Orville W. Taylor, Contributor
I DON'T want to belabour the subject but there is just too much uninformed discussion going on regarding the industrial climate in Jamaica generally and specifically in the minerals industry, where a 'bauxite' of an impasse is brewing.
Minister of Labour, Horace Dalley, has attempted to mediate a dispute regarding, 'private contractors' engaged to JAMALCO, the mostly government-owned bauxite company. These individuals reportedly engaged as contractors on paper are made to register themselves as sole traders. Dalley declares that they are not workers and therefore ineligible for union representation. True! Private contractors are generally not considered workers and one has to be a worker to be a trade union member. Right?
Wrong! Freedom of association is a universal right for all citizens and even employers can be members of trade unions.
Case in point: the Jamaica Employers' Federation (JEF) is a recognised trade union under the Trade Union Act. Members of trade unions are free to take industrial action, which also includes 'lock outs' initiated by employers.
Nonetheless, what most people don't know is that every single time when workers withdraw their labour, whether in pursuance of a legitimate industrial dispute or otherwise, they break their contracts. Whenever any contract is breached, the perpetrator becomes liable to its termination. Simply put, every time workers strike, whether unionised or not, they can be dismissed. However, the employer cannot conclude that they have abandoned their jobs if they act "in contemplation or furtherance" of an industrial dispute. Nonetheless, he or she may legally fire them.
This is what JAMALCO did in 2001 after workers represented by Lambert Brown's University and Allied Workers' Union (UAWU) withdrew their labour. Brown never supported the 'strike'.
EMPLOYER/WORKER RELATIONSHIP
As has become a model in recent years, the unionised workers were terminated and some re-engaged, only after being required to be registered as sole traders. From all accounts, except management's, their terms and conditions of employment point to an employer/worker relationship with the company.
What is happening at JAMALCO is symptomatic of negative industrial policies that come with the new wave of globalisation since 1995. In a world where the World Trade Organisation (WTO) enforces standards but the older and more democratic International Labour Organisation (ILO) cannot, employers, including governments, are free to do whatever they please especially if the workers have no recourse.
Interestingly, Dalley is the same minister who successfully initiated action against Marksman Security, which had similarly maintained that the individuals were not workers but contractors.
The truth is, while the trade unions slept or were too enthralled by the then Ministers of Labour, Section 2 of the Labour Relations and Industrial Disputes Act (LRIDA) was amended to define dependent contractors as workers. In my consistent opinion, they are workers even under this flawed piece of amended legislation. Some of the acid test questions to determine whether private contractors are workers, include their integration within the normal operations of the business; whether they invest money and take on risks; they being provided tools, uniforms and other instruments of the job; and, whether they can determine what to do and when.
Regarding disguised contractors, the ILO has placed this as one of its priority areas and commissioned two major studies in CARICOM, one of which I completed.
Horace needs to not 'Dalley' around the issue and call a spade a spade. I know that the Government is a major shareholder in this bauxite company, so perhaps he is unfairly 'mining' the government business.
Speaking of fairness in industrial relations, the unions are preparing for negotiations for a new "memorandumb" of understanding (MoU). Needless to say, they are opposed to any wage freeze. Personally, for any MoU to work, it must be part of a larger social partnership agreement or social contract and not simply a narrow bilateral accord between élite unions and the government.
BARBADOS EXAMPLE
Take a page from Barbados. In 1991, they were faced with declining foreign exchange earnings, debt, unemployment and the prospect of devaluation. In response, patriotic employers initiated a dialogue of wage restraint, including a reduction of salaries even for senior government officials. This general economic policy included a determination to protect the 'Bajan' dollar, which has remained at $1.98 to the US$1 for more than 20 years. It comprised sensitive banking policies, price restraints and a 'buy Barbadian' campaign. At the same time, there were reductions in the provisions of the Severance Payments Act, although with a clear understanding that redundancy payments are inalienable rights to workers.
For the record, Barbados has an overall better economic picture than Jamaica, higher life expectancy, a better-educated population, better redundancy protection and believe it or not, 60 per cent of its workforce is unionised, compared to a declining 18 per cent in Jamaica.
In contrast, in 1996, when the Jamaican Government brought the issue of social partnership to the table again, it did so from the confines of the inner circle of the Cabinet, excluding then Minister of Labour, Portia Simpson. It was a 'top down' imposition that did not incorporate the main social partners until after the fact. Even now, the Private Sector Organisation of Jamaica (PSOJ), Jamaica Chamber of Commerce and the JEF are external to the MoU although the affected government workers purchase their services and goods.
Furthermore, the outgoing and 'outgone' Prime Ministers now have hefty pension packages. They retire leaving their successors to negotiate salaries with a disadvantaged public sector that is more difficult to appease than two years ago. "M owe you more."
Dr. Orville Taylor is senior lecturer in the Department of Sociology, Psychology and Social Work at the University of the West Indies, Mona.
