Martin HenryAS THE nation heads back to work after the Christmas and New Year holidays, there are two important matters before the Parliament. Following at least three years of tripartite discussions among employers, trade unions and the Government, the Ministry of Labour has tabled a "Green Paper on Proposals for the Introduction of Flexible Work Arrangements". A Bill of Rights intended to replace and strengthen Chapter III of the Constitution on "Fundamental Rights and Freedoms" is before a Joint Select Committee of Parliament after an even longer period of proposition.
The two matters are closely related as far as the state regulation of work time are concerned. But the Bill of Rights, as constitutional law, stands above the proposed modification of statute laws to permit flexible work arrangements. "The Government", according to the Green Paper, "is fully committed to the introduction of flexible work arrangements. Employers also seem to be fully committed. There is some reticence on the part of the trade unions, and the churches have intervened in defence of days of worship. The Green Paper has been produced to facilitate "full and open dialogue on flexible work arrangements". It should be carefully noted that the 'tripartite' discussions, to date, represent only a limited constituency of interests. The Jamaica Employers Federation represents only a small per cent of the total number of employers. The trade unions represent no more than 10-12 per cent of all workers.
The entry of the churches into the debate brings a far broader constituency of interest into the debate, the largest organised constituency in the country, in so far as the discordant denominations may speak with a single voice on an issue. The role of the third party, Government, in the tripartite arrangement is to balance the interests of all concerned not only in this matter but in all other matters requiring legislative intervention.
In its role as legislative arbitrator, the Government is bound by the provisions and specifications of the Constitution. The principal purpose of a constitution, in its historical origins, is to limit the power of the state and to restrain the Government from arbitrary action. The central contribution which I would like to make to the dialogue on flexible work arrangements is to contextualise the discussion within the framework of constitutional law, particularly of rights and freedom. I would like also to encourage broad, multipartite engagement with the discussion. And responses to the propositions of the Bill of Rights.
Flexitime is already a fact of the Jamaican and world economy. Its further extension is also already guaranteed, without or with government intervention, as the nature and organisation of work continues to change rapidly. The standard eight-hour day, 40-hour week of Monday to Friday is largely an artificial and historically recent creation of industrialisation and industrial relations regulations centred on factory operations. Large areas of work have never been amenable to this routine, areas such as education, health services, sections of agriculture, law, airline flight, media, security services, and many others. What the Government is proposing is the formalisation and regularisation of flexible work arrangements by amending the following existing pieces of legislation, rather than by introducing any new law: Town and Communities Act, Shops and Offices Act & Regulations, Apprenticeship Act, National Minimum Wage Order (1975), Minimum Wage(Garment Making Trade) Order, Women (Employment of) Act (1961), and Holidays With Pay Order (1961).
The provisions of these Acts require careful study, as well as the specific modifications being proposed. A raft of workers' rights are embedded in these pieces of legislation and must be retained and protected. But also embedded in some of them is the unfair legislative protection of one day of worship above all others. When the law forbids commercial activity on one particular day, then everyone who has voluntarily chosen to observe some other holy day of rest is forced by the state to give up a second day, which in effect is a time tax in support of a religion to which one does not subscribe. The rights and freedoms of all citizens, including in this particular instance of flexible work arrangements, must be equally protected by the law.
The Bill of Rights seeks to strengthen the constitutional guarantees of the rights to liberty; freedom of conscience, belief and observance of religious and political doctrines; freedom of peaceful association and assembly; equality before the law; and freedom from discrimination on the ground of religion. These rights and freedoms preclude both the granting of special religious privileges to favoured groups and the denial of religious convictions by the legislative actions of the state. A matter which should concern the Government and all lovers of freedom is the growing application of religious tests by employers to employee recruitment. Had the matter been that of race, colour, gender, class, or political affiliation, there would have been howls of protest.
The Green Paper sets out 14 benefits of flexible work arrangements. Firms, employees and entire economies can enjoy various benefits. But unless carefully handled, there can be significant disadvantages, particularly to employees. One major fear is that flexible work arrangements, sanctioned by law, will deliver employees and their time more fully into the hands of employers, to be deployed largely at the discretion of those employers, who cannot be counted on to be scrupulous and fair. A central obligation of the state and government is to protect weaker parties from the exploitation of the stronger.
The Government is emphasising the importance of "the collective bargaining process" in arriving at flexible work arrangements. This seems to be handing an extraordinarily powerful role to trade unions which workers should remain free not to join. The law and the apparatus of the state should be central to the protection of the rights of all parties engaged in flexible work arrangements, individually or collectively. A very careful and comprehensive spelling out of how this obligation of the Government is to be discharged is now required.
An important first step is the protection of a full 24-hour day of religious observance and rest for the worker, which shall not be a test of employment except under very thoroughly specified conditions. With all the options of flextime, job sharing, compressed work week, shift swaps, and so on, being proposed as elements of flexible work arrangements in the Green Paper, the accommodation of a day of religious observance and rest should be quite feasible in the vast majority of work situations, and failure to do so should be regarded as discrimination on the ground of religion, which is expressly forbidden by the Constitution. Then, the Government should seek to establish boundaries of reasonableness - not an easy thing - in the negotiation of flexible work arrangements between employees and employers, and establish a mechanism of arbitration for disagreements. As citizens we have until March 31 to make our voices heard on this very important issue.
Martin Henry is a communications consultant.
