Helping to determine the employment laws — specifically security guards and their NHT contributions
the refund. XX
Dear XX:
Tell Claudienne sent your complaint to Guardsman Limited and they responded as follows:
“Since the mid-1980s, private security companies have contracted their security officers as independent contractors. Therefore, security officers have always been treated as self-employed individuals.
The existing arrangement is that the security companies pay the relevant statutories to the government agencies on their behalf. In the case of the National Housing Trust, Guardsman Limited pays over on behalf of each individual security officer the 3% required as a self-employed individual.
Despite this practice which has existed for over 30 years, at the beginning of each year we do recognise that our security officers experience difficulties in obtaining their refunds from the National Housing Trust.
The matter is being discussed with the various ministries and the NHT.”
The column sent the following email to the NHT:
“Tell Claudienne has learned that the NHT and some companies have a different interpretation of the Income Tax Act definition of who is an employee.
“The difference in the interpretation has, in some instances, affected security guards classified as independent contractors and has prevented them from receiving their NHT returns in a timely manner.
“Protracted discussions between the NHT and Guardsman, and other companies, on this issue over decades appear to be at a stalemate.
“Therefore, please kindly clarify if the NHT has been in dialogue with the Ministry of Justice and the attorney general re amendment of the Income Tax Act to clearly define who is a contract worker and who is an employee.
If there has been no dialogue between the justice ministry, the attorney general and the NHT on this matter, please clarify what steps the NHT plans to take to solve this issue.”
The NHT responded as follows :
“The National Housing Trust (NHT) is guided by the law in discharging its functions and fulfilling its mission and mandate to its contributors. In its interpretation and application of the law the NHT customarily seeks and obtains the advice of internal and/or external counsel, from the private and/or public bars, guided by established judicial precedents, before arriving at its
positions; the issue of categorisation of contributors as employees as opposed to independent contractors (self-employed) is no exception.
In these circumstances, while the NHT consistently reviews relevant legislation and, where necessary, makes recommendations to improve and advance same, the NHT is of the view that statute in tandem with the common law make clear the relevant considerations for such a designation.
To the extent that the NHT’S conciliatory attempts and demands to fillip compliance proves unsuccessful, particularly in circumstances where contributors are adversely affected, it is the practice of the NHT to seek judicial resolutions to these matters by way of litigation, having regard to the court’s essential function to interpret and apply the laws of the land.
In this regard, the NHT has initiated legal action against Guardsman Ltd and whereas the matter is currently before the court, the NHT reserves further comment on same until it has been judicially determined.”
The NHT has informed Tell Claudienne that the NHT court action with Guardsman was initiated in 2019 in the Corporate Area Parish Court Tax Division.
The NHT seeks an order for Guardsman Ltd to pay to the National Housing Trust (NHT) outstanding NHT contributions and interest for the years 2000-2017.
The NHT Act requires employers to pay contributions of five per cent to the NHT, two per cent of which is the employers’ contribution and three per cent the employees’ contribution.
Tell Claudienne has learned from The Court Administration Division of the Supreme Court that the dates for hearings of the matter in the tax court were: June 20, 2019, September 19, 2019, January 16, 2020 and November 19, 2020.
On November 19, 2020 the matter was adjourned pending the outcome of a matter before the Supreme Court.
The Supreme Court has been asked to determine if Guardsman Ltd is an employer or a subcontractor.
After the Supreme Court rules, the case is expected to continue in the tax court in 2021.
Tell Claudienne will continue to follow up this matter with the NHT and will inform you of the outcome.
We wish you all the best.
Have a problem with a store, utility, a company? Telephone 876- 936-9436 or cell # 876-484-1349 or write to: Tell Claudienne c/o Sunday Finance, Jamaica Observer, 40-42 1/2 Beechwood Avenue, Kingston 5; or e-mail: edwardsc@jamaicaobserver.com