Fair Play In The Workplace

Melanie Cavey

In 1997 the Employment and Social Security Committee (ESSC) was asked by the Policy and

Resources Committee in its Strategic Policy Review and Action Plan "to bring forward for

consideration employment legislation and social security policies to encourage the more

effective use of manpower" [1] . Running parallel to that request was the belief held by the

ESSC that Jersey’s employment laws were out of date, fragmented and ineffective. Whilst

legislation establishing sound and internationally recognised controls upon the finance

industry is readily forthcoming there is, in comparison to many other countries, little

legislation to protect either the employer or the employee in the workplace itself. In addition

some believe that if Jersey is to maintain its good image as an international financial centre, it

is imperative that up to date employment legislation is introduced.

As a first step towards answering the Policy and Resources Committee’s request the ESSC

embarked upon a survey of islanders’ expectations with regard to employment legislation. In

December 1998 a consultation document entitled "Fair Play in the Workplace - Good

employment practice in Jersey" ("the consultation document") was widely circulated. The

aim was to ascertain the views of all sectors of the community. In addition the ESSC held a

series of meetings with States members, trade union representatives and employer groups and

three public meetings. Some 500 individual responses to the survey were returned and several

detailed replies were received from representative groups.

In his foreword to the consultation document the President of the ESSC, Deputy Terry Le

Sueur, stated 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.

The purpose of the consultation process, therefore 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." [2]

In her own foreword the Controller of the Employment and Social Security Department, Mrs

Ann Esterson, added the following:

"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 reader will see in the report that 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" [3]

These extracts epitomize the approach which the ESSC is taking towards the challenge laid

down by the Policy and Resources Committee. The purpose of this article is to assess how

best the ESSC can fulfil its aims while taking account of the responses to the survey.

The Island’s "particular circumstances"

At the time of writing the ESSC is considering the submissions in developing a policy for the

immediate future. Fundamental to any policy decisions will be the need to have a clear

understanding of the Island’s "particular circumstances," as referred to by the Controller,

against the background of which employment legislation will be introduced. But arguably

Jersey is, in reality, no different from any other nation state when social rights such as a

minimum wage, anti-discrimination, maternity rights and unfair dismissal are in issue.

Modern employment laws have evolved as a result of society’s recognition of basic human

rights in the modern workplace. The effects of this recognition are seen throughout the

developed world where many countries now have employment legislation providing for such

employment rights. They are succinctly described in the following quotation from an

American legal encyclopaedia:

"In the modern world, employment is the means by which goods and services are provided.

Beyond establishing an economic relationship between employer and employee, work

provides a powerful structure for organising social and cultural life. The employment

relationship is more than the exchange of labour for money. In U.S. society, self-worth,

dignity, satisfaction, and accomplishment are achieved primarily by one’s employment

responsibilities, performance and rewards. The development of employment law

demonstrates the importance of work." [4]

So what circumstances are particular to Jersey? The writer suggests that a combination of

factors give the Island its "particular circumstances". The people are prosperous and

condensed into a politically quasi-autonomous area of only forty-five square miles. The

population stands at approximately 85,000 of which about 42,000 are in the workforce. Jersey

has the highest percentage of female workers in Europe and a thriving economy. The success

of the economy has led to the introduction of what some describe as draconian measures to

restrict the increase in job numbers and the imposition of housing regulations which control

an individual’s eligibility to own or rent property in the Island. In addition the basis of the

Island’s economy has fundamentally changed in the last thirty years with the rapid growth of

the finance industry. In contrast the agricultural and tourism industries have seen a steady

decline. However most islanders accept the importance of keeping both industries afloat not

least because of the employment opportunities which they bring. Immigrant workers are

needed to work on the farms and in the hotels but only for a few months of the year. There

are large numbers of working women who have no family network in the Island to help them

with sick children and with after school and holiday care. The Island’s social security system

does not provide child benefit and unemployment benefit as a matter of course as for example

in the United Kingdom. The equivalent family allowances and parish welfare system are both

means tested. There are many businesses representing worldwide institutions but also many

small and old established businesses. It is worth noting too that 80% of businesses in Jersey

employ less than 10 staff, whilst a large Jersey business may employ no more than 250 staff.

Given these "particular circumstances" how can the ESSC build a workable infrastructure of

employment laws that will provide fairly for all employers and employees?

What rights are covered in the employment law of other jurisdictions?

As part of the background research to the consultation document the ESSC looked at other

countries, and in particular small jurisdictions, to see if there was a rôle model of

employment legislation that could readily be adopted by the Island. No such model was

found but the research demonstrated that employment legislation has evolved in other

jurisdictions over a period of time as attitudes have become less tolerant of any perceived

unfairness in the workplace. Perhaps many jurisdictions have realised the value of their

workforce to their economy and as a result have sought to redress the inequality of bargaining

power between employer and employee.

Many countries have legislation covering most, if not all, of the employment issues such as

equal pay, rights to a statement of contract terms, anti-discrimination, leave provisions,

minimum wage, grievance procedures and maternity rights. Some also have Human Rights

Acts and some rely on Codes of Practice to supplement their legislation.

United Kingdom

Employment legislation started to appear on the statute book in the UK in the mid 1960’s

when statutes providing for written particulars of contract terms [5] and redundancy measures

[6] were enacted. These were followed in the 1970’s by statutes protecting an employee from

unfair dismissal [7] (as opposed to the common law right to protection from wrongful

dismissal) and from discrimination [8] . The European Economic Community also emerged

as a law making body with an impact in this field. Many additional pieces of legislation have

issued over the last thirty years from both the UK Parliament and the European Union leaving

many people in the UK with the impression that employment legislation is a confusing jigsaw

of piecemeal provisions which are continuing to increase in number and to add to business

cost.

The main relevant pieces of legislation currently in force in the UK are:-

1. Equal Pay Act 1970; this lays down requirements for equal treatment of men and

women in the same employment;

2. Health and Safety at Work Act 1974; this imposes a duty on an employer to ensure, so

far as is reasonably practicable, the health, safety and welfare at work of all his

employees; Sex Discrimination Acts 1975 and 1986; these prohibit discrimination on

grounds of gender, or marital status, or by way of victimization in the employment

field;

3. Race Relations Act 1976; this prohibits racial discrimination in the employment field;

4. Trade Union and Labour Relations (Consolidation ) Act 1992; this contains

provisions (inter alia) dealing with secondary industrial action and requirements for

ballots before industrial action;

5. Disability Discrimination Act 1995; this contains protection for disabled persons;

6. Employment Tribunals Act 1996 (originally called the Industrial Tribunals Act 1996);

7. Employment Rights Act 1996; this consolidating act has 245 sections containing

provisions dealing with (inter alia) employment particulars, protection of wages,

guarantee payments, Sunday working, time off work, maternity rights, termination of

employment, unfair dismissal, redundancy payments and the insolvency of

employees. [9]

Finally the UK Parliament has just enacted the National Minimum Wage Act 1998, which

provides that all workers qualifying under the terms of the Act should be paid at not less than

the national minimum wage, and the Working Time Regulations 1998. These Regulations

implement the European Working Time Directive and set out the health and safety

requirements for the organisation of working time, creating limits on hours of work and

entitlements to rest breaks and paid annual leave. In addition the UK Government’s own

much talked of Employment Relations Bill, which deals with the worker and family friendly

policies contained in its "Fairness at Work" White Paper, is expected to receive Royal Assent

in the autumn. A detailed section of the bill deals with union recognition and derecognition

and another section deals with maternity rights including an extension to the current basic

statutory maternity leave. The bill itself does not refer to the expected reduction in service

requirement from two years to one before an unfair dismissal claim can be brought, but it is

assumed that this provision will appear in the accompanying Regulations. Indeed much of the

detail of the new provisions will be in the form of Regulations. Also to be implemented by

virtue of the Bill are the European Parental Leave Directive which sets out minimum leave

rights which each member state must grant to new parents, and the Part Time Work Directive

which states that part-time workers cannot be treated less favourably than full-time workers.

Other jurisdictions

The Isle of Man has two key pieces of employment legislation, the consolidating

Employment Act 1991 and the Redundancy Payments Act 1990. Although enacted prior to

the UK Employment Rights Act, the 1991 Isle of Man Act largely mirrors the provisions of

the UK Act with the exception of the redundancy issue, which is dealt with in the

Redundancy Payments Act. The 1991 Act also includes provisions relating to trade union

membership although the majority of trade union issues are dealt with in the Trade Unions

Act 1991, as amended.

New Zealand is another jurisdiction with a comprehensive act dealing with all employment

issues. The Employment Contracts Act 1991 is described as providing "the overall legislative

framework for industrial relations in New Zealand" …. whose purpose " is to increase the

efficiency and flexibility of the labour market" [10] . The preamble commences with the

words "An Act to promote an efficient labour market…" It contains 189 clauses dealing with

issues such as freedom of association; bargaining; personal grievances; enforcement of

employment contracts; discrimination; recovery of wages; strikes and lock-outs and

employment courts and tribunals. [11]

Bermuda may be considered as being the small jurisdiction perhaps closest to Jersey in many

ways. Interestingly, Bermuda, although having some employment legislation including the

Bermuda Constitution Order 1981 [12] ; the Human Rights Act 1981 [13] and the Trade

Union Act 1965 [14], rely heavily on Codes of Practice. However the Bermudian authorities

have acknowledged in correspondence with the Employment and Social Security Department

that there is evidence to suggest that some employers are ignoring the Codes. They are

consequently considering introducing some form of legislative framework of legally

enforceable rights.

The aim of the Ministry of Labour in Singapore is to "foster an efficient labour market and a

safe and harmonious work environment in partnership with workers and employers so as to

achieve economic growth and prosperity for the well-being of Singaporeans." [15] This

maxim seems to parallel the published aim of the ESSC. In describing its services, the

Ministry continues "The Labour Relations Department promotes and maintains industrial

peace and stability in Singapore by balancing the interests of employers and employees and

providing a legal framework to achieve this balance……… The three social partners [i.e.

government, employers and trade unions] should therefore continue to work closely together

to preserve industrial harmony so that Singapore can remain an attractive place for

investments." Not only does this statement fully endorse the "partnership approach" referred

to by the president of the ESSC but also it encapsulates the secondary reason why Jersey

might consider the introduction of additional employment legislation, namely the retention of

its good image internationally. Currently in force in Singapore are the Employment Act 1968

which provides for basic terms and working conditions for all types of employees except

those employed in managerial, executive or confidential positions, seamen and domestic

workers; the Industrial Relations Act 1960 which established the Industrial Arbitration Court;

the Singapore Labour Foundation Act 1977, the Trade Unions Act 1940 and the Trade

Disputes Act 1941 which all deal with union issues and the Retirement Age Act 1993.

Finally, it may be worth casting an eye across the waters to our neighbouring Island of

Guernsey. On January 4th 1999 the Employment Protection (Guernsey) Law 1998 came into

force. The Law succinctly provides for a number of scenarios in which a dismissal will be

unfair and for complaints to be heard by independent adjudicators. One response to the "Fair

Play" survey made the point that Jersey should work more closely with our sister Bailiwick

when drafting employment legislation. If one looks at the similarity of the laws that Guernsey

already has on its statute book [16] it is evident that co-operation could be beneficial.

Current employment laws in Jersey

Jersey currently has four pieces of employment legislation as well as the Health and Safety at

Work (Jersey) Law, 1989. A Minimum Wage Law is yet to be drafted but was approved in

principle by the States in March 1999. A Human Rights Law is also currently being drafted.

The Industrial Disputes (Jersey) Law 1956 is little used. The preamble states that it is "A Law

to make provision for the settlement of industrial disputes, and for regulating conditions of

employment." It provides for the appointment of an Industrial Disputes Officer and Deputy

(both of whom should be States members) and for the creation of an Industrial Disputes

Tribunal to which the Industrial Disputes Officer can refer disputes for settlement. The

Industrial Disputes Officer does not however have authority to act at the instance of an

individual complainant. He can act where a dispute exists in a trade or industry or in an

undertaking and the dispute is reported to him by

a. " an organisation of employers, on behalf of employers who are parties to the dispute;

or

b. an employer, where the dispute is between that employer and workers in the

employment of that employer; or

c. an organisation of workers, on behalf of workers who are parties to the dispute." [17]

The Industrial Disputes Officer cannot deal with disputes where internal mechanisms to

resolve the issues have not been exhausted.

The Payment of Wages (Jersey) Law 1962 [18], as its title implies, contains provisions which

deal with the payment of employees’ wages. There is however no requirement in the Law that

an employer provide an itemised pay statement, and the issue of deductions from wages is

dealt with simply in Article 8 which states "Nothing in this Law shall be deemed to prohibit

the deduction of any amounts authorized by or under any enactment or collective agreement

to be so deducted". Anyone acting in breach of the Law is subject to a fine not exceeding

£250.

The Termination of Employment - Minimum Periods of Notice (Jersey) Law, 1974 ("the

1974 Law") provides for "minimum periods of notice to be given by employers or employees

to terminate an employment and to make provision for related wage payments" [19] . The

statutory minimum periods of notice are more favourable to the employee than under UK law

for an employer must give one week’s notice to an employee who works for him for more

than twenty-one hours per week as from the date of employment; once that employee has

worked for a period of twenty-six weeks or more, longer minimum notice periods start to

apply. In the UK the statutory minimum starts only after a period of one month’s service and

the longer provisions become effective after a period of two year’s service. It has to be

remembered that there are no redundancy provisions under Jersey law and it is believed that

the longer notice periods granted under the 1974 Law were drafted in recognition of that fact.

The 1974 Law also contains articles dealing with the computation of periods of employment

and the circumstances of an employee where his employer changes. This is the nearest

provision under Jersey law to the problematical Transfer of Undertakings (Protection of

Employment) Regulations 1981 enacted in the UK to implement the EC Business Transfers

Directive (No. 77/187). The UK Regulations are intended to provide protection for

employees affected by the transfer of their employer’s undertaking. Although not so

extensive in its effect, Article 4 of the 1974 Law gives limited protection by providing that an

employee’s period of employment will be regarded as continuous even if the business is

transferred.

Finally, the Terms of Employment (Jersey) Regulations 1998 are triennial regulations which

were first enacted in 1995. The terms are very similar to those of Section 1 of the UK

Employment Rights Act, and provide that an employer must provide an employee with a

written statement of his particulars of employment within four weeks of the commencement

of that employment. The statement is not to be confused with the contract of employment

itself but it will be strong evidence of the contractual terms. It is obligatory to state the

identity of the parties, the title of the job and the date when employment started. However,

although the Regulations list a number of additional points for inclusion such as details of

notice periods, rate of pay, holiday entitlement, grievance procedures, sick pay etc., article

2(3) states that if there are no particulars relating to these points then the employer is simply

required to state that fact. This is comparable with the UK Employment Rights Act but the

writer would argue that little comfort is to be gained from these provisions by the employee,

who is likely to want clarification on those very issues the details of which are not made

obligatory in the Regulations. It is known that many people in Jersey do not have a written

statement of their terms of employment, and presumably no written contract. Although the

Regulations make provision for the appointment of a Terms of Employment Officer to deal

with cases where an employer has omitted to provide a written statement of particulars or

where confusion exists regarding its terms, there is no law on unfair dismissal in Jersey. It is

suggested that the low incidence of cases brought before the Terms of Employment Officer

results from the lack of protection that any employee seeking redress under the Regulations

has from being unfairly dismissed for raising a complaint and the limited remedy available.

The penalty that can be levied against an employer for failure to provide a statement is a fine

not in excess of £500.

Similarly the Payment of Wages Law is seen to have limited effect without the back-up of an

Unfair Dismissal Law.

The current legislation needs to be viewed against the background of the Jersey customary

law of contract and its effect on employment issues. In the consultation document the Law

Officers summarized the position as follows:- [20]

"The relationship between employer and employee is essentially part of the ordinary law of

contract. Whilst the essentials of the Jersey law of contract may be said to have more in

common with French law than with English law, nonetheless, for practical purposes the

resulting relationship between employer and employee is not dissimilar to that which

prevailed at English common law before the evolution over a period of many years in that

jurisdiction of a framework of statutory rights and obligations. In Jersey, the parties are free

essentially to make their own contract. In accordance with the maxim "la convention fait la

loi des parties", they will be bound by any contract which is not otherwise void or unlawful.

Implicit in any contract of employment is a duty on the employee to give his personal service

(i.e. not to delegate the performance of his duties to another person), to obey all lawful orders

given to him by his employer, to act with loyalty and good faith towards his employer and to

exercise reasonable care in his work. Also implicit are certain duties upon the employer. He

must pay the agreed remuneration. He must take reasonable care for the safety of his

employees. This involves amongst other things the provision of a safe system of work and the

exercise of reasonable care in the provision and maintenance of plant, tools and equipment."

Jersey case law dealing with employment issues has often highlighted problems that have

arisen in the interpretation of restraint of trade clauses written into contracts that the

employee has subsequently attempted to avoid. The Court has not been liberal in its

interpretations of such clauses. In the case of Wallis v Taylor [21] the maxim referred to

above was applied in the case of a driving instructor employed under a contract which

prevented him from starting his own driving school or taking employment with another

driving school for one year from the termination of his employment. Bois, Deputy Bailiff

stated:-

"It is an established principle of Jersey law that "la convention fait la loi des parties" and the

Court will enforce agreements provided that, in the words ofPothier, (Oeuvres de Pothier,

Traité des Obligations, 1821 edition, at page 91) "elles ne contiennent rien de contraire aux

lois et aux bonnes moeurs, et qu’elles interviennent entres personnes capables de

contracter." Where an agreement is freely entered into between responsible persons, good

cause must be shown why it should not be enforced, and the matter which we have to

determine is whether and the extent to which, in Jersey law, a covenant in restraint of trade

can be held to be invalid."

Until such time as legislation further refining the parties ability to contract freely is

introduced it is suggested that the Court will continue to apply this maxim in this way in all

employment cases where it is appropriate.

Human rights law and the trade unions

No detailed mention has been made of two key issues in employment legislation largely

because both are subjects on which separate articles could be written in their own right. The

first is the rôle that the impending Human Rights Law will play in employment relationships

and the second is the rôle of the Island’s trade unions.

Opinion is varied as to whether the incorporation into domestic law of the European

Convention on Human Rights will have an impact on employment law. Employment issues

are not specifically mentioned in the Convention. Neither the UK nor the Island’s Human

Rights statute is in force at the time of writing but it is suggested that the correct approach is

for those drafting employment legislation to ensure that the law in question does not conflict

in any way with the principles contained in the Convention.

There are no local statutes governing the legal status of trade unions. However at common

law every individual has a right to association for legal purposes and accordingly any

employer or employee can form an organisation so long as its aims are within the law. The

survey results indicated that many Islanders wished to see the introduction of laws imposing

rules on the calling of industrial action and prohibiting the closed shop and secondary

industrial action. The unions will be likely however to regard the issue of trade union

legislation as one which will need to be considered as a separate issue from that of

employment laws.

The way forward

The enormity of the task facing the ESSC if they are to devise a workable, effective and

acceptable legal framework of employment legislation that will take the Island’s workforce,

both employers and employees, successfully into the millennium is clear. But how much

additional legislation are Islanders prepared to accept? In the responses to the survey phrases

describing the exercise "as taking a sledgehammer to crack a nut" and "if it ain’t broke don’t

fix it" were common. The reader can see from the brief survey of employment law in some

other jurisdictions that employment infrastructures are usually established over a period of

years. The "Fair Play" questionnaire asked Islanders whether they felt that a new employment

law was needed. A large majority of both employers and employees gave a positive response

to this question. However the questionnaire then went on to ask questions relating to specific

areas of employment law and at this point opinions varied. Three elements which did score

highly were the need for an ACAS style conciliation service supported by an Employment

Tribunal system, the need for employers to provide itemised pay statements for their

employees, and protection for employees from unfair dismissal.

Another area of the law which, according to the survey, Islanders are keen to see improved is

that relating to both the issue and enforcement of contracts of employment. Interestingly there

was no question specifically dealing with the issue of contracts in the questionnaire other than

that which asked whether Islanders agreed with the ESSC’s definition of both the employers’

and employees’ duties and responsibilities in an employment relationship. Many commented

that a lot of the proposals included in the survey were matters that could best be dealt with in

an employee’s contract. Perhaps unwittingly Islanders seemed to support the retention of the

old Jersey maxim "la convention fait la loi des parties".

Most also endorsed the concept of the "partnership culture" whereby employers and

employees work together for the good of their business enterprise and forsake the old

adversarial master/servant approach to employment relationships. However, is it realistic to

expect the partnership culture to work without a legal infrastructure to support it? The

Bermudian experience referred to above suggests not.

The imminent prospect of a Minimum Wage Law has given rise to considerable negative

reaction from some business sectors. States members have also already endorsed the

introduction of a maternity pay policy in the private sector comparable to that in the public

sector. The introduction of maternity pay and rights (other than the right not to be unfairly

dismissed on the grounds of pregnancy) were, perhaps surprisingly, not issues which scored

particularly highly in the "Fair Play" survey. However at the public meetings held by the

ESSC considerable antagonism was expressed by those representing small businesses on the

issue of maternity pay and a woman’s right to return to work after the birth of a child. Given

also the recent "rebellion" amongst the small business community over the impact of the

Regulation and Undertakings Law on their ability to hire staff and the capitulation of the

Finance and Economics Committee to their demands the States may be wise to tread

cautiously before embarking upon a major legislative programme in other areas of

employment law.

It will be important to ensure that any legislation that is promoted forms part of a logical and

cohesive structure. If employment legislation is to be introduced over a period of time, it

should not be done in such a way that a confusing jigsaw results but rather as part of a logical

and orderly scheme. The effect of the pending Human Rights Law has already been

mentioned, but another area actively under review by the Legislation Committee is that of

race relations. The ESSC will be consulting closely with the Working Group charged with

that research. It is suggested that the States would be well advised to prepare the business

community for the introduction of new legislative measures over a period of time. During the

transitional period whilst the Minimum Wage policy was being drafted for the States debate

the business community had time to accustom itself to the idea. John Cridland, the Director

of Human Resource Policy at the CBI when talking of the impact of the new family friendly

policies in the UK has said: [22]

"The key point is one of clarity and definition. Employers do not oppose the sensible

introduction of family friendly working arrangements where there is a clear understanding of

the impact such moves will have. It is vital, for example, that the introduction of the Parental

Leave Directive is sufficiently flexible to allow employers to manage their resources".

Mr Cridland’s reference to flexibility also echoes the sentiments of the ESSC which is aware

that "an overall strategy which supports a flexible workforce" [23] will be essential if its

proposals are to meet the Policy and Resources Committee’s requirement that any new

employment legislation should encourage the effective use of manpower.

The issue of whether the ESSC will propose that there by any exemptions to any laws that are

introduced was frequently raised in the "Fair Play" survey. There is a view that exemptions

would create more bureaucracy and opportunities for abuse and that so long as employers

have sufficient warning of any new system that is to be implemented that is all that is

required. Against this view are the opinions of the majority of those who run small businesses

who fear that excess legislation will cripple their ability to function.

Finally, the ESSC will need to decide how many issues should be left to market forces and

whether any can be "controlled" by a change of attitudes brought about through education.

The recently formed Jersey Employers Network on Disability (JEND) is a shining example of

how success can be achieved without legislation. In its first year of existence, JEND has

placed over one hundred disabled people in employment with local employers. Is it not better

in an island like Jersey to encourage a greater understanding of the needs and abilities of the

disabled through education rather than to introduce legislation as complex as the new

Disability Discrimination Act in the UK?

Conclusion

Whom do legislators seek to protect when they draft employment legislation? What is the

particular vice that the ESSC is seeking to remove when contemplating the introduction of

new employment legislation? It is admirable to want to create a harmonious, co-operative and

flexible environment in the workplace whilst at the same time effectively employing the

Island’s manpower. But what is actually needed to achieve this? The implementation of

legislation will cost money, both to employers who will incur additional administrative costs,

and to government by way of law drafting time and enforcement measures. The President of

the Policy and Resources Committee made it clear in the Minimum Wage debate that the

introduction of the minimum wage would be subject to the usual prioritisation processes with

regard to both law drafting time and manpower resources. It is suggested that employment

legislation will be treated in the same way.

However in some key areas legislation will be needed as a result of the recent States decision

on the minimum wage. The States voted for:

"(i) a minimum wage at such hourly rate as the States may from time to time prescribe by

Regulations;

(ii) ……

(iii) individuals to have the opportunity to ensure compliance with the minimum wage

through a Jersey Advisory and Conciliation Service and an Employment Tribunal established

under a new Employment Law;" [24]

It is suggested that the Industrial Disputes (Jersey) Law 1956 should be repealed and that the

services provided under that law assumed by the new Jersey Advisory and Conciliation

Service (JACS) and Employment Tribunal constituted by the new Law. The services offered

by these institutions will also extend to the individual and are likely to be modelled on the

UK ACAS and Employment Tribunal system. The Payment of Wages (Jersey) Law 1962

should be updated for an effective Minimum Wage Law will require employers to issue

itemised pay statements.

The unfair dismissal hurdle will need to be jumped. If no law on unfair dismissal is

introduced not only will the current Terms of Employment Regulations and Payment of

Wages Law remain without teeth but so too will the new JACS authority and Employment

Tribunal and the Minimum Wage Law.

But at that point, given Jersey’s "particular circumstances" does the Island really need

anything else other than perhaps the introduction of a few more compulsory terms in a

written statement of terms of employment? Should we not bide, at least for now whilst the

dust settles in the UK and Europe from the latest round of social legislation and in our own

Island from the impending changes, with the words of Pothier?

Melanie Cavey is a solicitor of the Supreme Court of England and Wales and is currently

employed as the employment policy officer in the Employment and Social Security

Department, States of Jersey. The views expressed in this article are her own views and not

necessarily those of the Department or the ESSC.

Footnotes - (Top)

[1] - Strategic Policy Review and Action Plan 1997 page 3 paragraph iv

[2] - Fair Play in the Workplace – President’s Foreword

[3] - Fair Play in the Workplace – Controller’s Foreword

[4] - West’s Encyclopaedia of American Law http://www.lawoffice.com (update May 2010 -

this website now not available)

[5] - Contracts of Employment Act 1963 (now repealed)

[6] - Redundancy Payments Act 1965 (now repealed.) Redundancy provisions are now found

in the Employment Rights Act 1996

[7] - Industrial Relations Act, 1971 (now repealed.) Unfair dismissal rights are now

primarily in the Employment Rights Act 1996.

[8] - Sex Discrimination Act 1975; Race Relations Act 1976

[9] - The Act did not make any substantial changes to the law but brought together all

employment rights previously contained in various statutes including the Employment

Protection (Consolidation) Act 1978 and the Wages Act 1986.

[10] - Department of Labour - Industrial Relations Service -

http://www.nzir.dol.govt.nz/irservice.aspl (update May 2010 - this website now not available)

[11] - Other employment legislation includes the Equal Pay Act 1972; Volunteers

Employment Protection Act 1973; Holidays Act 1981; Minimum Wage Act 1983; Parental

Leave and Employment Protection Act 1987; State Sector Act 1988; Wages Protection Act

1983 and the Human Rights Act 1993.

[12] - The Bermuda Constitution Order 1981 - guaranteeing basic rights for Bermudan

residents, in particular the right to organise trade unions and the freedom of association

[13] - The Human Rights Act 1981 - establishes a number of important and fundamental

rights of the individual which aim to prohibit discrimination on the grounds of race, place of

origin, disability, ancestry, gender, marital status, religious belief and political opinion or

persuasion

[14] - The Trade Union Act 1965 - as revised in 1989 - established the rights of employees to

become members of, or alternatively not to become members of, a trade union

[15] - Ministry of Labour Republic of Singapore maxim http://www.gov.sg

[16] - The Conditions of Employment (Guernsey) Law, 1985; The Industrial Disputes and

Conditions of Employment (Guernsey) Law, 1992

[17] - Article 4, Industrial Disputes (Jersey) Law 1956

[18] - Minor amendments were registered in 1977, 1982 and 1988

[19] - Preamble to the Termination of Employment - Minimum Periods of Notice (Jersey)

Law, 1974

[20] - Memorandum from the Law Officers dated April 18th, 1997 and cited at page 12 of the

consultation document

[21] - 1965 JJ 455 at page 457

[22] - Croner Industrial Relations Briefing Issue No 75 at page 5

[23] - Consultation document page 37

[24] - Project 227/98 Minimum Wage Legislation lodged by the ESSC and adopted by the

States on March 2nd and 16th, 1999