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Flexi-week challenges

Published:Sunday | September 14, 2014 | 9:00 AM

More discussions needed on 'rest day'

Shena Stubbs-Gibson

Last week, the Jamaica Umbrella Group of Churches (JUGC) called on the Government to ensure certain provisions were included in the proposed flexi-week legislation.

JUGC chairman, the Reverend Conrad Pitkin, was reported as saying that his group wanted assurances built into the legislation that the 'rest day' would be entirely a decision for the worker, and that the employer would have no input in same.

With the passage of the Flexi-Week Act several other legislation, including the Excise and Duty Act, will be amended to provide that the rest day for workers means a day (not being a public holiday) arrived at by agreement between the employer and the employee, which is to be then excluded from working days.

I am sympathetic to the unintended consequence that the JUGC is trying to avert, namely, that of employers being the ones effectively determining the rest day with employees having little choice but to go along for fear of losing their jobs; however, is this suggestion practical?

If employers are to have no say in deciding the rest day, then business operators would be entirely at the whim of employees, in so far as arranging human resources to cover the needs of their businesses. Such a concession as requested, could then prove even more costly to employers if, for instance, too few workers opt to work on a particular day and extra labour had to be contracted.

I agree with the JUGC though that some mechanism should be put in the legislation to protect the employee (usually the weaker party in an employer/employee situation) but any such mechanism must be balanced so that it does not ultimately prove inimical to continued business viability. Maybe a workable compromise would be to give the determination to the employee, but the employer would have to consent to the rest day selected by the employee with such consent not to be unreasonably withheld.

An employment tribunal could then be given the authority to determine, on a case-by-case basis, whether the consent was unreasonably withheld.

Definition of rest day

Pitkin is also reported as saying that his group wants the rest day to be a full 24 hours, especially for the Seventh-day Adventists. It is not clear what Pitkin meant by "full 24 hours" and I will resist the temptation to clarify for him. However, the reference led me to think about the special case of the Seventh- day Adventists. With the passage of the flexi-week legislation, the cap on workdays being no more than eight hours per day will be increased to 12 hours. As currently obtains, most Seventh-day Adventists work eight hours on a Friday, which usually sees them completing their hours of work before sundown. With the passage of the flexi-week legislation, however, employers in affected industries will be allowed to extend the working hours of employees beyond eight hours on any normal working day without having to pay overtime.

This is because the proposed legislation does not require that the employee has a say in determining his/her working hours on a particular working day, once the employee is not asked to work more than 40 hours for the week.

An affected place of business may, therefore, decide it is more beneficial to operate later on a Friday with a full staff complement and close earlier on a Monday, for instance, or to operate later on a Friday evening with a full staff complement, followed by a reduced staff complement on a Monday when business may be slower. In any of these scenarios, the worker who is a Seventh-day Adventist would now find himself/herself having to decide whether to work on Fridays and finish working after sunset or apply for the Friday as a rest day.

This, however, would raise another issue, not resolved by the legislation as currently drafted, as the Seventh-day Adventist worker would require not only the Friday evening off but also much of the Saturday (which would now largely be classified as a normal working day). In these scenarios, therefore, could worker from that denomination chose 6 p.m. on Friday to 6 p.m. on Saturday as his/her rest day? Or, does the "full 24 hours" have to be within one day of the week but not part of two days.

I am with the JUGC that the rest day should be defined in the legislation in terms of hours and not day of the week (if indeed, this is the contention), but this is exactly why the employer's input has to be factored in the determination of the rest day.

Choosing which 24-hour period to take off from work, as distinct from which day, may be disadvantageous to any business as an employee's absence could stretch across two days as distinct from one, and could be structured in a such a way by the employee that the rest day covers two successive periods, during which the business can scarce afford staff shortage. If the JUGC's proposal is accepted in this regard, I submit that it is also important to state in the legislation that the 24 hours should be counted consecutively; anything else could lead to mass confusion.

Shena Stubbs-Gibson is an attorney-at-law and legal commentator.Send feedback to:Email: shena.stubbs@gleanerjm.comTwitter: @shenapat