Question: Outline the main features. Of all of the following Jamaican

Laws. What are their deficiencies relative to employee welfare?

The maternity Leave Act of 1979

The Labour Relations and Industrial Disputes Act (LRIDA)

The Holidays with Pay Act 1973

The minimum Wage Act 1975

The Employment (Termination and Redundancy Payments) Act 1974

Due to the increased industrial activity in Jamaica in the 1900s, there was a

recognized need to enact some form of legislation that could serve as a kind of

“cooling agent” for the labour force. The labour force was becoming larger and

more demanding due to the haunting presence of unions. Consequently, several

acts followed in the 1940s and beyond, with those in the late 1900s leaving an

indelible mark on Industrial Relations in Jamaica today.

To enforce the legislative actions which were taking place in the country during

the 1900s, a significant milestone was achieved. This was the establishment of

the Ministry of Labour on May 5, 1953. Formerly known as the Unemployment

Registration Bureau, the conversion to the Ministry of Labour was described by

F.A. Glaspole, the then Minister of labour as “another milestone in the process of

our constitutional development.”

Labour law defines the rights and obligations of workers, union members and

employers in the workplace.  Generally, labour law covers Industrial relations in

relation to certification of unions, labour-management relations, collective

bargaining and unfair labour practices. Workplace health and safety.

Employment standards which includes general holidays, annual vacations,

working hours, unjust dismissals, minimum wage, maternity leave, layoff

procedures and severance pay. The following labour laws will be discussed:

The Minimum Wage Act 1974

The Holidays with Pay Act 1973

The maternity Leave Act of 1979

Labour Relations and Industrial Disputes Act 1975

The Employment (Termination and

Redundancy Payments) Act 1974

The fixing of minimum wage is one method of state intervention in employer –

employee relations which is accomplished through the Minimum Wage Act and

the Orders which follow. The act was passed into law on December 22, 1938

and amended in 1974 to allow for the appointment of a minimum wage advisory

council to take over the functions of the old minimum wage advisory board

established under the 1938 Act, and for the purpose of fixing a national minimum

wage. Under section 3 of the Act, the minister may by Order publish in the

Gazette fix minimum rates of wages for any occupation in the island either

generally or in any specified area. The Order may regulate the hours of work or

other terms and conditions of employment or service, may fix different minimum

wages in different categories of establishments in the same industry and may

provide for the exclusion of any category of workers from the National Minimum

Wage. The Minimum Wage Advisory Council functions are to consider and

advise the Minister on all matters relating to national minimum wages and any

other minimum wage which may be fixed, to obtain and record information in

relation to wages and other remunerations, terms and conditions of work and to

keep under review all minimum wages fixed by the minister and to make

recommendations to the Minister as regards to any changes. Features of the

National minimum wage Order are: “normal working day” is defined as any day

on which a worker is normally required to work for his employer, but does not

include a rest day or a public holiday. A “rest day” is the day allowed to the

worker during the week when he is off the job. The day on which the rest day

falls shall be determined by agreement between the worker and his employer.

“Weekly workers” mean workers who by agreement with their employers,

regularly work for not less than 40 hours per week for any one employer. “Hourly

workers” mean workers who usually work for less than 40 hours per week for

their employer. Wage means remuneration in money and does not include the

value of any lodgings or food or by any other benefit conferred upon the worker

by his employer. “Worker” means an individual who has entered into a contract

with an employer, whether the contract is expressed or implied, oral or in writing

and includes anyone employed aboard any aircraft or ship registered in Jamaica.

A casual worker defined as one who is employed from day to day for the

performance of a particular task which normally cannot be performed in less than

one working day, is entitled to four hours pay if the person reports for work but as

a result of special circumstances is unable to work or to eight hours pay if the

number of hours for which he is required to work is more than four but less than

eight. The minimum wage order of July 1996 provides for the worker other than

household workers, $20.00 per hour for work done during any period not

exceeding (i) eight hours on a normal working day or (ii) forty hours in any week.

The worker should be paid time and a half for work done in excess of eight hours

on a normal working day and double time for work done during any period on a

rest day or a public holiday. For weekly paid household workers they were paid

$800.00 per week for a normal 40hour work week and $20.00 per hour for work

done in excess of 40 hours in any week. The rates set out in the Order are

minimum rates and may be exceeded by agreement.

The Minister of Labour and Social Security, Hon. Pearnel Charles, made the

announcement of the approval of a 10 percent increase for minimum wage

earners and industrial security guards on January 25, 2011. Stating that effective

February 28, 2011, the National Minimum Wage will move from $4, 070 per 40-

hour work week to $4,500, while the minimum wage for industrial security guards

will increase from $6, 050 per 40-hour week to $6,655. 

Security guards will also receive increases in laundry allowance from $27.50 per

hour to $30.25; fire arm premium from $30.25 to $33.28 per hour; and dog

handler’s premium allowance from $20.35 per hour to $22.39. The life insurance

coverage for security guards has also been increased from $1.5 million double

indemnity to $2 million.

In spite of the Minimum Wage Act there are deficiencies that erodes the

bargaining power and, therefore, limits the earning power of the average worker

and reduces the 'labour contract' to ammunition for employers, most of whom

use the stipulated minimum wage as a pay-scale guide. In the absence of a

stipulated minimum wage, the worker will have the freedom to negotiate based

on his skills and the demand for them. That's more power to the worker.

The Holiday with Pay Order of 1973 governs the payment of wages during

holiday and sick leave as well as the entitlement of employees to leave in

general. The Order regulates sick and vacation leave, gratuity payments and

leave entitlements. It should be noted that the Holidays with Pay Order stipulates

how and when leave should be granted and can be described as a national

minimum law in Jamaican Industrial Relations.

More specifically, this Act provides the worker with several benefits including:

a minimum two working weeks vacation with pay (not including public holidays

and weekends) one sick day entitlement for every 22 days the worker works

any period of illness under four days does not have to be accompanied by a

medical certificate

The Holiday with Pay Act speaks directly to the welfare of the worker as these

benefits become automatic entitlements when the worker agrees to the terms

and conditions of a contract of employment.

On July 28, 2009, the House of Representatives began debating changes to the

Holiday with Pay Act to increase fines for breaches by employers and allowing

the Resident Magistrate's Courts to hear the cases.

Minister of Labour and Social Security, Hon. Pearnel Charles, pointed out that it

is imperative that workers are given adequate time for rest and rejuvenation

during their working life, to allow them to be more productive.

He said that the worker should also be remunerated at normal wages during this

period of vacation, and be guaranteed the right to return to work thereafter. He

added that similar principles should also apply to sick leave entitlements.

Pointing to what, he said, is a glaring deficiency in the Act, Mr. Charles said that

there is no specific provision which allows an aggrieved worker to take legal

action in the RM court, against an employer for a breach of provisions which

result in the worker not receiving legal entitlements to vacation leave, sick leave

or gratuity benefits.

He said that between 2004 and 2008, an average of 2,400 workers annually

lodged complaints with the Ministry regarding breaches of the Holiday with Pay

Act. These complaints included: not being allowed to take their vacation and sick

leaves at the appropriate time; not being paid at all for leave taken; and being

underpaid for time taken.

"Fortunately, labour officers have been able to intervene in about one third of

these cases, resulting in some workers receiving their entitlements outside of

pursuing legal remedies. In the remaining cases, employers refuse to honour

their obligation, or simply ignore the attempts by the ministry to promote

resolutions of these issues.

Mr. Charles stated that, although criminal action against employers is available,

workers have no direct recourse in the courts, except to attempt to claim a

breach of employment contract, which is a daunting task for the average worker.

A new section is to be included in the Act, to allow the RM court to hear claims

arising from breaches of contract of employment covering up to a maximum of

$500,000. The Minister will also now be able to vary and amend fines, with the

approval of Parliament.

The worker will then be able to access relevant and effective justice that would

reflect the dynamism of the economy and the employment arena. It is also

proposed that fines be increased from $250 to $250,000 for breaches relating to:

holiday with pay, sick leave or sick benefits; contractual arrangements; and

records. However, the imprisonment penalty will be decreased from 6 months

with hard labour, to 3 months.

Amendments will also be made to the companion legislation, the Holiday with

Pay Order. The order will clarify the meaning of 'worker', to relate to the changing

face of the employment arena.

They will also include provisions to allow for the accumulation of vacation leave

for up to four years, unless otherwise agreed between the worker and employer,

and or their representatives. The order will also clarify the rate of pay to be used

when calculating the sums owed to a terminated worker for outstanding vacation

leave.

The maternity leave act was passed in December 1979 due to the deliberations

by the unions, employers and various women’s organizations. Jamaica was one

of the first countries to institute an Act of this nature in Industrial Relations. The

Act made it obligatory for employers to grant such leave and to make certain

payments as prescribed due to inhumane unfair treatment of workers in the pass.

The Act outlined the conditions that the employers and employees must adhere

to in the workplace.

The main features of the Maternity Leave Act are:

Qualification - To be qualified for maternity leave the worker must:

Inform her employee that she wishes to be absent from work wholly or partly due

to pregnancy or confinement and that she intends to return to work with the

employer. Have been employed for a period of 52 weeks at the date when she

goes on leave. Produce upon the request of the employer a certificate from a

registered medical practitioner stating that it is necessary for the worker to be

absent from work due to the pregnancy.

Entitlement to leave - The entitlement for one or more periods of leave shall not

exceed 12 weeks except in special circumstances unless the worker furnishes

her employer with a certificate from pregnancy or confinement, or a proof of

health condition of the child to whom she has given birth. It is necessary for the

worker to be absent from work for a period in excess of 12 weeks but not

exceeding 14 weeks. If a worker wishes to have a further extension, that is,

beyond the 12 weeks:

She shall submit a medical certificate from a medical certificate of herself or the

child if the employer requires her to do so.

The employer may require that medical examination be carried out in the

presence of, and in consultation with, a medical practioner chosen and paid by

him.

If there is a disagreement between the medical practitioners, the matter shall be

referred to the chief medical officer, and any decision made by him or a medical

practitioner nominated by him shall be final.

There is no limitation in regard to additional leave depending on the outcome of

the medical examination.

Worker's right to return to work - Every worker who has been granted maternity

leave having qualified has the right to return to work:

With the employer who granted her the leave.

In the capacity and position in which she was employed to work.

On terms on conditions regarding seniority, pension rights and other rights shall

be regarding in her absence.

Redundancy

If a worker is to return to work, but is not practical by reason of redundancy for

the employer to permit her to return, she shall be entitled to be offered suitable

alternative employment subject to a suitable vacancy, with either her employer or

his successor or an associated company. The new contract of employment shall

be such that:

The work to be done is of a kind suitable to the employer. The provisions as to

the capacity and place are not less favourable than her previous employment.

Her seniority, pension right and other benefits would be continuous.

Where the employee returns and is being made redundant, the worker must

reserve the rights and conditions that were stipulated in the original contract of

employment and is entitled to redundancy benefits (if applicable).

Maternity pay - The worker who has qualified for maternity leave shall be entitled,

subject to the conditions hereafter, to be paid for the first eight weeks of her

maternity beginning on, or following after the relevant date. The qualified worker

shall not be entitled to be paid maternity pay:

unless she informs her employer not less than two weeks before the relevant

date (i.e. 13 weeks) or, if that is not reasonably practical, as soon thereafter as is

practical , of the expected week of confinement.

Unless she produces for the inspection of her employer, if he so requests, a

certificate from a registered medical practitioner stating the expected

confinement.

If the employer had granted her maternity leave with pay in respect of three or

more pregnancies before the relevant day. This means that she would not be

entitled to payment for more than three pregnancies although she could be

entitled to leave without pay for four or more.

Deficiency of maternity leave:

Demotion – On returning to work after maternity leave some women find that

they are placed in a lower position than what they were in before they went off on

maternity leave. Retuning to a different position is one of deficiency and is not

suppose to be. The Maternity Act should be followed at all times as there are

legal implications to adhering to the laws that governs the land.

The Labour Relations and Industrial Disputes Act (LRIDA)

The Industrial Disputes Tribunal was set up in 1975 under the Labour Relations

and Industrial Disputes Act (L.R.I.D.A.) of 1975.   

The Tribunal was established to determine and settle industrial disputes and to

promote industrial harmony.

Prior to 1975, industrial disputes in Jamaica were settled through the route of

Arbitration, provided for under the Public Utility Undertaking and Public Services

Arbitration (PUUPSA) Law and the Trade Disputes Arbitration and Enquiry Law. 

The workers were discontented with the manner in which grievances were

handled by Arbitrators.  The Government of the day felt that it was necessary to

have a modern and permanent State machinery to determine and settle disputes

expeditiously.  The 1938 labour uprising also influenced this decision.

 

Problems prior to the establishment of the L.R.I.D.A. were that

The arbitrator acting under the Arbitration Act could not reinstate a worker (No

power to reinstate).

 There was difficulty in selecting an arbitrator by the parties.  This could be a long

process.

 Arbitrations only took place in the essential service under the P.U.U.P.S.A., and

in the event where the workers were represented by a union and the grievance

procedure allowed for arbitration.

The birth of the LRIDA in Jamaica states that “the LRIDA came about in an

attempt to protect workers who were primary targets of unjust laws and action.”

As such the LRIDA seeks to inter alia whereby they establish a structure

specifically geared towards resolving industrial disputes in the form of the IDT

Provide enforcement of rules and laws in the form of a Code of Conduct

Protect workers’ rights via union membership and freedom of association.

It also outlines the roles and functions of stakeholders such as the Ministry of

Labour, the Trade Union and the workers themselves.

Employ a procedure through which an attempt is made to settle disputes in

graduated stages, the first stage of which is negotiation

The Labour Relations Code (accompanying document to the Act), sets outs

guidelines which are expected to promote good labour relations in the context of:

Collective Bargaining, Settlement of disputes through negotiation, conciliation

and arbitration, Protection of workers and employers against unfair labour

practices.

The Act defines a worker as “an individual who has entered into or works or

normally works under a contract of employment.”

Under the LRIDA, there is no definition of employee; however the definition of

worker incorporates contractors who work as employees.

The implications of being labeled a contractor as against a worker are that, being

workers, some persons are not protected under all labour laws. Therefore

eliminating some persons in the workforce from having a right to grievance

procedures, leave benefits, redundancy payments-instead some organizations

offer a gratuity.

In summary, the LRIDA performs a monitoring, guidance and stabilizing function

in the Industrial Relations arena.

Employee welfare includes anything that is done for the comfort and

improvement of employees and is provided over and above the wages. Welfare

helps in keeping the morale and motivation of the employees high so as to retain

the employees for longer duration. The welfare measures need not be in

monetary terms only, but in any kind or forms. Employee welfare includes

Monitoring of working conditions, creation of industrial harmony through

infrastructure for health, industrial relations and insurance against disease,

accident and unemployment for the workers and their families Labor welfare

entails all those activities of employer which are directed towards providing the

employees with certain facilities and services in addition to wages or salaries.

Such as to provide better life and health to the workers in order to make the

workers happy and satisfied, to relieve workers from industrial fatigue and to

improve intellectual, cultural and material conditions of living of the workers.

The very logic behind providing welfare schemes is to create efficient, healthy,

loyal and satisfied labor force for the organization. The purpose of providing such

facilities is to make their work life better and also to raise their standard of living.

To provide better physical and mental health to workers and thus promote a

healthy work environment

Facilities like housing schemes, medical benefits, and education and recreation

facilities for workers’ families help in raising their standards of living. This makes

workers to pay more attention towards work and thus increases their productivity.

Employers get stable labor force by providing welfare facilities. With that workers

would take active interest in their jobs and work with a feeling of involvement and

participation.

Employee welfare measures increase the productivity of organization and

promote healthy industrial relations thereby maintaining industrial peace.

Deficiencies relative to employee welfare.

The deficiencies come in effect when employers fail to make employee welfare a

priority. In ways such as not ensuring that they receive proper Wage rates this

has been an on going problem within organization and with the global recession

taking place frustrate the workers. Other problem such as Leave policy,

Overtime, Lack of career planning, Role conflicts, Lack of regard for collective

agreement and Disparity between skill of worker and job responsibility have also

been a deficiency for workers.

Another deficiency that employers lack is the violation of their responsibility to

provide suitable working conditions and also the violation of natural rules of

justice such as unfair treatment in promotion.

Over the years employees have been battling with Grievance issues resulting

from working conditions such as: Poor safety and bad physical conditions.

Unavailability of tools and proper machinery. Negative approach to discipline and

Unrealistic targets. There is also Grievance resulting from inter-personal factors

such as. Poor relationships with team members, also staff have major problem

with Autocratic leadership style of superiors. Employee who face such type

leadership often time feel neglected because there input is not needed.

Grievance is any type of dissatisfaction or discontentment’s arising out of factors

related to an employee’s job which he thinks is unfair. A grievance arises when

an employee feels that something has happened or is happening to him which he

thinks is unfair, unjust or inequitable. In an organization, a grievance may arise

due to several factors.

Grievances are symptoms of conflicts in industry. Therefore, management should

be concerned with grievances, because it is an important indicator of potential

problems within the workforce. Without a grievance procedure, management may

be unable to respond to employee concerns since managers are unaware of

them. Therefore, a formal grievance procedure is a valuable communication tool

for the organization. 

The Employment (Termination and Redundancy Payments) Act is legislation

passed in Jamaica in 1974. The Act protects workers by ensuring that employers

give employees proper notice before layoffs. The Act is administered and

maintained by the Ministry of Labour and Social Security.

There is a minimum Period of Notice which alludes to the first section of the Act

which defines its key terms. Part II designates how much notice an employer

must give an employee before a layoff. The amount of time is determined by how

long the employee has worked for the company. All employees must receive at

least two weeks' notice.

According to the redundancy Payments an employee is fired for reasons of

"redundancy," the job has become unnecessary. This could be because the

company is moving, downsizing, changing management or for other reasons. In

Jamaica, the Employment (Termination and Redundancy) Act requires

employers to pay a fee to employees who have worked for them for more than

two years if they are terminated for reasons of redundancy.

Other reasons which are seen as miscellaneous in this section of the Act

requires that employers keep accurate records about their employees, including

the employees' names and tax information as well as their dates of employment.

Additionally, this section outlines the power of the Resident Magistrates' Courts in

employment law cases and gives the Minister the power to make regulations,

when necessary, to better enforce the Act.

The Right to redundancy payment is where on or after the appointed day an

employee who has been continuously employed for the period of one hundred

and four weeks ending on the relevant date is dismissed by his employer by

reason of redundancy the employer and any other person to whom the

ownership of his business is transferred during the period of twelve months after

such dismissal shall, subject to the provisions of this Part, be liable to pay to the

employee a sum (in this Act referred to as a “redundancy payment”) calculated in

such manner as shall be prescribed.

For the purposes of this Part an employee who is dismissed shall be taken to be

dismissed by reason of redundancy if the dismissal is attributable wholly or partly

to he fact that his employer has ceased, or intends to cease, to carry on the

business for the purposes of which the employee was employed by him or has

ceased, or intends to cease, to carry on that business in the place where the

employee was so employed; or the fact that the requirements of that business for

employees to carry out work of a particular kind, or for employees to carry out

work of a particular kind in the place where he was so employed, have ceased or

diminished or are expected to cease or diminish; or the fact that he has suffered

personal injury which was caused by an accident arising out of and in the course

of his employment, or has developed any disease, prescribed under this Act,

being a disease due to the nature of his employment.

An employee who on or after the appointed day has been employed by the same

employer in seasonal employment for two or more consecutive years shall, if his

employment during each season is continuous, be taken to be dismissed by that

employer by reason of redundancy. Where he is dismissed by his employer and

the dismissal is attributable wholly or partly to any of the facts specified in

subsection or

where his employer informs him (in whatever terms) that he will not be provided

with employment during any season; or where he attends the place of

employment and offers himself for employment at the beginning of any season or

in accordance with any instructions given, or any procedure established, by the

demand the employer fails to provide him with employment, and the employer

shall, subject to the provisions of this Part, be liable to pay to him a redundancy

payment notwithstanding that he has not been continuously employed throughout

the period specified in subsection.

The manner of determining whether an employee has been continuously

employed for the period specified in subsection shall be such manner as shall be

prescribed.

For the purposes of this section an employee shall betaken to be dismissed by

his employer if the contract under which he is employed by the employer is

terminated by the employer, either by notice or without notice; or if under that

contract he is employed for a fixed term and that term expires without being

renewed under the same contract; or if he is compelled, by reason of the

employer’s conduct, to terminate that contract without notice.

Deficiencies relative to employee welfare are were there is a general

exclusion from the right of redundancy payment an employee shall not be entitled

to a redundancy payment if for any reason other than that specified if he

terminates the contract under which he is employed; or claims for redundancy

payments notwithstanding anything in the preceding provisions of this Part an

employee shall not be entitled to a redundancy payment unless, before the end

of the period of six months beginning with the relevant date the payment has

been agreed; or if the employee has not been made for the claim for the payment

by notice in writing given to the employer; or proceedings have been commenced

under this Act for the determination of the right of the employee to the payment

or for the determination of the amount of the payment. Where the employee dies

before the end of the period of six months mentioned in subsection (1), and none

of the events mentioned in paragraphs (a), (b) and (c) of that subsection occurs

before his death, a claim by his personal representative for the payment shall, if

notice is not made by in writing given to the employer before the end of the

period of one year beginning with the relevant date, be of the same effect as if it

is not made by the employee in accordance with paragraph (b) of subsection (1).

These deficiencies will be to the detriment to the welfare of the employee if they

are not providing for.

  

REFERENCES

Kirkaldy G.: Industrial Relations Law and Practice in Jamaica

http://www.moj.gov.jm/laws/statutes

http://www.mlss.gov.jm