Pace of legislation and flexible work arrangements

Published: Sunday | December 29, 2013 Comments 0
Minister of Labour Derrick Kellier
Minister of Labour Derrick Kellier

Martin Henry, Contributor

An IMF-stimulated Parliament, sitting up to Christmas Eve, has outdone itself in passing legislation this year. Senator Mark Golding was crowing just before Christmas that the Senate had passed 40 bills up to then, nearly doubling the average for the past four years.

Three long-standing matters of particular concern to me which didn't make it through an invigorated Parliament this year - again - are the Campaign Financing Bill, the Single Anti-Corruption Agency Bill, and legislative amendments for Flexible Work Arrangements.

The first two are connected to my involvement as a member of National Integrity Action; and flexible work arrangements policy has been something I have engaged, since the beginning, some 20 years ago, in this column, in interventions and interactions with the Ministry of Labour, and in appearing before a Joint Select Committee of Parliament. It is flexitime that I want to spend some more time with today.

But first, a word about maintaining and, indeed, increasing the 2013 pace in Parliament.

The House of Representatives must sit more often. The job of MP was constitutionally intended to be a full-time job, not a diversion from real business for a couple of afternoons per week for part of the year.

Support for the legislative process must be ramped up. Drafting capacity in the Office of Parliamentary Counsel must be expanded. The leaders of government and opposition business in both the House of Representatives and the Senate must improve bipartite consultation and the management of the legislative agenda, and run a tight ship to deliver on that agenda.

Managing procedures

The Speaker of the House and President of the Senate must manage parliamentary procedure and the Standing Orders for minimum distraction and maximum productivity.

Government has been mulling flexible work arrangements since at least 1994 when a Green Paper on the matter was first tabled. But flexitime is already a fact of life in the Jamaican workplace, as around the world. Anything which is not a nine-to-five, eight-hour workday, Monday to Friday, capping at a 40-hour workweek, after which overtime pay is due, is some kind of flexible work arrangement.

What the Government has been proposing in a record-breaking ebb and flow of debate, discussions, consultations and papers is not a new law but the amendment of some two dozen pieces of labour-related legislation to remove impediments to employers and employees negotiating a flexible workweek of 40 hours in a variety of configurations over all seven days of the week, over all 24 hours of the day, with no single work period longer than 12 hours, and without overtime rates kicking in until the 40 hours have been completed.

Many advantages have been proclaimed for flexible work arrangements. Speaking in the Sectoral Debate back in June, the current Minister of Labour Derrick Kellier repeated many of the proposed benefits.

"Jamaica," the minister said, "stands to reap many of the potential benefits of flexible work arrangements, including: increased employment as persons exploit part-time work, opportunities for second employment and job-sharing, increased productivity, and more time for family and personal interests; particularly if a compressed workweek is utilised."

Employers will be better able to deploy their staff outside of the traditional standard work hours and workdays without incurring additional costs for the payment of special rates. Employees would, of course, be losing those special rates.

White Paper

Minister Kellier on June 4 said a Ministry Paper would be tabled "shortly". Flexitime, having not attracted IMF interest for fast-track legislation, it wasn't before December 10 that Minister of Finance Dr Peter Phillips announced to a Labour Market Forum that a White Paper had been prepared and would be made available for public consideration. December 10 is the United Nation International Human Rights Day.

In the early days, Government conducted tripartite discussions on flexitime, discussions involving itself, employers and trade unions. The Church quickly realised that it had serious interests at stake and muscled its way into the discussions, making them multipartite. Other religious groups, the Hindu, Muslim and Rastafarian communities in particular, were later invited.

The majority of Jamaican workers are not members of any trade union. Less than 20 per cent are. In the United States, with accurate data from their Bureau of Labour Statistics, the figure for 2012 was 11.3 per cent. Public-sector workers there had a union membership rate of 35.9 per cent, more than five times that of private-sector workers at 6.6 per cent. The trade unions can hardly, then, be seriously considered as the (sole) voice of employees.

Benefits conceded (I am both a beneficiary for most of my working life and a supporter), flexible work arrangements involve fundamental human-rights issues which must be resolved in going forward. There is a clear asymmetry of bargaining power in the negotiations between employer and employee for flexible work arrangements, with the employer in a soft labour market generally having much greater power.

Government, from the start, has adopted the role of advocate for flexitime. The Government will now have to, in clear and concrete fashion, adopt the role of arbitrator and dispenser of justice before there is any sign off on flexible work arrangements. An arbitrative mechanism must be established to which every employee will, in principle, have access in their individual right without or with recourse to trade union membership.

One of the biggest concerns is "protection of freedom of religion", which is guaranteed by Section 17 of the constitutional Charter of Fundamental Rights and Freedoms which took the somewhat shorter time of 17 years to become law. "Every person," the Charter declares, "shall have the right to freedom of religion, including the freedom to manifest and propagate his religion in worship, teaching, practice and observance."

Flexible work arrangements cannot be signed off without the protection in law of a 24-hour day of worship.

The law should go further and outlaw any demand for declaration of religious affiliation, like race or political party, as a condition for employment in any enterprise, private or public, with certain qualified exceptions such as faith-based organisations and enterprises which demonstrably conduct the vast majority of their business on holy days.

Martin Henry is a communication specialist. Email feedback to columns@gleanerjm.com and medhen@gmail.com.

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