Falklands : Legislative Council 22 February 2008 (Part 2)
Submitted by Falkland Islands News Network (Juanita Brock) 25.02.2008 (Article Archived on 10.03.2008)
The Debate over Positive Discrimination
LEGISLATIVE COUNCIL FRIDAY, 22 FEBRUARY 2008
(Part 2 The Debate on Positive Discrimination)
Motion No 1 of 2008 by the Hon Dr Andrea Clausen:
“That this House supports the principle of positive discrimination in favour of Falkland Islands Status Holders but not the current policy of preferential treatment of Falkland Islands Status Holders in the workplace.”
Proposed by the Hon Dr Andrea Clausen and seconded by the Hon Mrs Janet Robertson
AC: Throughout the history of the Falkland Islands and until as recently as the 1980s Falkland Islanders have had very few opportunities to secure a good education for professional employment. As a result, the lack of the lack of opportunities many Islanders left the Falklands in the mid 20th century to seek a better life.
1982 was a catalyst for change. There was a realisation that we needed a work force that was capable of rebuilding the country and developing the economy. In order to progress this an aggressive programme of education and training was established, enabling Islanders ready access to free, further and higher education.
At the same time the constitution was reviewed and the resulting 1985 Constitution made provision for positive discrimination in favour of Falkland Islands Status Holders. This allowed subsidiary legislation to be enacted, enabling Islanders to prevent the erosion of their culture and identity.
However, even subsequent to the constitutional provision, Falkland Islanders were not always afforded a fair chance, for example, in the allocation of licences in the newly established fishery in the mid 1980s.
However, more recently this has been rectified through the recently adopted Fisheries Conservation Management Ordinance 2005. The constitutional provision was made use of by requiring all shareholders of companies applying to be on the ITQ eligibility register to be Falkland Islands Status Holders.
The Falkland Islands Government currently operates a policy of preferential treatment for Falkland Islands Status Holders in the workplace. This is catered for by a public service policy and via discretion afforded to the Principal Immigration Officer under the Immigration Ordinance.
The public service policy of allows for an order of preference in making appointments and this is subsequently catered for under the Management Code.
1. The order of this preference is firstly, a Falkland Islander having status as described under section 17.5 of the Constitution
2. Secondly a person who holds a Permanent Residence Permit or their spouse who is resident in the Falklands
3. And lastly, anybody else.
Where an appointment panel is faced with a choice between Status Holder or a PRP Holder and a Work or Residence Permit holder the person hires on the preference list should be appointed provided that he or she meets the minimum person specifications for the job I. E. so long as the minimum person specifications are met the higher Status or PRP Holder will be appointed regardless of whether or not they were the best candidate for the job. So this policy does not allow for the appointment of Falkland Islands Status Holders or PRP holders to take place only when all other things are equal.
The Governor can direct a departure from the policy in a particular case. However, there is no guidance in place to determine when the Governor might exercise this power.
Outside of the Public Service the Principal Immigration Officer deems Falkland Islands Status and PRP holders to have the same entitlement to work as they are free from immigration restrictions.
Unless otherwise directed by the Governor the Principal Immigration Officer may require any employment vacancy to be advertised in the Falkland Islands before considering any application for a work permit. The employer must satisfy the Principal Immigration Officer that it is necessary to engage a person requiring a work permit rather than engage any person having a right of residence in the Islands.
In coming to a view on whether it is necessary to engage a non resident the Principal Immigration Officer is guided by the principle that the essential minimal person specifications should be proven.
Because many employers do not have detailed person specifications like the Government, this is often based on a job advert and a broad outline of a particular post. Sometimes employers are taken to task for what is seen as blatant over-specification of the duties and requirements for a particular post.
Provision made by the 1985 constitution and the subsequent policies of preferential treatment in the workplace have enabled many Falkland Islanders to gain the appropriate qualifications and experience to take up pivotal roles within our community, which in the recent past were occupied solely by non-residents.
However, I believe the continued application of this policy raises two significant issues which should be considered.
1. Firstly, are we content that the application of a minimum specification in the case of Falkland Islanders is an appropriate way to deliver the highest possible standards within our workforce in the long-term?
2. Is it right that the Falkland Islands Government should be able to dictate financial risk to the private sector?
I believe that we should strive to promote the best possible standards so that our workforce is capable of delivering a sustainable and flourishing economy. I also support the principal of ensuring that Falkland Islanders have the best possible opportunities but not at any cost. I believe we should have a policy of preferential treatment of Falkland Islands Status holders in the workplace but I feel that this should be restricted to all things being equal.
It is appropriate that any employer public or private should be allowed discretion when considering exposure to financial risk. If an employer wishes to appoint a person to a post who isn’t necessarily the obvious best candidate then they should be allowed to do so. Likewise, they should not be forced to appoint a person who they believe is going to harm their business.
JR: Mr Speaker, Honourable members, I support the Motion but reserve my right to speak until later.
MS: Mr Speaker, Honourable Members, I was shocked to hear towards the end of the Honourable Andrea Clausen’s presentation that she doesn’t appear to support her own motion. She said that she supports the current policy of preferential treatment. What she doesn’t appear to do is to support the administration of it and with that I have a good deal of sympathy.
The issue of positive discrimination in the Falklands is critically important and I don’t think that any of us could possibly object to the first part of the Motion. That is “that this House supports the principle of positive discrimination in favour of Falkland Islands Status Holders.” We had a discussion on that very issue in the Constitutional discussions recently and some of us around this table have had some very active discussions with the Foreign Office and others before about the rights of Falkland Islands Status Holders to have preferential treatment in a number of areas. And, the issue of ITQ, I think, is a good example – one that we argued relatively strongly recently and won against some pretty stern resistance.
When you move to the issue of employment I feel equally strongly about the policy of ensuring that Falkland Islanders are afforded positive discrimination in respect of employment.
It is, I think, a key issue to do with the development of Falkland Islanders and Falklands’ people and Falklands businesses and falklandisation of things that we haven’t necessarily been able to provide in the past.
Any assistance we can provide the Falkland Islands’ people to do that, I think, has to be encouraged. And, therefore, I think the policy of giving preferential treatment to Falkland Islands Status Holders in the workplace and everywhere else should be thoroughly and vehemently supported and will be by me.
I have some sympathy for the Honourable Member’s views about the administration of that policy in certain respects and particularly in respect of the administration of the policy for the private sector. And, it is relatively easy to administer in respect of the public sector but the way that it crosses over to the private sector is not quite so easy and I think some more thought and discussion would be much welcomed there.
But having said all of that, I do not think that is sufficient reason not to support the policy of preferential treatment of Falkland Islands Status Holders in the workplace.
And, I do not therefore support the Motion.
RS: Mr Speaker, Honourable Members, I would just like to participate in this debate and put forward my views. I think it is a very important issue and I certainly support discrimination to a degree and I think what I would like to focus on and what I have to say is that developing the mechanisms that we have in society to allow Falkland Islanders to understand how to achieve their aims in their own careers.
So, we’ve talked before about succession, training, succession paths, and how we would develop them so that people would know where they need to go and what they need to do to achieve those aims. There are possibilities where discrimination might work against the people that we are trying to help. And if we were to promote people prematurely and then, perhaps, they weren’t able to do the job and perhaps, in the longer term this would damage the very thing that we were trying to do.
Equally, it’s something of judgement where you want to promote people – someone and you might not have all the mechanisms that you would like – people might not have the training that would be available elsewhere and at some stage there has to be a judgement. And, I accept that.
I’ve got two Children in higher education at the moment and they will be returning, hopefully, to the workplace in the next few years. And, I would certainly like to see them get really good jobs. And, I would like to think that the natural forces in the workplace would come to bare on them so that they would get the jobs because they are Falkland Islands but they would also get the jobs because they wanted to be good at that job and achieve their aims – their dreams.
I support the principle of positive discrimination but I’m not quite sure that I can support this particular Motion.
JR: Mr Speaker, Honourable Members, I think it’s quite clear from what people have said, the principle of positive discrimination is something that we all agree with and, Indeed the principle of positive discrimination in the workplace. What is really up for discussion here is what people think about the current policy of positive discrimination not just how it is applied but the policy itself.
There has been quite a lot of discussion in recent times. A lot of people phoned me up, it’s the sort of thing that people talk about in the street. The fact is that the current policy doesn’t really keep very many people happy and causes a certain amount of resentment and confusion - from two angles. On the one hand there’s the employer who feels they are pressured into employing staff who they don’t think are best suited for the job. And, on the other hand, by those who feel that Falkland Islanders have been bypassed in the workplace in favour of others due to the manipulation of the policy. And, there is also a further view – quite widely held – that the policy is not evenly applied by both the public and private sector in equal measure. And, that the public sector on occasions bypasses the policy when it’s convenient to do so.
The fact is that the current policy is not really achieving what we would like it to achieve. It’s open to manipulation. We’ve seen a lot of evidence of this. The one that really comes to mind is the advert in recent years for a teacher of German and one of the requirement for this was experience in deep-sea trawling. There was actually one person in the community who fitted this and I don’t think it was a Falkland Islands Status Holder. The fact is that adverts like this can be picked up and the employers in question can be challenged and made to re-word their adverts.
But firstly they have to be spotted and secondly it does require an in-depth knowledge of wide-ranging disciplines on the part of the authorities to enable them to accurately access the objectivity of an advert and to know whether certain specifications are required for the job or not.
There is another draw-back that Councillor Clausen has mentioned and this is quite simply that if the policy is applied rigidly, FIS holders might rightly be of the view that they don’t need to meet with the best candidates for the job but only with the best Falkland Islands Status Holders.
We know that Falkland Islanders are capable enough and increasingly sufficiently trained, educated and experienced enough to satisfy a great deal of our skills requirements in the Islands. They also generally have an added advantage of being able to provide local knowledge and continuity and I think that shouldn’t be under-rated.
It is a disservice to these people as well as to the Islands as a whole, if the ability to get the best service and the highest standards is compromised due to a policy which does not encourage all applicants to be highly competitive.
I think there are a number of issues, if the motion were to go forward, that we could prove that the current policy needs re-visiting. And, there are a number of areas that I think we could take into account when we do this. And any preferential policy should certainly note it.
1. Firstly is the need to have an effective careers advisory body in the Islands
2. Secondly that in situations where an FIS Holder may not be the most competitive person for a particular job but provides evidence of the ability and skills to develop into that job at a later date the advice and guidance is provided so that the applicant is clear what skills and particular experiences might be lacking. This provides the person with the opportunity and the encouragement to develop in relevant areas.
There is a practice and I don’t know whether it’s got a legal basis, but generally a standard letter to someone who has applied for a job and doesn’t get it is, “I regret to say, on this occasion, your application was unsuccessful.” This doesn’t tell the person who is applying for the job anything about why they did not get it, what they might be lacking in terms of experience or skills – whatever it is.I think it is important for us to be able to incorporate within the policy at least have the view and actively pursue it that those Falkland Islanders who quite clearly are moving successfully in a certain path and in a certain career should be given the right guidance and the right encouragement. We’ve had situations recently where some guidance in this matter would allow that person to progress to very top positions here in the Islands. We really need to do something more active about it.
3. That the immigration policy provides for a system of skills and jobs analysis in the Islands which will allow the authorities to balance skills shortages against fluctuations in the labour market. And, this essentially means that at times when unemployment is identified as occurring work permits may be restricted despite identified skills shortages. Quite simply, if you perceive that there is a growing problem of unemployment in the Islands, it doesn’t seem likely at the moment but if that should happen, even if there are identified skills shortages, which you would want to take or import from abroad we would really have to look at that and see what you could do within your current labour market to fill those skills shortages.
4. That FIG specifies that job specifications stipulate adequate minimum requirements for the job to be done well and actively avoid over-rating skills and experience, which are not relevant. And, really what I mean by this is that when young people very often have to start fairly lower scales and they hope to move their way upwards, if those jobs at the lower end are being advertised and requiring skills that are beyond the young person then quite clearly that young person is always going to feel at a disadvantage to someone that is already doing that job for many years. We must be careful when advertising jobs that you are not demanding of the applicants more than is actually necessary and that people who are more qualified than the job requires should not necessarily be seen as having a preferential – being in a preferential situation with regard to that job. At the end, what matters is they fit the job specification – not that they have more than what the job requires.
In considering all angles, I do obviously support the Motion. I would like the current policy to be re-visited and I would like to have further discussions on how we might achieve this.
Thank You.
IH: Mr Speaker, Honourable Members, it’s become very obvious from the addresses or what my colleagues have said that this is a far more complex issue than actually the Motion suggests as written down. And, I think to avoid being repetitive, Councillor Stevens mentioned a few things I definitely would support as well as Councillor Summers.
I take Councillor Robertson’s point of it is a wider issue and perhaps we should be concentrating on the policy and how it works.
But to be brief, Mr Speaker, as the Motion stands, I cannot support it.
RC: Mr Speaker, Honourable members, I, too, am confused. The Motion says that we do not support the current policy of preferential treatment of Falkland Islands Status Holders in the workplace. And, the Honourable Janet Robertson has herself recommended that we re-visit the policy. That is a very different issue than not supporting the policy. And, I think because of that I believe, yes, we should re-visit. I think that we should look at the application of the policy and clarify it both for the benefit of the private sector and for the public sector. But the way the motion is proposed, I cannot support it.
JB: Mr Speaker, Honourable Members, I will be very brief. It seems simple to me that on the one hand of course we must push forward with the opportunities for Falkland Islands Status Holders. Of that there is no doubt. But my own experience tells me that sometimes you have to make a decision as an employer and it isn’t always that easy but sometimes you do have to make a difficult decision and justify that to the Immigration Department. Eventually there comes a judgment. I do not support this motion but I also think that we should re-visit the current policy. And, the new, proposed skill board, I might add, I really hope it won’t be too top-heavy with members of the Civil Service. The private sector is a large and ever-growing part of the Falkland Islands economy. I wouldn’t like to see the day coming when an employer was having his case heard by a group of civil servants all the bowler hats agreed but nonetheless don’t have any experience outside of Government.
And, I repeat. I do not support this Motion.
MR: Mr Speaker, Honourable Members, I think the Honourable John Birmingham’s sentiments that I was going to make as a former, fairly large employer and I have always found that the item that seems to be missing from this conversation is, who’s the best person for the job? And, that, I think, is what the employer is looking for – the best person for the job, whether they be a Falkland Islands Status Holder or not. That’s the natural inclination and, I think one’s personal view is that you get the best person in fact, you try to get someone better than the job specification that you are looking for because you would be looking in the long term to that person developing.
This is the practical side of it that we tend to overlook the broad principles. Whether that person is a Falkland Islands Status Holder or not is, unfortunately for the employer, of secondary importance. All we can hope in all this is that if Falkland Islands status holders can see that they are competing for the job because they have the skills to carry out the job rather than the fact that they are a Falkland Islands Status Holder – if that can be achieved – then I think we are getting somewhere.
And, I’m not sure, in lots of cases, whether we are actually doing that. I think the message needs to be fairly clear that we do need Falkland Islands Status Holders to strive to fulfil all the requirements that are required of senior positions in particular, rather than someone who might or might not do, sit on their laurels and assume they are going to get the job anyway.
And I think that is not the way we want to go. So, I support the Motion.
AC: Mr Speaker, Honourable Members, firstly I would like to thank everybody for enabling me to bring this relatively sensitive subject to the floor of the house for discussion. That’s actually the main aim of my motion. And, it won’t surprise you at all it took me ages to come up with the words which have, nonetheless, resulted in some significant confusion.
I am not terribly concerned about that, actually because the aim is to have the debate and listening to what everybody has said today, in actual fact, I think my aim might well be achieved, which is that we all support the principle of positive discrimination in favour of Falkland Islands Status holders and we all support a policy of preferential treatment of Falkland Islands Status Holders in the workplace but not necessarily the current one.
Or, we need to think about ways of administering the current one better. And, that gives me some hope because actually that’s what I would like to see us do next – is to talk some more about that.
There has already been a paper gone to Executive Council which has gone to the public for consultation. I, myself, have been contacted a number of times. I don’t know if other Members have but it is a large subject and I hope that we can take it forward and try and – if nothing else – better administer our current policy.
I don’t think I’ll add any more than that. Sir, I support the motion.
The motion failed by 5 votes to 3 Votes.
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