The Caswell Franklyn Column – Widespread Misinterpretation of Employment Rights Act
Caswell Franklyn, General Secretary of Unity Workers Union
On Tuesday, May 16, 2017 the Daily Nation published a story headlined, CONTRACT ROW, where it was reported that workers, from a construction company, called in their union to deal with a matter concerning changes to their contract. Also, on May 12th the Barbados Today reported that the Minister of Labour, Dr. Esther Byer-Suckoo, told Barbadian employers to put their houses in order, as it relates to the Employment Rights Act (ERA), before they complain.
At first blush, it would appear that these stories are unconnected. Sadly, they are inextricably bound up since both sprang from widespread misinterpretation and or misunderstanding of some provisions of the ERA. As best I can, I would like to clarify some of the problem areas.
Dr. Byer-Suckoo is reported to have said:
What we have realised is that what is set out in the legislation has not in many instances been adhered to. So where the legislation speaks to having disciplinary procedures articulated and it also speaks to having a statement of particulars for the workers, a lot of this has not been done by many persons.
Even though the Minister’s position is desirable, the ERA does not contain any provisions that mandate employers to have written job descriptions for all workers. Mind you, the Minister is not alone in her misinterpretation of the ERA. Many industrial relations consultants and human resource specialists have made a financial killing drafting job descriptions to bring unsuspecting employers into compliance with provisions of the ERA that do not exist.
As currently drafted, section 13.(1) of the ERA could not possibly mean that all employers are required to provide written job descriptions for all employees. It states:
Where a contract of employment is contemplated, the employer shall, prior to or forthwith upon the commencement of the contract, give the employee a written statement of the particulars of the employment.
There is simply no way, barring time travel, that an employer can give an existing employee a statement of employment particulars before the start of his contract. This section can only apply to new recruits or existing employees who are being promoted.
Without knowing more than what is reported in the Daily Nation, it would appear that the construction company was attempting to comply with the erroneous interpretation of the ERA. Those workers must be applauded for setting the example for other workers in similar situations. Rather than blindly sign new contracts, they sought guidance from their union. I am aware that in many other cases, when employers reduced the job descriptions of existing workers to writing, they sneaked in new duties to the detriment of the workers.
In the Barbados Today article, it was also reported that the Executive Director of the Barbados Employers Confederation highlighted two sections that were open to various interpretations. He claimed that section 10 which provides for a person to appear before the Tribunal with “any other person whom he desires to represent him” was often “grossly misinterpreted“, with individuals turning up with lawyers.
I will not attempt to argue the point. Quoting section 10 would suffice to make my case. It states:
A person may appear before the Tribunal in person or may be represented by
(a) legal counsel;
(b) a representative of a trade union or an employer’s association; or
(c) any other person whom he desires to represent him.
All along I thought that legal counsel meant lawyer but I am still learning.
The Executive Director then set his sights on section 26 (b) claiming that it needed to be clarified. That section makes it unfair to dismiss a worker, who is employed on a fixed term contract, if the contract expires and it is not renewed under the same contract, unless certain fair procedures are observed.
Prior to the passage of the ERA, a worker would qualify for severance pay if he had been employed on a fixed term contract and his services were terminated after 104 weeks. It was common for employers to dismiss employees after working 103 weeks, thereby depriving them of severance payments. Section 26 (b) was intended to remedy that abuse.
The original Employment Rights Bill was watered down after objections from employers. It now seems that employers are seeking to get back to the bad old days when workers had no rights.
Barbados Underground 
Good article Caswell very easy to follow. The rights of workers are being attacked and eroded daily and the prevailing economic climate makes it easy so to do.
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Thanks David. I try
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The FACT is that workers have no real ‘rights’ …as Caswell knows.
‘Workers’ are no more than glorified serfs who are ’employed’ by profit focused employers to help them to get richer. We therefore have an environment where most ‘workers’ seek to do as little as is possible, while most employers seek to extract as much from them as is possible.
Depending on your perspective, either the worker is being exploited …or the employer is being exploited …. or perhaps both are being exploited by the government.
It is a fundamentally flawed system and it results from a lack of national vision that sees the enfranchisement of all citizens as a human and a national right.
Businesses should – AS A MATTER OF NATIONAL POLICY, – be structured such that all employees, by dint of their labour and other inputs, increasingly become meaningful shareholders in ANY business in which they are employed.
The vision should no longer be one of refining a Serfdom, but one of building an empowered society …where everyman is BOTH an employer AND an employee – with no need for people like Caswell…..who should be pursuing more substantial NATIONAL challenges such as BUP …. any damn how
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Another huge problem in Barbados, everyone has a different interpretation of laws, rules, regulations etc….just as if english is not their first language…everything is misinterpreted and unreasonably so.
Is the problem comprehension or small mindedness.
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…it was also reported that the Executive Director of the Barbados Employers Confederation highlighted two sections that were open to various interpretations. He claimed that section 10 which provides for a person to appear before the Tribunal with “any other person whom he desires to represent him” was often “grossly misinterpreted“, with individuals turning up with lawyers.
@ Caswell, I am not sure that the Executive Director was referring to section 10 as you suggest. I was under the impression that he was referring to Step 2 of the Standard Disciplinary Procedures under the Fourth Schedule where paragraph 2 (2) makes provision for the employee to be informed of his right to have a friend or shop steward present before the disciplinary meeting may be held.
His beef is that some employees have been bringing a lawyer as that “friend”.
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Here is the article:
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My sincere apologies, Caswell. You were correct. I simply did not believe that such a gross misreading of the plain words of the provision could have been done by Mr Walcott. Unless he was misquoted, it is, to use a favorite expression of mine,comparable to a clock striking thirteen at noon! You are likely wonder if it was ever right all morning or at all.
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Jeff
That is probably what he meant, I don’t know, but he is quoted in the article referring to section 10.
Even if he meant that, how would it be fair for the employer to have legal counsel available to them at the disciplinary hearing? I have had two instances where employees turned up for disciplinary hearings unaccompanied only to be confronted by a lawyer.
Mind you, in all fairness to the lawyer, he insisted on an adjournment so the workers could be represented. (Same lawyer in both cases but two different employers).
Also, I should be complaining as well. On several occasions meetings were adjourned because the employer did not have a lawyer when I appear to represent workers. I am not a lawyer and do not hold out myself as such.
Sent from my iPad
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Jeff
There is no need to apologise. I had your same reaction and had to double check.
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Not only that, Caswell. The word “friend” does not expressly exclude lawyers and the whole matter of termination is now juridified anyway. The employers or some of them want to retain the old managerial prerogative to dismiss how and when they like, but their actions in that regard are now subject to close legal regulation under the ERA.
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Jeff
It worse than you think. Even when employers purport to follow the procedures set out in the Standard Disciplinary Procedures, they hear the case and then want to preside at the appeal.
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Incroyable! (Unbelievable!)
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@ Caswell
A very thoughtful and clearly articulated article. Essential that you keep clarifying and educating.
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1) With regards to “written statement of the particulars of the employment” one of my contracts had this statement: “Assist management on special tasks on an ad-hoc basis”. Another contract had this statement “Any other duties assigned to you by management from time to time”. This meant that along with the written duties of your job, management can pull you here and there to do this and that as they seemed fit? 2) Employers said that with this new ERA, employees have too much rights. So in that regard some good has come from the new Act. 3) It’s a new Act, there will be confusion in the beginning.
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No Kevin, your cuhdere mentality will not cut it. The length of time this bill and bouncing around to stakeholders in draft should have been enough time to filter many of the problems being experienced. A characteristic of excellence is getting it right the first time more oft than not. Too many errors made by this Government when it comes to implementing anything.
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@David, the new ERA has been BETTER for employees……… Even if parts are vague, it has been better.
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@Kevin
Would the NCC workers agree with you?
Have the Mol and key stakeholders agree that the Bill needs to be amended?
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Yes David, they would agree with me. They did not had a tribunal before and the tribunal is a great asset for the employees. Many rulings have been found in favour of the employees.
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The ERA is far better than what obtained prior to its coming into force. It had a very long gestation period, in excess of fifteen years when it was being discussed with stakeholders. The problem with the ERA is that it was opposed from the outset by both the Barbados Workers’ Union and the Barbados Employers Confederation.
BWU was fearful that the ERA would diminish their power and put stumbling blocks in the way. On the other hand, the employers confederation preferred things as they were and found fault with anything progressive about the ERA.
The present administration must be given some credit, they had enough of the delaying tactics from both the BWU and BEC and put something on the books. Is it perfect? NO! But it is far better than what we had.
Is there a need for some amendments? Yes! But not the ones being proposed by the unconscionable employers.
Do we need to gag Dr. Byer Suckoo? Yes, by all means! She speaks without first obtaining the relevant knowledge.
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@Caswell
Why would employees agree IF they have to wait inordinately long for their cases to be heard IF at all?
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Food for thought….thanks Caswell et al
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Good on you Caswell! @ Kevin, these are funny times – The tribunal hearings and administration is set up by Government – Not anymore Sir.
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