VETERAN trade unionist Senator Navel Clarke says that millions of dollars are owed to thousands of minimum wage workers, whose employers have been ignoring the provision of the Holiday with Pay Act for years.
"I have informed them that the companies some of them work for owe them millions of dollars for vacation and sick leave, and they ought to form themselves into an association and get organised so that they can collectively put pressure on management to pay them," Clarke told the Senate last Friday.
Subsequent investigations by the Jamaica Observer revealed that the millions owed to the workers can be collected through the Ministry of Labour and Social Security (MLSS), the Industrial Disputes Tribunal (IDT) or the courts, for example. However, according to the ministry, the private security guards on whom Clarke's statement focused, would not benefit unless they are recognised as workers by law.
According to Errol Miller, chief technical director in the ministry, the Holiday with Pay Act provides that any worker who works at least 220 days in any one year should be paid two weeks vacation leave and, if necessary, allowed two weeks sick leave.
"These might be persons employed as casuals and only work when they are needed, but if they work 220 days in any one year they are due two weeks vacation leave, and they would be entitled to sick leave on the same basis," Miller told the Observer on Tuesday.
However, he noted that in the case of security guards, most companies regard them as contractors who are not qualified for the same treatment as workers under the Act.
He admitted that an amendment to the definition of the term "worker" in the Labour Relations and Industrial Disputes Act in 2002 was originally intended to confirm the security guards as "workers". But, according to him, "for one reason or the other that has not been the case with all the private security companies".
Chairman of the National Minimum Wage Advisory Commission, Silvera Castro, said that the security guards would not be able to access Holiday with Pay benefits because, on assuming their jobs, they sign a contract with their employers waiving the benefits.
Castro also insisted that any attempt to make those employers pay up sick and vacation leave entitlements on the basis of the provisions of the Act would shutdown the industry.
"Any change in the present situation could wreck the industry," he said, pointing out that the costs would have to be passed on to clients, including the Government, who are not in a position to pay more for their services at this time.
But, Miller admitted that there would be no problem for other minimum wage workers, including persons employed as shop/store assistants, household help and gardeners, to claim these benefits. However, he explained that most requests received by the Ministry from these workers followed separation from their jobs, which suggests that fear of losing the job on their part may be influencing their reluctance to report non-payments while employed.
"They usually complain when they are dismissed. We look at their entitlements and if it can't be settled at the Ministry it can be referred to the Industrial Disputes Tribunal," he explained.
Miller said that the limited resources do not allow the MLSS to do the level of inspections necessary to protect the workers from abuse.
The discussions in the Senate were triggered by a motion from by Government member, Lambert Brown, which asked that that the Senate urge the Government to review, as a matter of urgency, the practice of employing workers under the guise of "independent contractor/contract worker", and that the Government take the necessary steps to urgently standardise the definition of "worker" in the labour laws of Jamaica.