The Caswell Franklyn Column – Widespread Misinterpretation of Employment Rights Act
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.