Employment (Amendment No. 6) (Jersey) Law 201- Lodged for debate

Information about the publication of Ministerial Decisions

A formal published “Ministerial Decision” is required as a record of the decision of a Minister (or an Assistant Minister where they have delegated authority) as they exercise their responsibilities and powers.

Ministers are elected by the States Assembly and have legal responsibilities and powers as “corporation sole” under the States of Jersey Law 2005 by virtue of their office and in their areas of responsibility, including entering into agreements, and under any legislation conferring on them powers.

An accurate record of “Ministerial Decisions” is vital to effective governance, including:

demonstrating that good governance, and clear lines of accountability and authority, are in place around decisions-making – including the reasons and basis on which a decision is made, and the action required to implement a decision
providing a record of decisions and actions that will be available for examination by States Members, and Panels and Committees of the States Assembly; the public, organisations, and the media; and as a historical record and point of reference for the conduct of public affairs

Ministers are individually accountable to the States Assembly, including for the actions of the departments and agencies which discharge their responsibilities.

The Freedom of Information Law (Jersey) Law 2011 is used as a guide when determining what information is be published. While there is a presumption toward publication to support of transparency and accountability, detailed information may not be published if, for example, it would constitute a breach of data protection, or disclosure would prejudice commercial interest.

A decision made 4 October 2010 regarding: Employment (Amendment No. 6) (Jersey) Law 201- Lodged for debate.

Decision Reference: MD-S-2010-0062
Decision Summary Title :	DS - Redundancy amendment Lodged		Date of Decision Summary:	4 October 2010
Decision Summary Author:	Policy Principal		Decision Summary: Public or Exempt?	Public
Type of Report: Oral or Written?	Written		Person Giving Oral Report:	N/A
Written Report Title :	WR - Redundancy amendment Lodged		Date of Written Report:	4 October 2010
Written Report Author:	Policy Principal		Written Report : Public or Exempt?	Public
Subject: Employment (Amendment No. 6) (Jersey) Law 201- lodged for debate
Decision(s): The Minister decided to lodge ‘au Greffe’ for States debate the draft Employment (Amendment No. 6) (Jersey) Law 201-.
Reason(s) for Decision: The draft amends Articles 60B, 60E, 60F and 60H of the new articles that would be inserted into the Employment (Jersey) Law 2003 by the Employment (Amendment No. 5) (Jersey) Law, 2010 (yet to be enacted). Article 60B is amended so that employees working less than 8 hours per week would qualify for a redundancy payment, in accordance with the Minister’s original intention. Article 60E is amended so that an employee who is made a reasonable offer of the same, or similar, suitable employment to start within four weeks would not be entitled to a redundancy payment, in accordance with the Minister’s original intention. Articles 60F and 60H would be amended so that the collective consultation requirements would be triggered when an employer proposes 12 or more employees for redundancy in a 30 day capture period; the protective award where an employer fails to consult with union representatives and elected staff representatives would be up to 9 weeks pay; and claims for a protective award would only be taken to the Tribunal by union representatives and elected staff representatives, rather than individuals, other than where representatives have not been appointed in accordance with the law.
Resource Implications: There are no financial implications.
Action required: Policy Principal to request the Greffier of the States Greffe to arrange to lodge ‘au Greffe’ the Proposition on 5 October 2010, for States debate on 16 November 2010.
Signature:		Position: Minister
Date Signed:		Date of Decision (If different from Date Signed):

Employment (Amendment No. 6) (Jersey) Law 201- Lodged for debate

Accompanying report - Employment (Amendment No. 6) (Jersey) Law 201-

This draft Law would amend the Employment (Jersey) Law, as amended by the Employment (Amendment No. 5) (Jersey) Law 2010 (subject to States approval of the Appointed Day Act).

The amending law address three specific issues relating to redundancy.

1. Qualifying period of employment

The law as drafted provides that an employee's period of employment would be computed in accordance with article 57 of the Employment Law which states that only weeks in which an employee works for more than 8 hours will count. An employee who works for less than 8 hours per week would therefore not qualify for a redundancy payment.

Article 60B is amended so that employees working less than 8 hours per week would qualify for a redundancy payment, in accordance with the Minister’s original intention; that the right to a redundancy payment should apply to employees who have at least 2 years' continuous service, irrespective of the number of hours worked per week. The intention was to avoid issues of indirect sex discrimination that might arise if employees who are contracted to work for less than 8 hours per week are excluded from protection.

2. Offer of alternative work - Article 60E

In the process of making some improvements to the draft legislation, two paragraphs were inadvertently removed from the draft law. The effect is that an employee who is made a reasonable offer of the same or similar, suitable employment to start within four weeks of termination is free to refuse and take a redundancy payment. This was not the Minister’s intention.

Article 60E is amended so that an employee who is made a reasonable offer of the same, or similar, suitable employment to start within four weeks is not entitled to a redundancy payment, in accordance with the Minister’s original intention.

3. Collective Consultation – Article 60F

The draft Employment (Amendment No. 5) (Jersey) Law 2010, as proposed to the States, provided that employers would be required to consult collectively with trade union representatives and elected staff representatives when proposing 21 or more redundancies in a 90 day period. The States however approved an amendment to provide that employers will be required to consult collectively when proposing to make 6 or more non-unionised employees, or 2 or more unionised employees, in a 90 day period.

The Minister directed the Employment Forum to consult on the collective redundancy process in view of the impact of the reduced thresholds and, on the basis of strong consultation responses, the Forum recommended that the threshold should revert to 21 or more proposed redundancies in a capture period of 90 days.

The Minister is convinced that the low number of proposed redundancies, as currently drafted, does not represent a collective redundancy situation. Employers are already required to consult employees individually about redundancies to avoid claims of unfair dismissal and associated penalties. Collective consultation is intended to provide an appropriate method of consultation about issues that will affect a large group of employees, rather than individual issues that would be discussed individually with employees.

The Minister proposes the following amendment;

i. The collective consultation threshold should be set at 12, so that an employer proposing to dismiss as redundant 12 (both unionised and non-unionised) employees within a capture period of 30 days is required to consult with union representatives and/or elected staff representatives. The Minister balanced the Forum’s recommendation against the wishes of the States Assembly and proposes the Forum’s suggested alternative as a pragmatic solution in view of some support from consultation respondents.

The Minister proposes the following amendments, in accordance with the Forum’s recommendations;

ii. The maximum protective award shall not exceed 9 weeks’ pay.

iii. On the basis that the process relates to collective rather than individual issues, a claim for a protective award may only be taken to the Tribunal by union representatives and elected staff representatives, rather than individuals, other than where representatives have not been appointed, but should have been.

Financial and manpower implications

There are no additional financial or manpower implications arising from this proposition. The existing budget for employment relations, which includes the cost of providing the Employment Tribunal and the Jersey Advisory and Conciliation Service, is sufficient for the implementation of this legislation.