‘Don’t wait until judgement day’

President of the Bustamante Industrial Trade Union (BITU) Senator Kavan Gayle says companies that engage workers on fixed-term contracts should pay keen attention to their arrangements given the recent high court ruling in the case involving Marksman Limited and the National Housing Trust that security guards are employees and not independent contractors.

“We view that as the right judgement made by Justice Batts. We have always said independent contractors, as they have it, are in fact workers under the definition of a worker and that definition expressly indicated what a worker would be and these security guards and any other worker on a fixed-term contract should be treated as workers because you control and direct what services they provide,” Gayle told the Jamaica Observer on Monday.

“I gather that the security companies are having their consultations as to how to treat with it, but I would advise all other employers who have fixed-term models of that type not to wait until judgement day to make the requisite changes,” the BITU president warned.

“They should learn from this and make the requisite changes in their employment policies because it’s not going to go away,” he added.

A fixed-term contract is an employment contract by which an employer recruits an employee for a limited period of time.

Jamaica’s Labour Relations and Industrial Disputes Act of 1976 speaks to an employee’s obligation under a contract but does not address the issue of a fixed-term contract — which many Jamaicans have signed on to as a part of their work arrangement. Workers employed on fixed-term contracts do not receive the benefits that permanent employees enjoy.

In the meantime, Vincent Morrison, president of the Union of Clerical Administrative and Supervisory Employees (UCASE), said the entity is still waiting on the Labour Ministry to respond to communication sent some two weeks ago urging the setting up a joint industrial council for the security guard industry.

“It is going two weeks now and we haven’t gotten any acknowledgement of our letter,” Morrison said, noting that the court ruling was the impetus for the call.

He said the letter set out the basis along which the union thinks the ministry should approach the matter and also reminds the ministry that years ago, under the leadership of then Labour Minister Horace Dalley, attempts were made to put a council together. According to Morrison, the group had been established but had not survived.

According to the UCASE head, a constitution was put together but when the agreement was to be signed the now head of the Jamaica Society for Industrial Security (JSIS) took the position that the time wasn’t right.

“It came back to haunt them because if that was done, it is about 20 years now, we wouldn’t be in this position now. The council would serve the purpose of bringing the tripartite partners together,” Morrison stated. He said the body would serve to thrash out matters affecting guards on a timely basis and discuss matters affecting the industry.

“So, issues like the statutory payments if there was a joint industrial council the housing trust would not have had to go to the courts because that is one of the issues the council would handle. It really is a platform to discuss not only terms and conditions of employment but wider issues affecting the industry,” the UCASE head pointed out.

In the matter which saw the National Housing Trust hauling Marksman Limited before the courts over statutory deductions in March this year, the judgement for which was handed down on Friday, September 23, 2022, the court ruled that effective then, third party security guards employed to Marksman Security Limited are employees and not independent contractors and that the company should immediately begin paying over their three per cent National Housing Trust statutory contributions. The court’s decision established a precedent for all private security companies who engaged security officers as independent contractors.

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