Orville Taylor | I told you so, they are workers

Almost 18,000 women leave their homes every morning or night to work 12 hours. Sometimes they do double or triple shifts. Based on a natural distribution of the population at least 18 per cent of them live alone with their children, without a residential male. Not that they may not have a male partner or even externally supportive babyfather.

Given that the non-nuclear family household becomes more visible as we lower the status of females, my estimation is that more than 25 per cent of these women wearing the uniforms live with their children alone. A present, I am trying to complete conversations with the Government regarding the status of industrial security officers and the way forward, based on yet unpublished but very revealing research. Therefore, the comments about the sector will be general and peripheral but accurate.

On September 23, Justice David Batts delivered the judgment in the Revenue Court, asserting that the security officers engaged to Marksman Security, part of the largest group of security providers, are workers and not contractors. This is a battle which has been going on in the courts since 2017 but has been around so long that it could have earned a pension. Of course, most of the guards do not.

CONFIRMED WHAT WE KNEW

This is old news. Justice Batts confirmed what we all knew long ago. A person who works or normally works under controlled conditions determined and dictated by another is a worker, employee or simply working under a contract of service or contract of employment. As subtle as a distinction may appear between a contract of service and a contract for services, the considered opinion has been that workers or other individuals who are engaged to only supply their labour are de facto workers.

Anyone who has studied labour law or industrial relations will have no issue in making the distinction. An attempt was made to act decisively in 2001 but despite my warning in several University of the West Indies (UWI) and other academic fora since 2000, the Labour Relations and Industrial Disputes Act (LRIDA) was amended and a ‘worker’ was now defined as, “… an individual who has entered into or works or normally works (or where the employment has ceased, worked) under a contract, however described, in circumstances where that individual works under the direction, supervision and control of the employer regarding hours of work, nature of work, management of discipline and such other conditions as are similar to those which apply to an employee.”

Of course, definitions are not transferable across legislation. However, even the LRIDA did not have a definition of ‘employee’. Thus, there was always space for dishonest employers and their legal advisers to argue that their salaried personnel were contractors. For the record, Jamaica has long had a history of security workers being seen as workers. Long before the hired guns have come in the media to assert that security workers were contractors, the industry used to negotiate via a joint industrial council (JIC) like sugar, construction and mining. I recall many cordial but fierce negotiations with Rob Chung, a solidly built man of Chinese extract, who, though representing the companies, was a fierce defender of the rights of workers.

It was an era of many industrial disputes but relatively low numbers of complaints by vulnerable workers to the Ministry of Labour’s first floor and low societal violence and homicides. There is a Morant Bay Revolt message here.

APATHETIC

It is uncertain when the ‘contractor’ definition began, but clearly, respective governments and stakeholders were apathetic if not complicit. Contractors under the LRIDA are not workers and, therefore, cannot have their dismissals interrogated by the Industrial Disputes Tribunal and not entitled to redundancy payments, sick or vacation leave and certainly not maternity leave.

The sociological impact of this and the social pathologies which came out this new norm of disguised contracts are much of what we are reaping now. Look out for more scary findings.

Indeed, the International Labour Organization had long baulked over the subject of ‘disguised contracts’ and across CARICOM the definition of ‘worker’ includes dependent contractors, who only supply their personal services. Despite the money and time spent, government, opposition, private sector, trade unions and even my senior colleagues at the UWI knew from the early 2000s that despite not being a monolithic group, the irrefutable evidence was that guards were all workers.

With this fact in mind, it is disingenuous to suggest that the judgment was a surprise. The companies all knew what they were doing. The truth is that, they did it because government, the consumer of around 60 per cent of their services, also benefited. We perhaps also should try to examine which other brokers of power and influence also benefited.

Doubtless, there is going to be significant economic impact likely resulting in a number of security companies closing down and a percentage of the 24,000 security guards being retrenched. But like squatter settlements, which were allowed to grow to being systemic, it is time to ‘bell’ the cat. There is no easy way forward. But in a free market economy, where protectionism is virtually unlawful, the time would have come when the government would have to swallow the blue pill.

This might not be The Matrix but Neo must stand up, make hard decisions and split justice right in the middle.

Dr Orville Taylor is senior lecturer at the Department of Sociology at The University of the West Indies, a radio talk-show host, and author of ‘Broken Promises, Hearts and Pockets’. Send feedback to columns@gleanerjm.com and tayloronblackline@hotmail.com.