[Originally published in the Vanuatu Daily Post’s Weekender Edition.]

There is only one thing worse than a badly played football match: a badly refereed match.

What makes a bad referee? Players the world over agree that it’s not strictness or laxity; what makes a referee really bad is when he’s inconsistent and unpredictable. The ref consistently calls offsides in favour of the defence? Not great for the strikers, but a team can adjust and try different approaches to the net. The ref calls them consistently in favour of the offence? Drop the zone defence and mark your man carefully.

But when neither team knows how the play will be called, it creates uncertainty, which leads to sloppy play and sometimes a little opportunistic cheating, hoping that this time the ref won’t call a questionable play.

This principle applies everywhere. In numerous business surveys, company leaders consistently report that continuity and predictability in economic management and government affairs matter more to them than the economic structures themselves.

As long as clear rules exist around ownership, trade and the economic environment in general, a well-run company will be able to find its way – and possibly to thrive – under just about any regime.

But a company that can’t predict what will happen tomorrow can’t plan effectively. And a company that can’t plan finds itself scrambling from one day to the next. It finds that it can’t commit – neither to its customers nor to its staff. When this uncertainty becomes generalised, with nobody willing or able to say what tomorrow holds, the business climate worsens all round.

The government of Vanuatu has made great strides in recent years in its efforts to make its bureaucratic components simpler and more predictable for all concerned. The primary purpose of this is to insulate the civil service from the innate turbulence of Vanuatu politics. By carefully channeling initiatives through straightforward but rigourous processes, the worst weaknesses of government instability are compensated for.

The days are long past when political infighting could result in the failure to table a budget, as happened under then-Prime Minister Barak Sope.

These reforms are invaluable, but not sufficient. The process of creating new laws and regulations requires the same kind of predictability and respect of process. Currently, there is next to none.

To be clear: The State Law Office generally does excellent work in drafting legislation. With a few notable exceptions, Vanuatu’s laws in recent years have been clearly scoped, defined and written. But State Law’s influence is limited to ensuring the legality and clarity of the bills they draft. They have no say at all over their contents.

What a Bill actually contains is entirely up to the Cabinet members and their staff.

So how, exactly, did the recent amendments to the Employment Act come about? To the best of my knowledge, there was little if any consultation with business, unions, civil society organisations or the general public. Whatever actually transpired, the near-panic expressed by a number of prominent business owners demonstrates that they were singularly unprepared for the Amendments’ passage in Parliament.

Contrast that with the policy and legislative review conducted by the Ministry of Infrastructure and Public Utilities. For years now, they’ve been talking, thinking, researching and sharing their views with anyone interested. Policy papers and proposed legislation are made available months before they enter Parliament. By the time a Bill arrives on the Order Table, people know exactly what’s in it, and what motivated the choices made.

Not every stakeholder agrees with every aspect of what gets enacted. But at least they know what to expect. The player doesn’t have to like the call, but she needs to respect the referee.

In any given election, about half of all elected MPs are new to Parliament. Efforts are underway to educate them in Parliamentary process and the roles and responsibilities of Members and Ministers. But we need more.

The real battle behind the Amendments to the Employment Act is not over their constitutionality. Nor has it to do with the Minister’s prerogative – and responsibility – to legislate matters of employment rights. It’s not the Minister’s responsibility to make everyone like what the Act contains.

The shock of latest amendments has done nothing but create uncertainty. They undermined confidence across the board. Businesses are increasingly tempted to perform an end-run around the rules, to sack their fulltime employees and require them to return as short-term independent contractors.

This means that such workers will get no severance at all. Worse, benefits like VNPF contributions become the employee’s responsibility. This will almost certainly undermine the Provident Fund. There will doubtless be other negative consequences as well. In short, the Minister’s unquestionably good intentions are being subverted by the lack of due process and consideration.

It is up to the Minister and the Government to ensure that Vanuatu’s market place is ruled fairly, clearly and consistently, according to rules that we may not all like, but we all agree to respect. The only way to achieve this is to create a clear, well-trodden path down which every piece of policy and legislation must travel before it becomes law.