Introduction Labour law in the Caribbean and Jamaica in particularly has traditionally been shaped by social, economic and political influences Goolsaran (2005). Over the past 100 years, its major challenge has been its response to social and political demands for workers’ rights, justice and democracy at the workplace. This research paper seeks to accomplish the goals of giving a detailed examination of the Jamaican labour laws using both contemporary and historical references while seeking to answer the questions- whose interest do the laws serve? Is there class bias? Definition
The term labour law consists of principles, rules and norms that regulate employment relations. Deakin and Morris (2001) argue that, a broader perspective would see labour law as the normative framework for the existence and operation of all the institutions of the labour market: the business enterprise, trade unions, and employers’ associations and, in its capacity as regulator and as employer, the state. Labour law is primarily concerned with the rights of workers, trade unions and employers, standards applicable to employment relations, and the regulation of industrial relations and the labour market. Background of the Labour relation systems in Jamaica
Labour has always been one of the central problems of colonialism theorizes Wilson (1996). He contends that the labour problem began with the need to obtain workers to cultivate the plantations, provide domestic services and do every other kind of physical task that had to be carried out to develop the economy and administration of colonies. The period that starts the current understanding of industrial relations began with colonial domination of the
Caribbean Island and a demand for labour which produced a supply of slaves that supplied the needs of the West Indies and Jamaica until public opinion in Britain revolted against the system of slavery and the trade was brought to an end. When it came to industrial relations and treatment of slaves, the ownership concept was complete . While the worst excesses of slave owners' treatment of slaves was eventually met by regulations drawn up by the colonial office on the care, feeding and treatment of slaves, as with most legislation passed by states in the Caribbean and Jamaica in particular, implementation of these regulations was not carefully supervised.
The treatment of workers was oppressive, exploitative, expected unquestioning obedience, featured punishment as a means of discipline, (indeed, as the only means of discipline), and in the case of women, included the assumption that sexual use of their bodies was the automatic right of whichever male was in authority. This might be the overseer or one of his delegates as well as the owner. The homosexual abuse of male slaves has not been widely recorded, but this is not an indication it never happened.
The concept of human rights and labour laws back then in Jamaica known since the codification of Roman law did not extend to slaves, women or children Goolsaran (2005). The idea that they might have harboured normal feelings of anger as a result does not appear to have been understood. The effects, though, of how slaves felt over their treatment were evident in industrial relations terms where low productivity, avoidance of work wherever possible, manipulation and dissembling became characteristic non-violent means of worker protest while authoritarianism and /or paternalism characterized managerial styles.
Questioning an order was seen as insubordination, an attitude that still lingers, as do so many other features of the master/ servant relationship established at that time. After the abolition of slavery, the resentment which former slaves felt at their exploitation and the low wages plantation managers were prepared to pay, (which were below what a family could live on), turned the former plantation workers against work in agriculture.
This refusal to continue to work on the plantations became, in an industrial relations context, the first "withdrawal of labour" or strike action. Eaton (2002) purports that the industrial relations response by the state, which was coeval with the mercantile class, co-operated in defeating the workers' protest action by establishing the indentured labour system, importing workers from China and India to take the place of the freed slaves.
Eaton (2002) stated that the signs were there as there was no doubt that wages were poor, employment irregular and there were crop failures. Thus the birth of the Jamaica labour movement began. Kirkaldy (1998) purports that this dates back to the year 1938 following a series of strikes in Jamaica. Nonetheless Kirkaldy contends that, “ there were, however attempts at a combination for many years prior to that date, but prior to 1919 when the Trade Union Act was passed, unions operated without the protection of the law.
Trade unions in Jamaica as Eaton (2002) describes were established to include the desire of work-people to protect themselves from the vicissitudes of employment by collective action and to render aid in times of adversity such as sickness, injury and death; a need to establish a system of rules that would reduce the arbitrary power of the employer to an orderly and predictable pattern of behavior; a desire to improve wages and working conditions by the exercise of bargaining power achieved by organizations directly through negotiation with the employer and indirectly through political pressure.
The Labour Laws of Jamaica The Jamaican Labour laws are inclusive of the collective labour laws (legislation) and individual labour laws also known as the common law.
Important Labour laws include:
Trade Union Act, 1919
Labour Relations & Industrial Disputes Act (LRIDA), 1975 Labour Relations Code
Employment (Termination and Redundancy Payment) Act, 1974
Holiday with Pay Act, 1974
Minimum Wage Act, 1938
Maternity Leave Act, 1979
Labour legislation in Jamaica can be placed into five groups or areas of operations which the labour laws were enacted for. This includes:
1. Organizational laws 2. Rights law 3. Protective law 4. National Minimum Laws 5. Specific occupational laws
Organizational laws.Organisational laws are concerned with how one organizes a group of people or form organizations. The Trade Union Act, 1919 as amended is the only organizational law in Jamaica affecting the Industrial Relations and Human Resource Management field it:
i. defines a trade union, ii. provides for its (a) registration, (b) administration, and (c) procedures in conducting disputes iii. prohibits violence and stalking. By the act a trade union is defined as: “Any combination, whether temporary or permanent, the principal purposes of which are, under its constitution, the regulation of relations between workers and employers, or between workers and workers, or between employers and employers…
Jamaica’s Trade Union Act of 1919, similar legislation in the United Kingdom, was the first to give legal status to trade union in this region, and followed closely in 1921 by the enactment of the Guyana Trade Union Act. The law essentially provided for the registration of trade unions, outlining certain requirements about their rules, trusteeship, accounts, amalgamation, dissolution and the filing of annual financial statements to a Registrar.
The law however, unlike its counterpart British law at the time, did not give the right to “peaceful picketing or the common law disability of action in tort whereby trade unions could be sued for damages in consequence of strike action was not removed by the Trade Union Law in Jamaica.” Conventional wisdom even at that time is that this omission was not accidental, and the expressions by the then Governor of Jamaica on that occasion were the Jamaican workers were not ready for trade unionism, acted as confirmation. (Henry 1982).
Provisions of the Act The Act provides for the registration of trade unions and identifies enactments which shall not apply to trade unions. It provides for ownership of land by registered trade unions. It provides for the appointment of trustees and their empowerment to bring and defend actions and prosecutions. It provides for the setting up of a registered office to which all communication and notices may be addressed. It provides for legal proceedings. It outlines the procedure for the transfer of new trustees. It provides for the withdrawal or cancellation of trade unions by the Registrar of Trade Unions, as well as provisions for appeal. Other provisions include changes of name and amalgamation, dissolution of unions’ procedure in conducting disputes among others.
Some commenters believe the Act should be amended to provide for a secret ballot on the taking or continuations of Industrial action as the interest of some workers are not served. As posited by Kirkaldy (1998) there are occasions when trade union members do not wish to take industrial action but have to go along with the union or others wish to do so. T
he repercussions for not consenting are severe and as Kirkaldy puts it, “could result in threats of violence, refusal to work with the dissenting worker…sending them to Coventry” (pg. 144). If this is to be constitutionally challenged to enhance production and the interest of the worker then measures should be made as recommended by Kirkaldy to “include in the Trade Union Act or in the LRIDA a provision of secret ballot before industrial action is taken. The balloting should show at least a majority in favour of industrial action before such action is lawful. There should likewise be a secret ballot to determine whether a lawful industrial action should continue. Consequently, both the Ministry of Labour and the employer should be informed of the intention to take a ballot and the voting results made known to those entitled to vote and be open to scrutiny.
These are intended to support the establishment of collective bargaining. Laws that serve to advance the practice collective bargaining are: Labour Relations and Industrial Disputes Act (LRIDA)
The Labour Relations and Industrial Disputes Act (LRIDA), 1975
Zin Henry (1982), made the point that:
“For several Caribbean countries, Jamaica no exception, the post-independence period signaled the era of social justice and welfare –orientated type of legislation. He argued that this was a major radical shift from essentially voluntary to a more legislative system of industrial relations, “including proscription of the right to strike or lock-out by substituting compulsory arbitration.” This was the period for the national insurance and social security legislation being passed in several countries in the early 1970s This was also a period of great focus on economic development in the region and experimentations in industrialization and diversification of the Caribbean economies. Legislation which became typical for this period were largely “somewhat compensative laws which sought to regulate a number of different aspects of industrial relations such as presentation for collective bargaining purposes, bargaining practices, the settlement of industrial disputes by their party determination, legal enforcement of agreements and awards , unfair labour practices .” The 1970s then is considered the period of …for labour legislation in Jamaica. (Henry 1982).
The enactment of the LRIDA repealed two statutes – the Public Utility Undertaking and Public Services Arbitration (PUUPSA) Act and the Trade Disputes (Arbitration and Enquiry) Act. The Act introduced compulsory recognition of trade unions by employers and the establishment of a permanent Industrial Dispute Tribunal for the settling of industrial disputes. Among its main provisions are the following: • gives right to every worker to join a trade union of his/her choice and to take part in trade union activities at the appropriate time.
• provides for and recognizes the Labour Code as a valuable instrument in the promotion of good Labour and Industrial Relations and the development of the Collective Bargaining process. • makes provision for the handling of disputes which threaten the national interest. • provides for compulsory reinstatement of unjustifiably dismissed workers. • provides for compulsory poll-taking and recognition of trade unions, and protects workers against discrimination in respect of trade union membership.
• outlines and defines terms such as "Industrial Disputes", "worker", "appropriate time" and "industrial action". • addresses the right of the worker in respect of trade union membership. • establishes a permanent full-time Arbitration Tribunal, known as the Industrial Dispute Tribunal. (IDT) Except for the Constitution of Jamaica, the LRIDA is the main law affecting the rights of employers and employees. The most important piece of legislation affecting Industrial relations and Human Resource Development in Jamaica . It was specifically designed to provide machinery for the stabilization of industrial relations. The Act is divided into two parts:
i. Part one deals with the right of an employee to join a trade union and to have the trade union bargain on his/her behalf.
ii. Part two deals with the establishment and function of a tribunal to hear and settle disputes between employers and employees.
Section 5 of the Act deals with representational rights. Some order implemented in 1950 for the taking of polls in such disputes. Section 6 deals with the procedure for the speedy settlement of disputes through the framework of the collective agreement.
The LRIDA does not explicitly prohibit strike action and lockouts, but contains a mandatory provision that all collective agreements should contain a grievance procedure – “express procedure for the settlement, without stoppage of work of industrial dispute.” Where this is not stated in a collective agreement, the Labour Code (1976) provides an implied procedure. The Industrial Dispute Tribunal (IDT)
The main instrument of the LRIDA is the Industrial Dispute Tribunal. This is a permanent Arbitration Board consisting of a Chairman, an employer representative and a worker representative. Members of the IDT are appointed by the Minister of Labour, who is also responsible for appointing the deputy chairman and other tribunal members for other divisions of the tribunal. Only the Minister of Labour can refer labour disputes to the IDT. It is assumed that the Minister has tried and failed in attempts to resolve the dispute. In the case of non-essential groups, both parties must request in writing that the matter be put to the IDT. Powers of the IDT
• Awards or decisions made by the IDT are final, conclusive, binding and cannot be impeached except on a point of law. • An order to cease industrial action for a time specified or an order not to begin industrial action can be made by the IDT. • Awards can be made retroactively, but not beyond the date on which the dispute first arose. • Where a worker is found to be unjustifiably dismissed, a reinstatement or compensation can be made on the worker's request. • It has the power to summon any person or document, book, record or paper to appear before it, to give evidence. • It is possible to conduct private hearings.
The IDT, however, cannot make an award which is inconsistent with any enactment involving wages or hours of work or any terms and conditions of employment. Also the Tribunal cannot make an award inconsistent with the national interest. (See appendices for current debate on amendment Protective Laws
The primary purpose of protective laws is to protect the workers against unfair treatment. This includes:
• Employment (Termination and Redundancy) Payments Act
• Maternity Leave Act
• Minimum Wage Act
• Factory Act (Occupational Safety and Health Act)
• Equal Pay (for Men and Women) Act
The Employment (Termination and Redundancy Payments) Act, 1974
The Act gazetted in 1974, was considered by many to be a critical piece of social legislation, intended to have the effect of a deterrent to indiscriminate dismissal of workers. The Act was designed to address two main matters – the period of notice required for termination of employment and the payment of redundancy pay. Prior to the passing of the Act, this was dealt with by agreement of the parties, (collective agreements) in relation to redundancy pay and by the Masters and Servant Law in relation to notice.
The Act’s coverage extends to all employees in the private sector, including household helpers and seasonal workers. Redundancy describes the situation which workers on contract of employment lose their job as a result of mechanization, closing down of the business, illness due to accident on the job or being laid off at designated periods. The law identifies minimum periods of notice which are to be given by an employer and employee when wishing to terminate a contract of employment. It provides for payments in lieu of notice. It outlines the elements affecting termination of service by the employer and employee.
It addresses eligibility for redundancy payment. It provides for redundancy payment to seasonal contract of employment. It addresses the calculation of redundancy payment. In a major provision the law identifies the employer’s right to terminate an employee’s contract of employment without notice for misconduct or “cause” as it is normally referred to. He/she however may not exercise this right within four weeks of the employee becoming aware of such conduct which justifies termination, failing which the employer has to give required notice or pay in lieu.
The law makes provision for seasonal workers who have worked continuously for two or more consecutive years, to qualify for redundancy payments. The worker is required however to attend the place of business and offer himself for employment at the beginning of any season or in accordance with any established workplace recruitment practice, and only then if the employer fails to provide him/her with employment, would the worker be entitled to this payment.
Under the law an employer who wishes to terminate the contract of employment of an employee who has been continuously employed for four weeks or more should give the following notice: a. two weeks’ notice if the period of continuous employment is less than five years. b. four weeks’ notice if the period of the continuous employment is five to ten years; c. six weeks’ notice if the period of continuous employment is ten to fifteen years d. eight weeks’ notice if the period of continuous employment is fifteen to twenty years; and e. twelve weeks’ notice if the period of continuous employment is twenty years or more.
The period of notice required to be given by employee regardless of the length of service is two weeks. Both the employer and the employee can waive the right to notice , so that the employer may decide not to press the worker for the required period of notice; nor does it prevent either of the party from giving or accepting notice of a longer period. Either party is also not prevented from accepting or giving payment in lieu of notice. Employees’ eligibility to redundancy payment is denied for the following reasons: a. If the worker resigns; however this denial is varied if the worker is able to prove that he/she has been forced to do so by reason of the conduct of the employer. b. If his service are terminated for cause,
c. If he is retired under any retirement agreement with the employer (the National Insurance Scheme is excluded.) d. If the employer has made him an offer to renew his contract, or to re-engage him under a new contract, so that the offer in respect of the conditions and the place of employment do not differ from the previous employment, and the employee has unreasonably refused that offer. The Employment (Equal Pay for Men and Women) Act, 1975:
This Act which came into effect in 1975 aimed at eliminating discrimination between men and women in respect of pay for equal work and provides for a procedure for the hearing of complaints, penalties for breaches of the Act and empowers the Minister to appoint officers for the purposes of the provisions of the Act. The Act defines work as that performed by both sexes alike to which: a.
The duties, responsibilities or services to be performed are similar in kind, quality and amount. b. The conditions under which the work is to be performed are similar; c. Similar qualification, degrees of skills, effort and responsibilities are required; and d. the differences (if any) between duties of male and female employees are not of practical importance in relation to terms and conditions of employment or do not frequently occur.
The Act defines terms such as "equal work" and “equal pay" .It provides for the payment of equal pay for equal work and for no discrimination between male and female workers in the same establishment. It provides for legal proceedings for non-compliance with the Act. It provides for the appointment of officers and the power of entry and inspection. It establishes a right to equal pay where a woman is employed in a similar work with a man in the same employment. It outlaws separate rates in pay structure based on the sex of the employees. It states that no employer shall dismiss or discriminate against a worker because she has complained of remuneration that contravenes the Act.
Maternity Leave Act, 1979
In order to protect all female workers from possible unfair treatment, the Government had to set certain minimum standards for employers to follow. These standards however, does not prevent employers from offering better deals to their female workers, and in fact, many organizations make offers which are above the national minimum standards in order to attract suitable workers.
This act applies to ALL female workers, including those in Government (including Police and JDF). The act makes it obligatory for employers to grant minimum maternity leave and make certain (minimum) payments. Working women who are expecting babies now have three basic rights under the law: • A right not to be dismissed because of pregnancy, or related illness. • A right to return to work in the position she was in before the pregnancy, under the same terms and conditions.
• Right to 12 weeks maternity leave, with 8 weeks at full pay. The Act defines “confinement” as the ‘birth of a living child or the birth of a child whether living or dead after twenty-eight weeks of pregnancy’ (Section 2) (This will include premature birth).
A female worker is entitled to three (3) paid maternity leave, while in the employ of the same employer. The Maternity Leave Act applies to all qualified female workers, irrespective of whether or not she is married; Absence from work through the granting of maternity leave shall not constitute a break in the continuity of the worker’s employment; Indeed, prior to the passing of the Maternity Leave Act in 1979, the continuity of the female’s employment, for the most part, was broken upon resumption to work from maternity leave, notwithstanding the fact, that the leave in itself, was left up to the discretion of the employer.
To qualify for maternity leave it is essential and indeed mandatory that the worker:-
• Be at least 18 years old;
• Be continuously employed, for a minimum of 52 weeks by the same employer as at the date the maternity leave begins, (the worker must have completed 52 weeks prior to going on maternity leave);
• Inform her employer in writing, of her intended absence from work owing to her pregnancy and that she intends to return to work; ( this should be done by the 29th week of pregnancy);
• Present a medical certificate to her employer stating that it is necessary for her to be absent owing to reasons of pregnancy, if she is requested by her employer to present same;
• Be at least 28 weeks pregnant and;
• Should be working a minimum of 18 hours per week, (not necessary to work a 40 hour-work-week).
• A qualified worker is entitled to a minimum of twelve (12) weeks maternity leave:-the first eight (8) weeks of which should be paid for; while the last four (4) weeks will be without pay;
If there is medical reason that necessitates an extension of the initial 12 weeks of maternity leave (either arising from the illness of mother or child), then the Act provides an additional fourteen (14) weeks leave on submission of a medical certificate. This extension, if necessary, will not be paid for, unless the employer wishes to do so. Where a worker is unable to return to work as at (2), employment treated as terminated by reason of redundancy.
The main weaknesses of the Maternity Leave Act are follows: • A woman will have to be working at one place for one year before she is eligible for maternity leave under the law. It means that a number of women, whose family responsibilities cause them to frequently change jobs, will never qualify. • A woman will only obtain maternity leave with pay for three pregnancies with same employer. This suggests that a woman who wishes to have more than three children would have to change her job. • The law does not make provision for miscarriages before a 28 week period of confinement. So a woman who miscarries will have to use her regular sick leave. • The legal provisions do not apply to women who work less than 18 hours each week. Factories Act, 1943 (as amended):
The Factories Act and the Factories Regulations, 1963 are the primary pieces of health & safety legislation currently governing the Jamaican workplace. The Industrial Safety Law comprise of the Factories Act, 1943. Under section 12 of this act includes provision. Therefore, the Building Operations and Works of Engineering Construction Regulations of 1968 as well as the Docks (Safety, Health and Welfare)
Regulations of 1968 provide the framework for these laws. This act provides for the registration and supervision of factories to ensure the occupational health and safety and welfare of the Jamaican worker. The Act originally covered premises on which steam, electric, water and other mechanical power is used in the industrial and manufacturing processes and being operated for gains or commercial activities. The act was later amended to cover the building and construction industries and operations relating to docks and shipping.
The law requires that new factories plans be submitted to the Chief Factory Inspector and that factory be registered with the Safety Division of the Ministry of Labour
The Act… (1) Requires employers operating workplaces (“factories”) to observe certain standards of safety, health and welfare of their workers. (2) Covers manufacturing; process and service industries; the generation of electricity; water treatment plants; dry docks; building operations and engineering construction; and the loading, unloading and fuelling of ships. (3) Covers only a minority of the Jamaican workforce.
The Regulations provide for proper sanitation, health and safety measures, and for periodic inspection of factory and machinery, among other things… However, most factory operators ignore the minimum standards set forth in the Act.
The Act is quite deficient in several areas; it… (1) Does not apply to ‘all branches of economic activity’. (2) Does not require an employer to state whether a ‘factory’ is a “major hazard” installation. (3) Does not require workers to report the absence or defect of any equipment, protective devices, clothing, etc., of which he is aware. (4) Gives workers no right to refuse to work in perceived dangerous situations. National Insurance Act, 1966
This law was enacted in 1966, and allows for a contributory system of social security, providing financial support to workers and their families against loss of income resulting from job related sicknesses , injury and death of the bread winner. All citizens who are gainfully employed are required to pay contributions –either as self-employed or employed. Voluntary contributions are to be made by persons in full-time employment before reaching the stipulated retirement age.
The act makes no exception in terms of income, nationality or participation into any other national /local scheme. The act however, identifies domestic helpers as a special category of workers, distinguishing them from groups such as office attendants and cleaners. • The Act makes provisions for persons to be insured under the Act. • The insured persons are divided into the following classes: a. employed persons
b. self-employed persons c. other insured persons as specified It provides general regulations as to payment and collection of contribution. It provides description and rates of benefits and contribution conditions. It provides for a number of benefits example old age, invalidity, widows and widowers, orphans, injury and disease in employment and maternity.
The law has a funeral grant provision. The law makes provision for and outlines procedures for preparation and adjudication of claims. It provides for the appointment of inspectors and invested them with specific powers. It provides for the establishment of a fund, called the National Insurance Fund, under the control of a public officer appointed by the Minister. It provides for legal proceedings to be taken against an employer for benefits lost by employer's default. Those not covered under the Employment Injury Benefits of the Scheme, are domestic helpers, members of the Defense Force, and self-employed persons. The Women (Employment of) Act, 1942
This act was designed to restrict and empower the employment of women in any specific class of industrial undertaking. The act speaks specifically of night work except in hotels and public theatres. Where night work is permitted, a maximum of ten hours per twenty-four hours is prescribed. Protection under the law is provided under the Factories Act, through the powers of the Chief factory Inspector, to enter and inspect at all reasonable times, premises (except households where owner’s prior permission is required) where women are employed. Kirkaldy (1998) posits that the law is viewed as archaic and as such is ignored in everyday practice as it is viewed as discriminatory. Minimum Wage Act, 1938
The Act provides for the establishment of an Advisory Commission to advise the Minister on all matters relating to National Minimum Wage and other minimum wages which may be fixed under the Act. It provides for penalties for not paying wages in accordance with the minimum rate fixed by the Act. It contains provisions in respect to legal proceedings for non-compliance with the Act. It provides for the appointment of officers with the power of entry and inspection. It provides for the establishment of national minimum and other minimum wages to be fixed under the law. The act allows for the fixing of minimum wages to be paid to certain categories of workers .
The 1974 amendment allows for the appointment of a Minimum Wage Advisory Commission for the purpose of fixing a National Minimum Wage .The Order may regulate the hours of work or other terms and conditions and may fix different minimum wages in different categories of establishment. The Act provides for the Minister by Order to fix…
(i) Minimum rates of pay for… any occupation in the island e.g., The Minimum Wage for Industrial Security Guards (ii) A National Minimum Wage for occupations generally The Holidays with Pay Act, 1947 (as amended):
This act sets out the conditions under which workers are entitled to holidays and sick leave with pay or such gratuities and benefits as may be determined. The Holidays with Pay Order regulates the granting of both vacation leave (holiday) with Pay and Sick Leave with Pay. The entitlement stipulated by this Order is the minimum to be granted. For each year of employment, (each 12 month period from the first day of employment) the worker qualifies, and becomes eligible for paid vacation leave. The Holidays with Pay Order, thus stipulates the minimum vacation leave to be granted and the method of qualifying;
The main principle is that a worker earns vacation leave by virtue of working for a certain number of days in a year; In principle and by law, vacation leave is paid before the holiday begins, or at any other time agreed upon by the parties concerned; Vacation leave cannot be granted during a period of notice given by the employer to terminate employment.
The Act empowers the Minister by Order (The Holidays with Pay Order) to prescribe minimum standards (entitlements) for holidays (vacation) and sick leave.The Act defines terms such as "casual workers"; "workers earnings" etc. It has the power to provide for holiday with pay, sick leave, gratuities and sick benefits in any occupation. It makes provision relating to workers other than casual workers, as well as casual workers. It makes provision for the appointment of an Advisory Board by the Minister of Labour, to make recommendations in relation to the granting of holiday with pay, sick leave with pay gratuities and sick benefits to workers in such occupations as may be specified by each Advisory Board.
Is there a class bias?
|The term class bias refers to prejudice against or in favor of people belonging to a particular social class or group. (White and Van | |der Velden, 1995). They further contend that class is evident in how laws are framed, institutions are organized and societal resources | |distributed. Discrimination also speaks of class bias. Discrimination refers to the treatment or consideration of, or making a | |distinction in favour of or against, a person or thing based on the group, class, or category to which that person or thing belongs | |rather than on individual merit.
Discrimination can be the effect of some law or established practice that confers privileges on a | |certain class or denies privileges to a certain class because of race, age, gender, nationality, religion or disability act. | | | |Historically there has been class bias towards women.
The division between manager and worker during slavery was marked, with all | |accountability centered on the former and little or no authority accorded to the latter, giving rise to a work pattern where workers are| |given responsibilities with no authority to match, a situation which became a typical feature of industrial life, discouraging any | |development of problem solving or creative initiative at work, and eliminating any channel for handling grievances. The sharp status | |distinctions also had the not unexpected feature of creating a pecking order where each stratum oppressed the one below it. Women and | |children were always on the lowest rung of whatever stratum one was in.
They were refused even those rights accorded to the lowest | |ranking men and culturally according them little, if any legal or social value other than to fulfill the needs of those higher up on the| |pecking order. | |With the genesis of labour laws and more specifically the laws inclusive of :Trade Union Act, 1919 , Minimum Wage Act, 1938 , Maternity| |Leave Act, 1979 , Women Employment Act, 1942 these legislation sought to redress women unequal treatment in employment. As history | |records women were not the key subjects of labour laws, quite noticeable in the dates when these laws were enacted. Prior to these laws | |the problem that existed (and to a smaller extent today) was women inequality and thus the law was the sought after solution.
These | |laws were passed in response to known existing biases that prevented a specific class (women) from achieving equal employment | |opportunities. Conaghan (2000) emphasizes that there were profound disagreement about whether the best strategy for improving women’s | |employment situation was to emphasize their sameness with or difference to man. | | | |With reference to the Women employment Act, 1942 the feminist might argue it was on the basis of difference as the act was designed to | |restrict and empower the employment of women in any specific class of industrial undertaking.
The act speaks specifically of night work| |except in hotels and public theatres. Feminist may argue (those who emphasize sameness and equality) that protective laws/legislation | |such as this stressed women’s role as mothers at the expense of their need to earn adequate income for themselves and family and as such| |is discriminatory and not relevant in today’s society where women in an effort to provide for their families have to undertake various “| |night jobs”. | |Historically in the wider society in terms of the highly modernized societies such as Britain and the United States of America classes | |subject to invidious discrimination have been defined along racial, gender, religious, age, disabilities and sexual orientation lines. | |
Discrimination along these premise are therefore unlawful. However, Jamaica a nation with a Vision 2030 plan has failed miserably in the| |eyes of the world and in respect to human rights as is evidenced that our labour laws are class biased in respect to: | |Disabilities | |Sexual Orientation | |Religion | |Jamaica’s buggery laws as they relate to homosexuality are outdated and out of sync with the trend that has been developing in other | |countries according to local legal expert Clayton Morgan. | |Morgan argues that the law should be amended where two consenting adults should be able to enjoy their privacy without the fear of being| |prosecuted.
There is no law in Jamaica that specifically addresses homosexuality. The Offences Against the Person Act prohibits "acts of| |gross indecency" (generally meaning that a person can be charged for exposing oneself or for engaging in sexual intercourse in public). | |
Then there is the offence called buggery, which falls under Section 76 of that Act and is defined as anal intercourse between a man and | |a woman, or between two men. But where the legal scholars have a problem with the law is that no use of force or denial of consent is | |required for the commission of the offence of buggery. Morgan also point out that most prosecutions involve consenting adult men | |suspected of indulging in anal sex. ""The buggery and gross indecency laws basically sanction discrimination against gay men."
This is | |as far as the law goes regarding sexual orientation and as is evident does not speak to sexual orientation in the work place. These | |archaic laws need to be changed where all citizens can be guaranteed full protection under the constitution. | | | |On the other hand, according to the Ministry of Labour and Social Security Jamaica is without a national disability act despite being | |the first country in the world to ratify the United Nations Convention on the Rights of Persons with Disabilities.
The act, which has | |been in the making for several years, will provide legislative support for the rights of persons with disabilities, as indicated in the | |National Policy for Persons with Disabilities, which was implemented 2000. Without such an act there is no services provided in the | |labour structure of society and placement in employment for persons with disabilities. Rather what is evident is class bias. |
Conclusion As in earlier times, the State’s primary role through its laws is to balance conflicting interests in the industrial relations/ employment sphere, but in contemporary times, many more variables in what has become a complicated, sophisticated labour environment, have been thrown into the equation. Today, the face of industrial relations and employment has changed in Jamaica and the State is a key player in this arena. Yet, the State, even in the face of the buzz word “tripartism” remains ultimately, the all-powerful arbiter, attempting to bring fairness to the industrial relations process.
As was the case during slavery, there was no objective channel of grievance handling, and corporal punishment was the response to rebellion and protest. The very notion of unionism back then, the coming together of individually weak workers to compel a loosening of the ultimate and all pervasive power of the employer, was viewed as anathema by the State/ government and the defenders of the status quo. Jamaica needs to act now on its international obligations to prevent discrimination/ class bias on the basis of sexual orientation /gender identity and disabilities.
As we have seen, some of the most fundamental worker’s rights are not protected under these Constitutions or protected inadequately. It is ironic that a convicted killer on death row can look forward to more protection from the Constitution than the most hardworking employee.
These are not questions to be answered unilaterally or by employers, workers or perhaps even the courts. Rather, they are questions for which the government must assume prime responsibility. Enacting legislation is only a small part of the state role, enforcing plays a major role and so it is the Government which must help shape the constitutional direction of the nation and harness all relevant voices in doing so.