Last week I wrote that it was time to show compassion for the unemployed. In the article I mentioned that exempting the unemployed from the labour laws would make it possible for them to rapidly find jobs of their own choosing. This article is intended to explain the exemption concept in greater detail and answer some of the questions that may have arisen in reader’s minds.
Who will qualify for exemption?
It is suggested that anyone who has been unemployed for six months or more should qualify, as of right, for exemption. The six month waiting period is a precaution against employers firing employees and promising to take them back when they have exemption certificates.
The task of issuing exemption certificates and identifying who qualifies could be assigned to any agencies or institutions (such as local authorities) that operate countrywide; it would not necessarily have to be carried out by the Department of Labour. A simple procedure could be adopted, requiring an applicant to complete an application form and sign a declaration confirming the period for which she/he has been unemployed. All applicants would have to be made aware of the penalties for making false declarations. Placing an onerous and time-consuming burden of proof on applicants regarding the length of time they have been jobless would be unfair, and should be avoided.
No official should have the discretionary power to refuse to issue an exemption certificate (called for convenience a Job Seekers’ Exemption Certificate or JSEC) to a genuinely qualifying unemployed person: legislation should set objective criteria that will allow qualifying individuals to claim certificates as of right. No fees should be payable by the unemployed, and this fact should be widely advertised to avoid corruption. JSECs, ideally, should be issued immediately on receipt of applications and signed declarations.
The exemption should cover all the labour laws
If the JSECs are to be effective, they should exempt the unemployed from all the laws and regulations under the jurisdiction of the Department of Labour. This would allow the certificate-holder to offer a prospective employer an agreement that is free of inadvertent transgressions under the statutes. Firms that currently do not hire labour because they are fearful of prosecution for breaking laws they are not aware of, or that avoid hiring because of the administrative complexity related to employing staff, would then be encouraged to hire holders of exemption certificates.
A partial exemption would compel prospective employers to study the legislation in order to determine their legal responsibilities. Such an exercise is beyond the capabilities of many potential employers, and it would tend to become another barrier to employment. The thrust of this proposal is that long-term unemployed people are better off being employed and protected by the common law than being unemployed and kept in that condition by laws providing a high level of job security to others.
No one can seriously contend that an unemployed person is better off remaining unemployed than relying on an employment contract and the common law as protection against a potentially unscrupulous employer. Reasonable employers significantly outnumber bad employers, but in any event the holder of an exemption certificate would also be in a better position than a non-holder to leave poor employment and find a better job. In fact, one of the primary purposes of the JSEC would be to give its holder the opportunity to change jobs more easily.
Employee exemption must provide the employer with total protection
While it is the employee and not the employer who enjoys the exemption from the labour laws, it does mean that employers of exempted employees are protected from the provisions of any legislation from which those employees have been exempted. The exemption should remain valid only as long as the employee chooses.
Certificate-holders should have the right to cancel their exempt status at any time within the two-year validity period of the certificate, on giving appropriate notice to their employers in terms of their employment contracts. They may then either leave their employment or negotiate new contracts that are fully subject to the labour laws. However, there should be no requirement compelling employers to transfer exempted employees to regular employment contracts, as this would almost totally negate the contractual freedom that is the principal benefit of the certificates.
Exempted employees and their employers should be required to enter into simple straightforward written employment contracts detailing the essential terms of their agreements. Employers should further be required to retain certified copies of their exempted employees’ certificates, but should under no circumstances be entitled to keep the originals, which would be the exclusive property of the holders. The written contracts together with the copies of the JSEC should be all that is necessary to protect employers from charges of infringing the labour laws.
Why JSECs should be valid for at least two years
Exemption terms for the certificates should be long enough for their holders to consolidate their positions on the job market. Firstly, the possession of an exemption certificate will not necessarily be a passport to an immediate job. Secondly, the exempted person may change jobs several times before finding suitable employment. Thereafter, the employee will need to build up an employment record that will satisfy potential future employers of her/his abilities and reliability, or to satisfy an existing employer that she/he deserves to be appointed to permanent formal employment.
Employers become understandably wary of employing people who have been without work for a long time. Unemployed people therefore need the opportunity to prove their worth. They need to be able to say to an employer, ‘Give me a chance and I will show you what I can do!’ The JSEC would make that possible. Certificate-holders may, for example:
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agree to start at very low wages in order to learn skills on the job that they could not acquire otherwise;
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settle for low starting wages with periodic adjustments as they demonstrate their worth;
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change employers regularly as they find increasingly attractive employment and discover better ways to exploit their newly-learned skills;
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work long hours in order to get their feet on the first rung of the employment ladder;
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engage in day-to-day employment terminable at 24 hours’ notice from either side.
Experimenting with job opportunities and acquiring skills requires time and the kind of latitude provided by the proposed certificates. A period of at least two years is necessary to give exempted people a chance of obtaining regular employment after the expiry of the certificate.
Basic, simple, employment contracts
Written employment contracts between exempt employees and their employers should be obligatory so that there can be no doubt as to the basis of their agreements. In the interests of the employees, however, these should be as simple and uncomplicated as possible. Items that should appear in every agreement are:
1. Names of the parties to the contract together with identifying information such as identity numbers and company registration numbers.
2. Nature of the work to be performed by the employee.
3. Date of commencement of the contract.
4. Salary or wage payable per hour, day, week or month.
5. Hours of work.
6. Overtime conditions and remuneration.
7. Day of the week or month upon which remuneration will be paid.
8. Annual leave conditions.
Testing the proposal
If government wishes to do a trial run it could choose an area where unemployment is exceptionally high to test whether the possession of a JSEC improves the chances of an unemployed person of getting a job. Government owes it to the 8.2 million jobless to give this proposal a chance.
Source: This article may be republished without prior consent but with acknowledgement to the author. The views expressed in the article are the author’s and are not necessarily shared by the members of the Foundation.