Response to the question "Can we change anything on the compact for our employees not only at Kwaj but also around the Marshalls?"
SPECIAL NOTE: The USAKA Ombudsman Office is organizing a town-hall meeting for Saturday, November 2nd at Ebeye.
Response from the Compact Negotiation Office
Republic of the Marshall Islands
October 29, 2002
There are several sections in the existing Compact that effect Marshallese workers directly or indirectly at USAKA. The key provisions are:
1. Section 171 of the Compact provides that except as provided in the Compact or its related agreements, U.S. laws that applied by virtue of the Trusteeship Agreement, cease to apply as of the effective date of the Compact.
2. Article VIII â€œEmployment of Laborâ€ MUORA provides (1) that U.S. Contractors will comply with â€œlaws of general applicability in the Marshall Islands regarding minimum wagesâ€¦â€ (adopts RMI minimum wage law); (2) provides for â€œequal pay for equal workâ€ in respect to employment of local hire personnel; (3) â€œgrandfathersâ€ Marshallese workers hired before the effective date of the Compact when U.S. minimum wage laws applied; (4) provides for consultation with the RMI Government in respect to training of Marshallese workers and greater utilization of the Marshallese work force.
3. Article IV â€Utilization of Contractors and Employment of Laborâ€ , SOFA provides (1) that a preference be given to citizens of the RMI and FSM in respect to employment provided that they possess the requisite skills; (2) U.S. and RMI contractors are to be utilized on an equal and non-discriminatory basis consistent with U.S. law and regulations; (3) U.S. is to notify RMI Government and consult, if requested prior to hiring third country personnel or engaging third country contractors; (4) laws and regulations of the RMI shall not apply to U.S. personnel, Armed Forces personnel; or third country personnel with respect terms of employment, licensing, permits, etc.; (5) in respect to local hire personnel employed by U.S. contractors, the U.S. will adopt measures consistent with the standards of local labor laws to the extent they are compatible with the laws, regulations, and operational requirements of the U.S.
4. Article XIV â€œRespect for Local Lawâ€ SOFA provides that the U.S. shall adopt and enforce measures consistent with the Compact in order that U.S. personnel, contractors, and third country personnel respect the laws of the RMI and refrain from any activity inconsistent with the SOFA and further refrain from engaging in political activity.
Historically, a dispute arose in the early years of the Compact with respect to the cessation of U.S. minimum wage laws for Marshallese workers at Kwajalein and the meaning of â€œequal pay for equal workâ€ in the MUORA. Although it is clear that U.S. minimum wage laws no longer apply, the meaning of â€œequal pay for equal workâ€ was never satisfactorily resolved. The RMI position was that it constituted a protection for Marshallese workers so that if they were doing the same work as U.S. or third country personnel with the same qualifications, the pay would be equal. The U.S. took a narrower interpretation of the provision that it applied only within the category of non-grandfathered local hire personnel. As this appears to be an ongoing issue, it should be addressed in the current round of negotiations. The RMI will therefore need to develop a policy and position in respect to this issue in consultation with the Marshallese workforce at USAKA.
We will need more information regarding the nature and extent of the problems being experienced by the Marshallese workers if we are to fashion proposed amendments to deal with these issues. One mechanism commonly employed in other U.S. MUORA/SOFAâ€™s is a Labor Relations Board with joint U.S. and local membership. The RMI has already included this concept in its 8-point proposal for the extension of the current MUORA/SOFA. A Joint Labor Relations Board at Kwajalein could focus on issues regarding the Marshallese workforce at Kwajalein, training opportunities, conditions of employment, and the relationship of the Marshallese workforce at Kwajalein to other workers. The RMI Compact negotiators are hopeful of receiving an initial response from the U.S. this week on the concept of a Joint Labor Relations Board when we discuss the RMI proposal.
One common misconception, however, regarding employment conditions at Kwajalein is the meaning and application of the RMI minimum wage law. The RMI minimum wage law is just that: a minimum, or â€œfloorâ€ that is applicable in Kwajalein as it is in the rest of the RMI. It does not preclude payment of higher wages or application of higher wage scales generally. Other than providing a very basic framework, the Compact and the RMI minimum wage will not determine wages paid to the Marshallese workforce at Kwajalein. In the end, wages and benefits paid to the Marshallese workforce will depend on many factors such as the skill levels and performance of Marshallese workers; the budgets of the logistical contractor; the relative costs of hiring Marshallese compared to bringing in outside workers; and the overall availability of skilled and unskilled labor in the RMI.
The role of the RMI government is to create a basic framework where these factors can be applied fairly to the Marshallese workforce; to prevent discrimination against Marshallese who are equally qualified and performing the same work at the same level as non-Marshallese; and to ensure that in the event of problems, a fair and appropriate opportunity to seek redress is provided to Marshallese workers.
The issues surrounding the â€œgrandfatheredâ€ group of Marshallese employees at Kwajalein who continue to be paid on a pay scale based on U.S. minimum wages require some historical perspective. This situation goes back to the negotiation and implementation of the Compact over 17 years ago. Before the Compact came into effect, U.S. minimum wage law applied to Marshallese workers at Kwajalein under certain U.S. domestic legislation. The reason for this had little to do with the Marshallese and more to do with protecting Americans at that time, but the important thing to remember is that the U.S. minimum wage law ceased to apply when the Compact came into effect, and in its place the minimum wage laws of the RMI applied. Thus, the purpose of the â€œgrandfatheringâ€ provisions in the Compact as negotiated was to prevent U.S. logistical contractors from changing the wages of Marshallese who were employed at the time of the effective date of the Compact.
Finally, the RMI Compact team will definitely meet with the Marshallese workforce at USAKA to discuss these issues in light of the window of opportunity that exists with regarding amendments to the MUORA/SOFA and opportunities for Marshallese workers with the new logistics contractor at Kwajalein. The USAKA Ombudsman Office is organizing a town-hall meeting for Saturday, November 2nd at Ebeye.
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