In 2012, the Tribunal published its first decision under the ERL. Although Maindonald v States Employment Board 147/2010 concerned the question of whether the States Employment Board had properly calculated Maindonald's holiday entitlement, before that point could be addressed the issue was raised as to whether the complaint should be considered by the Tribunal as an individual dispute under Article 86(3) of the Employment (Jersey) Law 2003 ("Employment Law") or as a collective employment dispute under the ERL:
"On consideration of the papers…the Chairman became concerned that this complaint should in fact be heard as a Collective Dispute under the [ERL] and not as an individual employment dispute under the Employment Law…"
A hearing was convened to address this issue.
Article 1(1) of the Employment Law defines an "individual employment dispute" as:
"…an employment dispute which is not a collective employment dispute".
The definition of a "collective employment dispute" is found in Article 5 of the ERL:
"(1) In this Law, “collective employment dispute” means a dispute between one or more employers and one or more employees, where –
(a) the employee or employees concerned are represented by a trade union;
(b) a collective agreement exists between the employer or employers and the trade union; and
(c) the dispute relates wholly or mainly to one or more of the matters described in paragraph (2).
(2) The matters to which this paragraph refers are –
(a) the terms of employment of one or more employees…"
The judgment states:
"Mr Corbel confirmed that Mr Maindonald is a member of Unite and it was apparent from Form JET1 that Mr Maindonald was complaining about the interpretation of one of the terms of his employment. Accordingly the Tribunal is satisfied that Mr Maindonald's complaint is in fact a collective employment dispute for the purposes of the [ERL]."
This is an interesting issue, given the overlap between Article 86(3) of the Employment Law, which deals with individual employment disputes, and Article 5 of the ERL, which deals with collective employment disputes. Article 86(3) does not say that contractual disputes in which an individual is represented by a trade union cannot be dealt with under the Employment Law.
Article 5 of the ERL deals with a broad range of issues including a dispute relating to "…the termination…of employment of one or more employees" (Article 5(2)(c)) and "matters of discipline or grievance" (Article 5(2)(f)). It is evident that a very high proportion of cases which come before the Tribunal concern such matters. Given this, it seems unlikely that it would be have been the intention of the legislator to require all such cases to be dealt with under the ERL where an employee is represented by a trade union and there is a collective agreement in place.
Looking back at the proposition to the ERL (P.19/2005) it is noteworthy that throughout the report to the proposition it states that a:
""collective employment dispute" means a dispute between an employer and employees…"
It is only once one reaches the part of the proposition that includes the draft ERL itself that the full wording of the definition is set out, as per the definition included in the ERL as passed (and as set out above), so that it is a:
"…dispute between one or more employers and one or more employees…"
Doubtless the final wording was drafted in this way for a good reason, but that reason is not evident from the proposition report.
In Maindonald the application of the ERL meant that the claim could not proceed, there being no evidence of unreasonable conduct (further to Article 22 of the ERL) on the part of the States Employment Board in relation to the matter in question.