16.03.16

Time to Not Vote

Gavin Goffe
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Time to Not Vote

There are reports that the Ministry of Labour and Social Security has been advising employers that their workers are entitled to time off from work on Election Day, even those who are not registered to vote. A decade ago, this advisory might not have caused much concern. But today, the Electoral Office of Jamaica’s website is a useful resource for business owners concerned about unnecessarily lost productivity. For businesses that depend on continuity, such as call centres, private security firms and the transportation sector, knowing which employees will be available to work next week Thursday could be a critical management tool. But not if the Ministry of Labour is correct in its interpretation of the law.

The upcoming general election will be second since the Electoral Office of Jamaica started allowing the public to perform an online search of the Voter’s List. The search tool has received significant attention in the past few months, partially because of the concern that voter’s home addresses were too easy to obtain from the website. Thankfully, this should no longer be a concern as home addresses are no longer displayed online. What has not changed is that anyone can find out whether an employee is registered to vote by simply inputting their full name and date of birth. That is information that is readily available in all personnel files. Several companies have already advised their employees that only persons whose names appear on the Voter’s List will be allowed time off to cast their ballots. A reasonable position, it would seem, based on common sense.

The Representation of the People Act is the law that governs the electoral process, including registration of voters and the time that ought to be allowed to employees to vote.

The Representation of the People (Leave and Symbols) Regulations, passed back in 1944, provides that all employees whose work on Election Day begins before 10am or ends after 2pm will be entitled to 3 hours of time off. The precise language of the law is as follows:

      1. "Subject to the provisions of paragraph (2), every employer shall permit each of his employees to be absent from his work on Polling day for three hours in addition to the normal meal hour.
      2. The provisions of paragraph (1) shall not apply to any employee whose work on polling day commences at or after 10.00 a.m. or concludes before or at 2.00 p.m."

On its face, the Regulation neither confines itself to those who exercise their franchise, nor states that the purpose of the time off is to facilitate voting. But the law is not a shackle to enslave. It must be interpreted purposefully and in its proper context. Perhaps, in the wake of the fight for Universal Adult Suffrage, the thought that Jamaicans might choose not to register to vote, might not have been at the forefront of the draftsman’s mind. Or perhaps the reason that the Regulations don’t make reference to non-registered voters, is that the Regulations only apply to registered voters to begin with.

The Representation of the People Act, the principal law under which the leave and symbols regulations was passed, provides the scope within which these regulations must operate. The Act expressly gives the Minister the power to “prescribe the period during which every employer shall permit his employees to be absent from work for the purpose of recording their votes”. The principal legislation makes it clear, therefore, that the Regulations are only concerned with giving employees time off for one purpose and one purpose only – that is to record their votes. Employees who have the right, but not the power to vote, are not within the scope of the regulations at all.

Registering to vote does not affect one’s freedom to choose not to vote. That freedom is guaranteed by the Constitution and facilitated by the legislation. An employee retains that freedom to choose not to vote all the way into the voting booth. He or she is free to walk out without casting a ballot. An employee does not, therefore, need to prove that he or she will, in fact, vote in order to get time off from work. The only qualification ought to be that they are able to vote at the material time. In contrast, an employee who seeks time off from work, purportedly to vote, when he knows that he is not registered to do so could well face disciplinary charges of dishonesty. This is particularly so if the employee is an hourly worker and paid by the Company for the time that he is supposedly casting his ballot.

Not all employees may register to vote in Jamaica. Employees under the age of 18, Jamaicans normally resident overseas, foreigners and the mentally insane are all ineligible. The law could never have intended that these persons, who are constitutionally barred from voting, should be permitted time off from work on Election Day. Had this been the intention, Election Day would have been made a public holiday, just like Labour Day. Although we are encouraged to participate in a community project on Labour Day, the law which gives us that day as a public holiday makes no reference to the purpose for which the time off is given.

This year’s election will also be the first since our laws were amended to introduce flexible work arrangements. That law recognizes that business is done differently in the 21st century and that business owners should have the freedom to organize employees’ schedules in a way that maximizes productivity, efficiency and continuity. A company that has implemented flexible work arrangements will be better positioned to minimize Election Day disruption than one that is not. Those businesses might, for example, schedule work shifts from 6am to 2pm and/or from 10am to 6pm so that they are still able to get a full 8-hour work day from all employees. That is the type of advice and guidance that should, ideally, be coming from the Ministry of Labour.

Gavin Goffe is a Partner at Myers, Fletcher & Gordon and is a member of the firm's Litigation Department. Gavin may be contacted via gavin.goffe@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.