The Shape of Things to Come

Geoff Southern is bringing a proposition to nullify the Ministerial Decision by Susie Pinel which to extended the qualifying period for unfair dismissal complaints from 6 months to one year.

By the time this blog goes out, he will almost certainly have lost the vote, but the matter is important to consider because of what else it tells us about how Ministerial government works, and how it is shaped more by perception that fact.

Whatever one may think of the merits of a shorter period, and I am undecided on that myself, it is noteworthy that he quotes the Employment Forum as one of his arguments:

“The Forum has found no evidence that a longer qualifying period would have a positive impact on employment and job opportunities. The Forum considered whether the consultation revealed any other reasons that might support a longer qualifying period. The Forum has concluded that the potentially detrimental impact of a longer qualifying period outweighs the potentially positive factors to such an extent that the Forum cannot recommend a longer qualifying period. The Forum recommends by way of a majority decision that the qualifying period for protection against unfair dismissal should remain at 26 weeks.”

He asks the very pertinent question –

“The body tasked with the duty to advise the minister and the States on employment issues has clearly decided against the decision of the current Minister. One has to ask what has changed so significantly over the past 18 months to justify the Minister’s contrary decision.”

In other words, why bother with an employment forum if you are simply going to toss their reports into the waste paper basket?

In her comments, Susie Pinel says that:

“Employers and their representatives had expressed clear concerns that Jersey’s 26 week qualifying period was a significant factor in preventing or discouraging them from taking on more staff. While it is not possible to quantify the significance of the qualifying period in recruitment decisions, this perception nevertheless exists. Lifting this restriction is expected to boost employers’ confidence.”

That’s fine as far as it goes – provided that some kind of mechanisms are in place to quantify if changing the period will boost recruitment, and long term recruitment, rather than simply taking on staff on a temporary basis for under a year.

Retail outlets probably have a fairly consistent pattern of sales, but service companies – electricians, plumbers, carpenters, builders, etc may well have fluctuating demands on employment, and while this may enable them to take on more staff for a short term, they may well find that it is advantageous when planning short term projects to take on staff, and let them go in slack periods.

Of course, any work for someone unemployed has to be good, but the patterns of recruitment and dismissals should be carefully monitored to see exactly what are the unintended consequences of this change. There seems to be no provision for this.

The Minister’s reply stated that:

“While the Forum found no direct evidence that a longer qualifying period would make a difference to job opportunities, it also found no direct evidence that it would not make a difference, or that 26 weeks is the correct qualifying period.”

So the change is being made on the basis of employers’ perceptions, and comparison with other jurisdictions, and the Minister’s point is a valid one. But it highlights the problem in the lack of data. How do we know that the Minister’s change will make a difference, and one for the better? The same lack of evidence that allowed her to circumvent the forum would surely also apply.

And why having quoted with approval the Chief Minister that “In order to remain aligned to our competitors I will propose pilot exemptions to the Employment Law for small business starting with an extension to the qualifying period for unfair dismissal claims.” – she then goes ahead with a blanket change, not one helpful to small businesses?

It is noteworthy that other jurisdictions have no trouble with this kind of distinction. For instance, the Fair Work Act in Australia defines the minimum period to be 6 months at the time of the dismissal, unless the employer is a small business employer, in which case a 12 month qualifying period applies. If the argument is that 12 months applies in other jurisdictions, which is cited with approval, should we adopt a pick-n-mix attitude, or look at other aspects of their legislation?

But probably the most significant part of the reply by the Minister is encapsulated in the following paragraph:

“The report accompanying the Proposition states that to bring this: “by order rather than by regulation is a deliberate attempt by the Minister to avoid debate”. The change was made by Order because the Employment (Jersey) Law 2003, as adopted by the Assembly in 2003, gives the Minister the power to prescribe a different qualifying period by Order. This structure is how we ensure that legislative matters are dealt with quickly and efficiently, with 140 Ministerial Orders made in 2014.”

The way in which legislation is now framed is increasingly designed so that changes can be made by Ministerial decision, without recourse to the States Assembly. A framework is put in place, and orders can be taken by Ministerial decision to widen the scope of the legislation and put flesh on the bare bones.

It is true that it does ensure that legislative matters can be dealt with quickly and efficiently, but it also provides an avenue for by-passing the democratic accountability of bringing the matter to the States. Of course a States member can bring a motion to rescind a decision, but it is much harder to roll back a decision made than for a Minister to have to win the Assembly over with a proposition.

When it was just a small track, this was perhaps not so important, but now Ministerial decisions have become more of a large highway. They are quick, efficient – and lack accountability.