Almost a year after the Supreme Court’s landmark ruling which determined that security guards at Marksman Limited were employees and not independent contractors, a newly formed Security Guard Taskforce is hauling the company back before the courts in a fresh action.

The hearing, which is set for December, is to thrash out a controversial new contract which guards are being pressured to sign. It would see them relinquishing their rights to all benefits before the September 2022 ruling, according to the Union of Clerical, Administrative and Supervisory Employees (UCASE). That ruling had stemmed from claims brought by the National Housing Trust (NHT), seeking to recoup unpaid statutory deductions from the security company, which should have been handed over on behalf of their workers.

The contract, a copy of which the Jamaica Observer saw, is captioned as an agreement to terminate contract for services (as an) independent contractor.

It said further: “The officer was engaged as an independent contractor” on a fixed-term contract that would have come to an end pursuant to the Supreme Court judgment in which the court determined “with prospective effect that the security engaged under the contract and who provided services to third parties are in fact employees”.

“And because of that decision, the parties to the contract have agreed that the contract will terminate by mutual agreement without blame or fault as of March 31, 2023 on the terms and conditions set out hereunder.”

“What we are saying is that there are a number of issues that have to be settled before you can ask the workers to sign these new contracts, such as outstanding NHT payment, National Insurance Scheme [NIS] payments. Workers have had injuries on the job, some were shot, some had motor vehicle accidents, and all of these are matters that the workers are saying need to be resolved before we can sign. What has been happening is that workers who refuse to sign, they have been victimised by layoffs, they turn up for work and are not assigned any duty,” President of the union Vincent Morrison told the Observer on Sunday.

He was speaking just ahead of a meeting in which dozens of security guards gathered at UCASE’s offices on West King’s House Road in St Andrew. Morrison said that many of the guards have not been allowed to work since April because they refused to sign the new contracts and agree to the terms therein.

“To ask a worker who is transitioning with the company [to a new regime] to sign a document extinguishing their benefits, that is not the law or the practice. That is not how we do it in Jamaica and we have a lot of examples of that here. So to ask them to sign away their rights in this way, especially in light of the fact that the court established that they are employees and not contractors, it would not only be unfair but unjust,” Morrison charged.

Several of the guards, some of whom have given over 20 years’ service, in contending that they were being “unfairly treated”, said they could not countenance cancelling the benefits they were due from the deductions which were taken from their meagre salaries over the years.

“Which one of unuh mutually agree to terminate anything? They are asking you to sign a paper saying that you and them agree, you and them agree anything? How can you sign that? Dictatorship, ramming it down your throat, not fair. And when you go down and start read the terms yuh stomach sick,” attorney-at-law Leonard Green, who filed the action, said to loud murmurs of agreement from the miffed guards.

“It is so unfair, they are deducting NIS, NHT, everything, but they are saying you are not employees…they want you to give up your legal rights, you are going to be put on probation for 90 days. The court said you are employees, and they [companies] are asking you to agree that you were not employees and that’s why we are taking them to court,” Green added.

“We are asking the court to say that this attempt for you to use your pen and throw away your rights is unjust and unfair,” he stated.

“There are 25,000 registered security guards in Jamaica, more than the police and the army put together. They must give us answers as to what they have been doing in the interest of our guards,” Green went on.

On Sunday, Green and Morrison intimated that it could spell trouble for not only the security company, but the Government as well, should the plight of the security guards be ignored, given the looming local government and general elections.

“We have 25,000 security guards out there. When we curate the numbers, no minister will ignore us, all of them will perk up because you know many people lose seat by 200 and 300 votes?” Green said.

“And wi children and wi grandchildren inna it to,” one guard chimed in, suggesting that other voters connected to the wronged guards could also be swayed.

In the meantime, several workers on Sunday said the Ministry of Labour was giving conflicting signals and should show its hand in the matter.

According to several of the workers, they had approached the ministry to query their rights as it related to the insistence of their employers that they sign the new contracts. According to one worker, who said he had some 23 years’ service under his belt, he was told by the ministry that he would need to present all pay stubs dating back to his first day of employment. He said he was also told that he would only be able to retrieve six years of all the deductions. He said on that basis he refused to sign the contract, choosing to remain without a salary.

Several workers also insisted that although their deductions were being made, they were not being paid over. One guard alleged that this extended to health cards and insurance policies.

In the Supreme Court’s decision handed down on Friday, September 23, 2022, the court ruled that effective then, third-party security guards employed to Marksman Security Limited were employees and not independent contractors and that the company should immediately begin paying over their three per cent NHT statutory contributions.

Marksman, in the wake of that ruling, said there would be an increase in the rates/fees to clients. The Government last January announced that it would be moving to amend over 500 contracts to upgrade the status of guards – hired through security guard firms to provide services at ministries, departments, and agencies – to employees by April 1. It, at the time, encouraged private sector firms to follow its lead in voluntarily renegotiating contracts with security guard firms.

Subsequently, in May this year, then Minister of Labour Karl Samuda announced a 33 per cent minimum wage increase for industrial security guards, from $10,500 to $14,000 per 40-hour workweek.