
been taken to moderate this effect, it must be assumed that the States
considers that it is in the best interests of Guernsey, as a matter of industrial
relations generally, to have a very broad definition of “industrial
dispute” administered by the IDO as a lay official, notwithstanding the
possible practical disadvantages of this, which the present case has
highlighted”.
103 The whole debacle of the States
having challenged the decision of its own IDO before the Royal Court and having
been found wanting is indeed a somewhat bizarre occurrence. The matter is now
to be referred to the Industrial Disputes Tribunal in 2023 for a determination
to be made by the body set up in Guernsey statute law to deal with it.
Registration
of trade unions/employers’ associations and trade union recognition in
Guernsey
104 Significantly, in Guernsey, unlike
Jersey (and the UK), there is still at the time of writing no mandatory
register of trade unions and employers’ associations. Trade unions are
not legally recognised in Guernsey, although individual employees are protected
from dismissal for trade union–related reasons. The
States Industrial Relations Advisory Officer does however maintain a voluntary
list of trade unions and employers’ associations for the purposes of
consultations on any new legislative proposals. Arguably, it is now time for
Guernsey to adopt the Jersey approach of a statutory register of trade unions,
which approach has been successfully operating in Jersey, reportedly without
incident, since 2003.
Conclusion
105 In both Jersey and Guernsey, it can
fairly be said that movement towards collective and individual employment
rights since 1947 has remained on the slow side of glacial. Whilst the first
post-war collective employment laws were passed by the legislatures of both
Guernsey and Jersey back in 1947, it took Guernsey until 1998 with its
Employment Protection (Guernsey) Law 1998, and Jersey a further five years with
its Employment (Jersey) Law 2003, to introduce into law the most basic
individual employment rights of unfair dismissal and minimum notice periods.
106 This slowness on employment rights
legislation can perhaps be fairly contrasted with the Islands’ relatively
rapid legislative progress over the same period in the financial services area
where, in the post-World War 2 period, both Islands have striven quickly to
establish world-class legislation, thus placing them in the premier league of
respectable jurisdictions. Many clients and lawyers coming to the Channel
Islands from other jurisdictions would doubtless find it incomprehensible that,
for example, “unfair dismissal” was not even a concept known to
Guernsey law until 1998 and to Jersey law until 2003.
107 The legalisation of trade unions in
Jersey only came about in 1939 due to the pioneering efforts of Edward Hyman
and two sympathetic States Deputies, who achieved the repeal of the relevant
prohibition in the Code of 1771 by the Loi
abrogeant les dispostions du Code des Lois de 1771 sous le titre de Reglemens
pour ouvriers et personnes de metier,
which then permitted the TGWU to operate lawfully for the first time.
108 The first significant collective
labour laws on the statute books of Jersey and Guernsey were the Industrial
Relations and Trade Disputes Act 1947 and
The Industrial Disputes and Conditions of Employment (Guernsey) Law 1947,
respectively. Indeed, these collective disputes laws, with all their defects,
were enacted largely because of the tireless post-war lobbying of the TGWU
across the Islands.
109 However, progress since 1939 in the
Islands towards better employment rights protection has remained slow. As John
Guilbert, one of Mr Hyman’s TGWU successors, writing some four decades
later in 1991, so succinctly put it—
“the recalcitrant employer dominated States is going to be
dragged kicking and screaming into the 20th Century. Why won’t
they act reasonably in respect of employee protection NOW? There is no doubt
that “back woodsmen” States’ members will continue to oppose
any improvements in workers’ rights, therefore workers will have to press
their Deputies to support the introduction of the Codes of Conduct on Unfair
Dismissals and Redundancies etc. which would provide minimal protection.”
110 Nevertheless, it is to the credit
of the Channel Islands District of the TGWU, that throughout the post-World War
2 period, they steadfastly pursued the Union’s “collective
bargaining agenda” by negotiating with Island employers up to the ceiling
of what could be achieved, rather than becoming too overwhelmed by the total
absence of any minimum floor of
statutory employment rights.
111 Over the past 50 years, Guernsey
and Jersey have become very successful specialist financial centres. The
Islands are also significant net providers of liquidity and capital via
investment funds to the EU economy. In that 50-year period (1973–2023),
they have managed to meet international investors’ needs by offering a
range of regulatory legislation in financial services, anti-money laundering
and data protection legislation.
These robust statutory protections have led
to the attraction to the Islands from the UK of a highly skilled professional
services workforce, which now `makes up almost a quarter of the total workforce
across both Islands.
112 Even today, some still question the
need at all for trade unions and employment law protection in such small
islands, where there has been virtually full employment for such a long time.
However, the Channel Islands do need to show that they are “responsible
and reputable” jurisdictions which must include having in place laws
relating to fundamental, internationally recognised concepts (including those
established by the ILO). Furthermore, the fortunate position of full employment
could very quickly change as a result of external economic or political forces
over which the Islands have little control.
113 Does Guernsey leave its Industrial Disputes (Guernsey) Law 1993 well alone,
perhaps for another 30 years, if it is indeed still fit for purpose? Alternatively,
given that the 1940 wartime statutory instrument upon which it was based was
largely repealed by the Industrial Disputes Order 1951—there is an
argument that its replacement is long overdue. However, since the 1991 Review,
nobody in Guernsey has been able to come up with anything better.
114 The whole edifice of the IDO and
the Industrial Disputes Tribunal established by the 1993 Law was certainly well
stress-tested during the Guernsey Airport Firefighters dispute of 2009. The
industrial relations’ stakes will always be high for any small island so
dependent upon its airport, and Guernsey did come very close to a collective
industrial relations meltdown in 2009. Next time it could be Jersey. The Royal
Court of Guernsey’s judicial review decision in 2022 on States pensions
found the 1993 Law in part still wanting. The outcome of the consequent
Industrial Disputes Tribunal hearing in 2023 is keenly awaited.
115 One option Guernsey might usefully
consider would be the solution already adopted across the water in Jersey of
replacing its existing IDO and Industrial Disputes Tribunal arrangements with a
JACS equivalent (UK ACAS-style) service. Maybe with JACS, Jersey has found a
more robust tool for dealing with similar industrial relations difficulties
should they occur in their Island in the future. The “proof of the
pudding will eventually be in the eating” for Guernsey, but for the
moment, something akin to the successful JACS model would seem to represent the
more sustainable solution for Guernsey.
116 Guernsey might also address its
lack of protection for employees who take strike action. The current law leaves
such employees open to being sued for contractual breaches or to having their
contracts terminated. Guernsey could also benefit from developing a statutory
register of Island trade unions as already exists in Jersey.
117 Trade unions in Guernsey and Jersey
could easily find themselves crushed if the structure of the States-funded
employment disputes framework were ever to disappear and full-throated
collective bargaining were to replace it. However, with such a large public
sector workforce in the Islands there is perhaps little risk of this ever
happening. The continued existence in Guernsey and Jersey of their employment
disputes frameworks means public sector unions will have little or nothing to
lose (or risk) by pursuing all or any of their collective disputes right “up
to the wire”.
118 This of course should be tempered
by the realisation that on a small Island, reliant on its airport and seaports,
things could very quickly turn nasty for the economy in the event of a total
industrial relations breakdown. In those circumstances, an award through a
compulsory arbitration process may well amount to the least-worst option for a
trade union to take on its members’ behalf.
119 The final words should perhaps go
to the Daily Herald of 3 October 1946
paying tribute to Edward Hyman “the big trade union personality of the
Channel Isles”—
“Odd to
think that in 1937, when he [Mr Hyman] first arrived in the islands after a
fine record of trade unionism on the mainland that the Attorney-General of
Jersey solemnly opened the ‘The Norman Code of Law 1771’ and read
to him a passage in Norman French saying: ‘Any three or more persons
gathered together for the purpose of discussing their working conditions
constitute an illegal assembly’. It meant no trade unionism. But Ted
Hyman got busy, earned the sympathy of two Deputies and they by force of
enlightened argument had the offending passage removed from the island’s
ancient law. It was a victory for Mr Hyman and progress. It was a defeat for
reaction, King John, who framed most of the island laws in the thirteenth
century and for George the Third who confirmed them 175 years ago … There
are new agreements to be made with employers, new fights to improve the
standard of living. Mr Hyman marches on … Never were the islanders
happier. They had nothing to lose but their chains.”
Andrew
Cross, LLB, LLM, FCIPD, Solicitor, ACAS Panel Arbitrator/Mediator, is a Member
of the Law Society of England and Wales Employment Law Committee and is a
former Assistant Secretary/Solicitor of BMA Cymru Wales.
The
author wishes to express his sincere gratitude to Advocate Dr John Kelleher, Dr
Darryl Ogier, Nik Van Leuven, KC, Priaulx Library Guernsey, Jersey Archive,
Jersey Reference Library, Modern Records Centre
University of Warwick and to Ann Cross, former Law Librarian of the University
of South Wales, for all their help in the preparation of this article.