The Caswell Franklyn Column – Government Making Law by Stealth
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 But in a poorly drafted amendment the definition of “complaint” was repealed and replaced.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.