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GUARDS’ RIGHTS UNDER FIRE

Attorney urges security officers not to sign problematic contracts ahead of employee restructure deadline

Published:Thursday | March 23, 2023 | 12:53 AMKimone Francis/Senior Staff Reporter
National Workers Union President Vincent Morrison.
National Workers Union President Vincent Morrison.
Attorney-at-law Robert Moore.
Attorney-at-law Robert Moore.
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A PUSH for security guards across the island to sign contracts ahead of April 1 when they are to be recognised as employees instead of independent contractors is being met with resistance by one legal mind and a seasoned trade unionist who argue...

A PUSH for security guards across the island to sign contracts ahead of April 1 when they are to be recognised as employees instead of independent contractors is being met with resistance by one legal mind and a seasoned trade unionist who argue that workers are being forced to give up their rights.

Several security guards linked to Hawkeye Jamaica have also taken issue with a policy request from the company that they discontinue claims being brought against it at the signing of the new contract.

Guards have been asked to confirm that they have no “pending claims, proceedings, or disputes” of any nature with Hawkeye and to “waive any claims or disputes” that they could have.

Hawkeye has also asked that the guards “unconditionally release and discharge” the company from all past liability “to the fullest extent possible under the law”.

In exchange, the guards are to be signed to an 18-month contract from April 1, 2023, to September 2024 at an hourly rate of $262.50 and laundry at $47.62. They will be entitled to vacation and sick leave and will serve a three-month probationary period.

The contract said the normal work week comprises between 40 and 60 hours worked over the course of up to six days but may be varied in accordance with the needs of the business and its clients.

It is not clear if guards will become a part of a pension scheme with the company.

Meanwhile, Guardsman Metaverse Limited is asking security guards to sign contracts that will take effect on April 1 and end some time next year.

Guards are to continue working under Guardsman Limited or Marksman Limited for $262.60 per hour and $47.62 for laundry. For firearm premium, the rate is $51.95 cents per hour and canine and handler premium's rate has been capped at $35.72.

Their work hours are to be 12 hours per day over five or six days per week. The probationary period is to be 90 days.

ASKED TO WAIVE RIGHTS

But attorney-at-law Robert Moore, who has represented a number of security guards in industrial matters, told The Gleaner that what guards are being asked to sign to is problematic.

He said that with respect to Hawkeye, the pre-composed release letter, if signed, would cause them to waive their rights as it relates to claims they may have.

“It would prevent them from making claims as it regards unpaid vacation leave, overtime that they were not paid in accordance with the Minimum Wage (Industrial Security Guards) Act, and claims for redundancy,” Moore said.

He pointed to the landmark ruling handed down in the Supreme Court in September by Justice David Batts that security guards who are engaged by Marksman Limited are employees and not contract workers.

The ruling stemmed from claims brought by the National Housing Trust, which was seeking to recoup sums unpaid by security companies on behalf of their workers.

As a result, the Government said effective April 1, guards working for scores of security firms that have contracts with the Government would be recognised as employees in keeping with the court ruling.

The Government has more than 500 contracts for security services across ministries, departments, and agencies.

Further, the Government said that it would terminate its contracts with security companies that do not comply.

Security firms had expressed concerns that they would not have been able to pay the new benefits as at the date of the landmark ruling in September 2022.

Speaking at a security forum attended by several stakeholders of the security industry last week, Batts noted that security companies had at least three years since the National Housing Trust had formally written to the courts about the unlawful acts being carried out by the companies.

“In 2018 when the suit was commenced, even if your legal advice said you are correct and you have a 90 per cent chance of winning, prudence would have dictated that you started to put a few things in place in the event the case goes other than how your lawyer predicted,” he charged.

“Think of a landlord and tenant, where the landlord has taken his tenant to court and after how many years finally managed to win. He gets an order for possession, and the tenant says, 'Hold on. I just lost the case. Give me another year, nuh!' So we have to balance the thing,” he said, adding that lawyers may be able to give advice on arguing the judgment but that it was not his place to do so.

Moore said under the Minimum Wage (Industrial Security Guards) Act, guards are to be paid time and a half, and he has not seen where this has been done or is to be done.

He said that after 40 hours have been worked, guards ought to be paid at a different rate for the additional 20 hours.

Added to that, he said Hawkeye's requirement for workers to sign the provision that prevents claims against them is fraught with issues.

“The company is overlooking the fact that if a worker refuses to sign and they wish to part ways with the worker, the issue now at termination of employment is the issue for determination and that issue would give rise to notice pay and possible redundancy pay,” he said.

“What is being represented, as I understand it, is that if you execute this document, then we will take you on board, but if you don't execute this document, then we will not continue with you in our employment,” he added.

He said that the contract being presented is no guarantee of security of employment.

Moore said that the contracts being offered speak to a probationary period, which allows either party to terminate at any time.

“So if the guard has agreed to waive his or her right to any previous claim of liabilities among other things and then enters into this contract, the company can, within the first 90 days, terminate the contract. If and when the contract is terminated, it would mean that they would not be entitled to redress because they would have agreed,” he said.

“My advice is not to sign, especially, a release. I would not sign,” said Moore.

He said it is then up to the company, if the worker does not sign, to determine if it is bringing the contract to an end.

He said if this is done, then the company would have to look at whether it was a fixed-term contract and if there is any period remaining, or consider the number of years spent to determine the appropriate notice pay or redundancy payment.

'ONE-YEAR CONTRACTS DON'T MAKE SENSE'

President of the Union of Clerical, Administrative and Supervisory Employees (UCASE) Vincent Morrison, who is acting as a consultant to security guards, has argued that the workers were not allowed an input before the contracts were drafted.

He said that workers would have to sign a new contract every year, nullifying their years of service. This, he said, should not be.

“This one-year contract does not make sense. If you have to go to the embassy to look a visa, one-year contract not going to give it to you. If you go a Courts to trust a bed, them a go tell you seh you nuh have nuh employment. It is cruel and wicked of the company for workers who worked over 40 years to be treated this way,” Morrison told The Gleaner.

The trade unionist said in the context of the current climate, where the risks of the job have increased with guards facing injury or death, companies must step up.

“It is cruel. The worker needs help. The industrial relations side of the thing, they are not unionised,” he charged.

Morrison said his requests to meet with Labour and Social Security Minister Karl Samuda for discussion on the establishment of the joint industrial council have been ignored.

He said, too, that there has been no response from Guardsman Group, which is Jamaica's largest private-security company, and the Jamaica Society for Industrial Security (JSIS) to have discussions regarding the council.

“The question is why is everybody hiding from the union and the workers when we have laws, we have precedence, [and] we have convention,” he noted.

“ ... I am urging the Government, through the prime minister, to have a serious look on approaching all the stakeholders so that we can put a joint industrial council together and say to the world that we have a partnership,” said Morrison

He said this would send a message to the country that the working class is recognised and respected.

Lieutenant Commander George Overton, president of JSIS, admitted to The Gleaner that what has been presented to security guards by some companies borders on going overboard.

“Some of the wording that's being used by some of the companies in the industry are probably going a little too far, but it's a formality that you have to terminate an engagement to begin another because they are very different contracts. The termination agreements are what people seem to be having a challenge with,” he said.

Overton, director of operations at Guardsman Group Limited, said that there are ways to deal with these issues.

“You can resign. You can offer your resignation instead of signing the termination and then come back and get the other contract,” he said.

kimone.francis@gleanerjm.com