O'Neil Grant | Contract employment an exploitation loophole
Contract employment in the public sector is temporary employment and represents an involuntary choice by workers vs permanent employment.
Fixed-term contracts (FTC) represent a lower level of protection for workers in terms of termination of their employment, as no reason need be given by the employer to end the relationship. There is no option for employees to transition to permanent employment, and these workers face higher risks of unemployment, as they have no protection under the law.
As a result of this risk, the contract worker is paid a premium of 25 per cent of salary as a gratuity. However, the base salary for the majority of these workers are low relative to the risk that they bear , and unfortunately, fixed-term contracts with a gratuity is confined to certain levels of staff, and the duration of the contract must be for at least two years.
To counter this, agencies of the State have reverted to using contracts for low-level jobs and for terms as short as three months to one year. This has resulted in significant compensation inequality in the public sector. This inequality is exacerbated in that these temporary workers cannot access benefits if the contracts are for less than two or three years in duration.
In Jamaica, there is no maximum legal duration of FTCs, including renewals. Therefore, we see workers labouring in excess of 10 years in fixed-term contracts, again with no route to transition to permanent employment and would eventually not qualify for a pension.
Workers engaged in FTCs are vulnerable in that they have no voice in the workplace and are oftentimes reluctant to join a trade union out of fear that their contract may be terminated or not renewed. Employers also do not invest in training of contract workers simply because the employment relationship is uncertain and certainly not long enough for a positive return on that investment.
ILO Convention 158 did not go far enough to protect workers in FTCs, and national policies, in turn, do not extend any protection to these employees. The Laboour Relations and Industrial Disputes Act would have amended the definition of the worker, and cases at the Industrial Disputes Tribunal would have offered some improved protection, but we now see more stringent terms being included in contracts to deny workers protection from arbitrary termination.
We have also seen the portion by some private-sector interests of contract employment due to what is perceived as the inability and cost to employers to observe the due process rights of workers, something that we have seen happen at the Firearm Licensing Authority.
FTCs in the Jamaican public sector are used to:
• Decrease wage-related costs.
• To limit the costs associated with termination of regular employees.
• To bypass the industrial-relations machinery.
• To eliminate collective bargaining in the public sector, particularly in light of the non-ratification of ILO Convention 151.
• To remedy this weakness, ILO Recommendation 166 attempts to provide details of the legal rules that prevent abusive FTCs by:
• Limiting the use of fixed-term contracts to certain cases only where the employment is for a determined period, like projects.
• Deeming contract for a specified period to be of determinate duration, i.e., not possible for renewal.
• Deeming contract for a specified period when renewed on one or more occasions to be contracts of indeterminate duration.
Jamaica would not have ratified Convention 158, but uses it in the treatment of termination. It would have accepted Recommendation 166, but does not adhere to its application in dealing with contract employees.
The labour movement would have injected worker-protection clauses into its various MOUs and CBAs with the Government since at least 2004. We would have signed the Partnership for Jamaica Agreement that highlights a commitment to pursuing the Decent Work Agenda. Contract employment and how it being used in the Jamaican public sector must be addressed now.
- O'Neil W. Grant is president of the Jamaica Civil Service Association. Email feedback to firstname.lastname@example.org.