Attorney-at-law Gavin Goffe is urging the Government to reform its labour laws.

Speaking yesterday at the Private Sector Organisation of Jamaica (PSOJ) virtual Economic Series, aimed at making Jamaica investor-friendly through labour reform, Goffe said aspects of the labour law are outdated and need to be revised.

“We have a labour relations code that has not been updated in 44 years. In spite of the efforts that employers, trade unions and employee organisations have fought to see that this document can be updated, we don’t seem to be making any progress with it,” said Goffe, who is a partner at Myers, Fletcher and Gordon.

He said that Jamaica is a different country now from when the laws were formed. “In the late 1970s our work environment was very different from it is now, and it is very different than it’s going to be in the next five years, especially with how we are doing work now. Having a 44-year-old document still guiding us in our employment relations is just useless,” said Goffe.

Goffe went on to say that there is uncertainty in the guidelines when providing severance costs as employees may end up paying an exorbitant amount to employees, which could even cause bankruptcy. He said Jamaica should have a set formula for calculating severance pay, as other countries are doing. By doing so, he added, would ensure that employees would be able to survive and transition into another job.

“In Jamaica you could find yourself terminating somebody and paying millions of dollars or equating to some times two or three years worth of salary to an employee because of that termination. And very often the feeling in the employment sector is that these payments are punitive, as opposed to compensate an employee and get them back on their feet,” Goffe explained.

Citing a recent case, Goffe stated that, “there was an award from our tribunal, where an employee who had been dismissed had found a better paying, permanent job literally two months after they have been terminated, and they still awarded that employee one year of salary”.

He said this is sending the wrong message and discouraging employers to bring more people into the workforce if this is some of the costs they might have to pay when the relationship has ended.

Branding business process outsourcing (BPO) as the “golden geese for our employment sector”, Goffe stated that because of the inflexible regulations, which are not friendly to investors, the country will see a decline in foreign investments. He said that in an effort to attract investors, the Government should ensure that there is no trade unions in these BPOs.

“Some of the ways which industries have formed a way out of the system includes, [having] no unions in BPOs within the special economic zones. So, in order to attract these investments in this high growth employment area, the Government had to essentially say that we are going to shield you from the trade unions,” said Goffe.

He clarified that at the start of 2020 it was estimated that about 40,000 employees were in the BPO sector, and that’s up from 26,000 in 2018 and 17,000 in 2014. BPOs have the highest employment growth rate of any sector in the last decade and they contributed four per cent of GDP in 2018, without union representation.

Blacklisting so-called bad employees in BPOs is also a common practice, according to Goffe.

“They are laws in some countries which prevent this, but we don’t have that here. When we speak of labour law reform, we are including both employees and employers,” said Goffe.

Outlining ways in which employers are finding loopholes in the labour law, Goffe spoke about fixed-term contracts. “A lot of employers are using fixed-term contracts for six months, one year or two years. What [this] means is that they don’t have to be hit with these enormous costs. They will safely say, ‘I’m going to wait until your contract is up and I’m not going to renew it’ or if taken to the tribunal, [they will] only pay the balance of your contract, which might only be one month,” he said.

Goffe also noted that contract breaks are often used by employers as a way to evade the law. He explained that an employee will be sent home for two weeks or more each year, ultimately setting back the clock on the number of years they have worked. This results in the workers not qualifying for vacations because every year of employment is their first year of employment.

Appearing to chastise the Government, Goffe mentioned the Petrojam scandal, which was brought to light in 2018, and which he said the State-owned company secretly paid a public servant millions of dollars, using a non-disclosure agreement to avoid going to their industrial dispute tribunal.

“This is a State-run tribunal, and the State is paying millions of dollars to not have to go before. [This] highlights the problem the private sector has because we don’t have the resources of the Government to be able to pay our way out of [these situations]. But the Government, which is mandated to ensure that this tribunal itself is fair, is using taxpayer money to not go there,” Goffe said, highlighting the inconsistencies in the Government’s attitude to this agency.