The Caswell Franklyn Column – Government Making Law by Stealth

Caswell Franklyn, General Secretary of Unity Workers Union

Relatively early in its tenure as the Government of this country, the present Democratic Labour Party administration defied both the labour movement and the employers’ lobby and passed into law a revolutionary piece of legislation, in the form of the 2012 Employment Rights Act (ERA). Its provisions gave the impression that Government was serious about the welfare of workers.

Sadly, that was only the impression. Despite these new found rights, workers continue to endure abuse, at the hands of employers, mainly because Government seems committed only to lip service in the protection of workers rights. It has failed miserably to put adequate structures in place so that workers can access their rights in a timely manner. At the same time, this administration is falling over backward to accommodate every unreasonable whim and fancy of employers.

You may recall that on May 21, 2017 this column drew attention to the Barbados Employers’ Confederation’s concern that individuals were opting for lawyers to represent them before the Employment Rights Tribunal. Mind you, the employers’ representative seemed not to be aware that Government had already moved to disadvantage workers, by quietly and compliantly amending the ERA to facilitate the employers’ wishes.

The original version of the ERA required employees, who believed that there was a dispute concerning an infringement of any rights conferred by the ERA, to make a complaint to the Chief Labour Officer. Section 2 of the original version of the Act stated:

“complaint” means a complaint made to the Tribunal under this Act by way of the Chief Labour Officer.

So, in accordance with that definition the employee or anyone, including lawyers, who believe themselves to be competent could have referred a complaint to the Chief Labour Officer. But in a poorly drafted amendment the definition of “complaint” was repealed and replaced. The new amendment states:

Section 2 is amended by deleting the definition of “complaint” and substituting the following:

“complaint” means a complaint made to the Tribunal by an employee, by way of the Chief Labour Officer or by a trade union as the case may be.

That amendment did not achieve the employers’ goal of excluding lawyers from representing workers before the tribunal. All that it will do would be to force a lawyer to draft a complaint for the employee’s signature. Thereafter, in accordance with section 10 of the ERA, an employee may be represented by legal counsel.

This simple amendment has potential to wreak havoc among persons who opt to be represented by lawyers because of the apparent secrecy employed while making the amendments to the ERA. Let’s say that an employee engaged the services of a lawyer to make a complaint; the lawyer happened to file the complaint just before the three-month deadline for filing; that deadline expired; and the lawyer then received a reply from the Chief Labour officer stating that the complaint was not properly before him, since it was not filed in accordance with this secretive amendment.

When I discovered that there were amendments to the ERA, I asked several persons, including lawyers, if they were aware of the amendments. In every case, I received a resounding “NO”. As far as I am concerned no one could blame a lawyer if he missed the amendments to the ERA. They were done quietly and in the most unconventional way. The amendments to the Employment Rights Act were contained in a schedule to the new Holidays with Pay Act that was brought into force on February 2, 2017, believe it or not!

The next general elections are constitutionally due next year. This is the only time that workers have any real power over the politicians. While I will not suggest to any worker who he or she should vote for, I believe that it is time for workers to exercise some enlightened self interest and cast their votes for the party that has a programme to fix the myriad problems with the labour legislation of this country.

21 thoughts on “The Caswell Franklyn Column – Government Making Law by Stealth

  1. Based on the revelation in this article should it not force serious collaboration to inform action by the unions? All of them!

  2. I must confess that I was also unaware of any amending legislation…and I teach a course in Emplyment Law.

  3. I continue to ask people who are involved in Industrial Relations and Labour Law if they know of the amendment to the ERA, and it was only on Friday (after the column was submitted) that I asked an industrial relations officer from the Barbados Employers’ Confederation who actually knew.

    • Is there a role for media to play in disseminating matters to be debated in parliament? Suspect the general public could care less. What did the unions, social partnership,BPSA, CTUSAB and other NGOs do to broadcast the change. Not to forget the MPs!

      Often time the notification to change laws and related are circulated to stakeholders as if some private affair.

    • There is a role for all the mentioned stakeholders to play. But to be fair to them, Government hid these amendments for reasons best known to themselves.

      As far as I know the employers did not want lawyers to represent workers because they wanted to continue to abuse their workers’ rights unchallenged for the most part. Also, the labour officers supported the move to exclude lawyers so that they would not have to continue to deal with matters where the Chairman of the Employment Rights Tribunal would be the one who originated the complaint. I advised them not to entertain him but the Public Service is now completely political and they might end up on the outside looking in.

      Sent from my iPad

    • Jeff

      I forwarded the soft copy to David. He should make it available in due course.

      Sent from my iPad

  4. Caswell
    As I understand it,all laws,amendments to laws etc must be published in the Official Gazette.I always made sure I contributed to that source for that reason alone.

    • Gabriel

      You are correct, the amendments were published in the Official Gazette. That is not the problem. This wicked administration did its best to hide the amendments to the Employment Rights Act, by putting amendments to that act as a schedule to the Holidays with Pay Act. No one would be looking for that. It would seem that there was a deliberate attempt to disadvantage workers and hiding it from them.

      By the way, I read that the Minister of Labour made some remark about raising NIS contributions because the NIS fund is paying out too much in relation to what is coming in. I would suggest that she whisper in the ear of the Minister of Health and ask him to ensure that the QEH pays in the $50 million owed to NIS.

      Sent from my iPad

  5. The QEH ought to be in a position to pay owing to the statements made by the eminent minister of Finance on the floor of the House last year when he laid down the law in accordance with the first 2% NRSL levy which was supposed to fund the QEH.Lest we forget the effing lies,the effing deceit and the effing sleight of hand methods of this government.

  6. Caswell how come you are not participating in the March with the other major unions? The picture in the Barbados Today shows BWU, BUT, NUPW and the BWU.


    • Caswell how come you are not participating in the March with the other major unions? The picture in the Barbados Today shows BWU, BUT, NUPW and the BWU


      Cockroach has no right at fowl cock party.

      Sent from my iPad


  7. A march that serves no purpose and achieves nothing,the NSRL as is or amended will not help our country…… Caswell is right to stay clear of it….now if they carried a letter demanding elections be called or they will take further action….that one will get my support.

  8. The High Court matter involving DC vs the PM re the Hyatt monstrosity at Bay Street should be down for hearing today as I recall.

  9. “This matter is going to take some time to do. This matter will not go right to trial like that, there is a lot still to be done. They have to do discovery of documents and answer questions so there are a number of steps to be taken.”

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