In accusing the Industrial Disputes Tribunal (IDT) of bias, the private sector must do more than simply cite the preponderance of rulings made in favour of employees. That is no more convincing than arguing that because 70 per cent of murder trials end in acquittal, the court is biased in favour of persons accused of murder.

Unlike the Supreme Court that publishes not only its statistics but its judgements, the IDT publishes nothing. It does not even have a website, so it is not possible for ordinary citizens like me, through careful scrutiny, to form an opinion on the fairness of its rulings. Unlike in court judgements, the IDT is not obliged to give reasons for its rulings, so such scrutiny may well be useless.

An article published in the Jamaica Observer on February 20 by attorney Gavin Goffe was a little more helpful. In it he cites two cases in which, based on the facts he presented, dismissal was patently justified, but the IDT ruled in favour of the dismissed workers. How representative of the IDT rulings these cases are is impossible to say.

If these rulings were based on procedural flaws, that is something that needs to be revisited. It is grossly absurd for an employee, whose action in stealing from his employer is not disputed, to be awarded compensation for wrongful dismissal purely on the basis that the required procedures were not followed. The IDT does not seem to have the authority to advise the employer to go back and do it properly.

Mr Goffe cited another case in which the employee was dismissed after he cleverly frustrated and avoided the conduct of the proper procedures. The IDT ordered that the employer pay him $4 million for wrongful dismissal.

In formulating its rulings, the IDT is required to ensure that the relevant laws pertaining to the rights and obligations of workers and employers are observed, as well as the terms of any collective bargaining agreement or contract. Its decisions are final and can only be reviewed by a court on points of law.

The law is not innately an ass; it becomes one only when it is deliberately or inadvertently so designed. Perhaps employers who fail to follow the required procedures in dismissing a worker should be subject to some form of penalty, but the dismissal should not be void ab initio in the face of compelling evidence that it was justified.

The wider issue of our labour laws and practices

The debate as to whether the IDT is biased in its rulings has overshadowed the broader issue of Jamaica’s labour laws and labour market practices.

The Labour Relations and Industrial Disputes Act and the appended Labour Relations Code have been in existence for more than 40 years. So too have other relevant statutes such as the Employment (Termination and Redundancy Payments) Act and the Maternity Leave Act. Much has changed since then in the way successful economies work and how labour market arrangements affect them. Hence, the call for a review of our labour laws and practices should not be resisted.

Indeed, such a review was commissioned more than 20 years ago and a committee headed by the late Professor George Eaton submitted an interim report in 1996. Some of its recommendations were implemented while others have languished. It would be useful, therefore, not only to re-examine the outstanding recommendations but, with a further 23 years having elapsed and in the context of today’s reality, to do a general review of the relevant laws and regulations as well as the practices that have developed, both in the dispute referral processes and at the workplace.

A review will have to consider the calls for greater flexibility in the labour market. Flexi-week legislation, one of the recommendations of the Eaton Committee, was finally approved in 2014. However, some argue that more needs to be done to make the labour market more responsive to the dynamics of efficiently producing goods and services and competing in the global sphere. This involves a closer alignment between wages and output in order to reduce the real cost of labour, which must be clearly distinguished from the actual wages paid.

Former German Chancellor Gerhard Schröder initiated significant labour market reforms in 2003 which helped to lay the foundation for Germany’s economic dominance in Europe. President Emmanual Macron of France, against formidable public resistance, is attempting to do the same to reverse France’s anaemic economic performance, which has averaged less than one per cent annual growth for the last 10 years.

Those who are fearful of a review, or are clamouring for a review because they believe that it would tip the scales in their favour, need to take stock of the issues. Such a review, in order to be relevant, would have to take into account the practices that obtain in other countries. There are wide divergences in labour regulations across the world; Jamaica’s labour market arrangements fall somewhere in the middle.

Any review must carefully balance the rights and entitlements of workers with the need to achieve competitiveness to encourage investment and employment creation. Too much protection increases the cost of labour, induces workers to be complacent and less productive, and discourages investment. Too little protection leaves workers insecure, vulnerable to exploitation, dissatisfied, and similarly less productive.

How Jamaica compares with other countries

Currently, it costs a Jamaican employer 12 per cent of actual wages to employ a worker. This is to cover the cost of its mandatory NIS, NHT and HEART contributions and Education Tax. To this must be added the cost of vacation, sick and maternity leave, as well as severance pay and the expenses associated with dispute settlement.

The United States is market-centric, notoriously weak in terms of labour regulations, and believes that the terms and conditions of employment should largely be left to agreement between the employer and the individual employee or his trade union. A US employer’s cost of labour is just under eight per cent of wages and is restricted to contributions toward Social Security and Medicare.

The US has no stipulated number of hours that constitute a normal workday or week, no provision for vacation or maternity leave, and employers are not obliged to allow employees to be absent from work on federal public holidays or to pay any premium for working on those days. An employee can be dismissed at will and without cause and there is no legal requirement for severance pay.

Canada effectively minimises the employer’s cost of labour and enhances the worker’s take-home pay by financing social security benefits (health and pension) from general revenue. Severance payment is capped at six months’ salary, regardless of length of service. Germany and Mexico maintain a 48-hour workweek.

Some other countries are far more worker-friendly. In Italy, the law stipulates that even poor performance is not a justifiable reason for dismissal, and dismissed workers must receive severance pay regardless of the reason for dismissal. Employees are legally entitled to four weeks of paid vacation leave each year and a bonus of one month’s salary at Christmas.

In Brazil, employees are also legally entitled to an annual bonus of one month’s salary and to a share of the profit made by their employer. They must also be paid transportation and meal allowances in addition to their normal wage. Employers are required to deposit on a monthly basis the equivalent of eight per cent of each worker’s wage into a special account, administered by an official federal financial institution to meet future severance pay obligations. This places a huge burden on their cash flow and profitability. The cost to an employer of hiring a worker in Brazil is 28 per cent of the worker’s wage.

In the United Kingdom, an employee is entitled to 39 weeks of paid maternity leave (at 90 per cent of her normal wage), compared with 12 weeks in Jamaica.

Contrary to a widely held notion, China has detailed labour laws that, in a few provisions, are more protective of workers than here in Jamaica. For example, fixed-term contract workers are legally entitled to severance pay like all other workers if the contract is not renewed.

Some issues to be addressed

A major issue that has forever defied determination in Jamaica is whether a strike constitutes a worker’s abandonment of his job or an action pursuant to an industrial dispute. Judges in our courts have taken divergent positions on this.

Jamaican law does not enshrine the right to strike. We have ended up with a concept of the “freedom to strike”. A strike is regarded in law as an industrial action and is defined as “a concerted stoppage of work by a group of workers in contemplation or furtherance of an industrial dispute”. The law stipulates the procedures that must be followed before any industrial action is taken. Yet, striking workers seem to be at no risk of losing their jobs when those procedures are not followed — a clear inconsistency with how the dismissal of workers is treated.

Go-slows and sick-outs, which have the effect of “preventing or reducing the production of goods or the provision of services”, are also defined in the law as industrial action. Is it fair for an employer to be legally obliged to pay his “go-slowing” employee his normal wage? In the spirit of “a fair day’s work for a fair day’s pay”, is it not dishonest for that employee to demand that wage?

The whole purpose of the provisions in the Labour Relations and Industrial Disputes Act was to obviate impulsive and disruptive actions — not to coexist with them.

IDT must command confidence and respect

Separate from the question of the impartiality of the IDT, the competence of its membership and the adequacy of the facilities that are in place to ensure the efficiency of its operations should be addressed. As one of our most important quasi-judicial bodies, we must ensure that its appointments are considered seriously and not treated as a retirement benefit and that it is manned by persons well versed in labour relations and the interpretation and application of law and contracts. It is not sufficient to simply strike a balance in its membership between worker and employer representatives. The integrity of its awards and rulings must command confidence and respect — no less than that of our courts.

The Labour Market Reform Committee did not go out of existence. The 1996 Report was declared to be an “interim Report”, implying that more was to come. The membership of the committee, now called “commission” has been periodically renewed. It needs to present us with a comprehensive analysis and set of recommendations so that the charges and complaints can give way to constructive discussions and consideration of specific proposals to ensure that we get it right.