Scrutinising contract work
Jamaica
The claim by trade unionist Rudolph Thomas that fixed-term contracts are being “weaponised” against workers is another reminder of the government’s lagging labour market agenda, including its failure to seriously engage Jamaicans on a labour market reform report completed more than two years ago.
And neither has there been any substantial, government-led public discussion on the implications for the broader labour market of the 2022 ruling by Justice David Batts, with respect to security guards, which dealt with many of the issues of concern to Mr Thomas. In the aftermath of Justice Batts’ ruling the former labour minister, Karl Samuda, announced a committee to plan for a joint industrial council for the regulation of the private security industry “and protection of the security guards”. Little has been heard of that initiative.
Fixed-term contracts are, one the face of it, agreements between workers and employers for employment for a specified period. During that time, employees are, by and large, intended to complete specific tasks, then move on.
However, in Jamaica, trade unionists, and some political leaders, complain that such contracts are increasingly becoming the norm in employment – even when workers stay in the jobs for years.
Fixed-term contracts, critics say, are used by firms to avoid providing benefits, including pensions, to employees and the status tenuous.
“If we continue on the trajectory that we are with the misuse of fixed-term contracts, we are going to have a serious problem down the road,” Mr Thomas, a vice president of the Jamaica Confederation of Trade Unions (JCTU), told a workshop of the Labour Advisory Council.
PRECARIOUS FORM OF EMPLOYMENT
While conceding that there was a place in the economy for these arrangements, Mr Thomas argued that over the past three decades fixed-term contracts have been deployed in a way to cause “a most precarious form of employment – and that has an impact not only on labour, but also, we believe, on the national well-being”.
When he was in the job, Peter Phillips, the former leader of the opposition People’s National Party (PNP), regularly raised concerns about the arrangements, complaining in the 2019 budget debate, for example, that workers covered by them were entitled to neither vacation, sick pay, bargaining rights, nor “protection against wrongful dismissal”.
“They (workers) will have no pension when they retire,” he said. “Yet, in every other respect they are expected to be as productive and as invested in the work as another full-time employee.”
Justice Batts caused renewed focus on these issues in a 2022 ruling in which he held that security guards engaged by Marksman Limited were employees, rather than independent contractors. The company was therefore obligated to make payroll contributions (three per cent) on behalf of the guards to the National Housing Trust (NHT), which had claimed J$478 million for 3,000 employees over a 16-year period.
However, because the NHT had not enforced its right to collect for more than 30 years, the judge held it wouldn’t be just to allow the trust to collect the ‘debt’.
Nonetheless, Justice Batts concluded that on the basis of their contracts, the guards, some of whom were employed to Marksman for decades, were “not in business on their own”..
“… They work for Marksman and are a part of its organisation,” he wrote. “Marksman has the right to exercise direct control over the work done by the security guards.”
CLEARER PROTECTION
While Jamaica’s Labour Relations and Industrial Disputes Act defines a worker/employee (largely along the lines noted by Justice Batts), labour analysts feel that there is need for clearer protection for employees who work under fixed-term contracts – a system that tends to be less attractive to older workers, who are likely to value security. The UK – where people employed on fixed-term contracts are required to be treated no less favourably in the workplace than permanent employees – is sometimes held up as a potential model for Jamaica. In that market, a worker employed continuously for four years under such contracts is automatically treated in law as a permanent employee, unless their employment can be objectively interpreted otherwise.
These approaches should be seriously explored in Jamaica, not only in the narrow sphere financial cost/benefit analyses to firms, but the broader value of employment security to the society and the philosophical frame within which such considerations sit.
In that regard, we note the rhetorical question of Jamaica Employers Federation president, Wayne Chen, of whether it was moral corruption or “economic forces” that drive employers to “misuse” fixed-term contracts. These ought not to be mutually exclusive issues. For, as Mr Thomas implied, there is a difference between the appropriate use of fixed-term contracts and their weaponisation – such as when they rolled over, almost in perpetuity.
What Mr Chen’s observation highlights is the need for a deeper look at Jamaica’s labour market and its underpinnings, and how these should be reformed. As part of this agenda, for instance, work on the national unemployment insurance scheme, long suggested by this newspaper, as well as a national health insurance scheme should be accelerated. Similarly, an overhaul of the redundancy law should be considered.
Perhaps the way to (re)ignite these discussions is by the labour minister, Pearnel Charles Jr, re-tabling in Parliament the labour market reform report submitted by the Marshall Hall Commission five years ago, and inviting the public to comment on it.
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