Pace of legislation and flexible work arrangements

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.