The Caswell Franklyn Column – Offshore Companies Breaching Employment Laws with Impunity
Recently, a father handed me an employment contract, that was issued to his young daughter by an offshore company operating in Barbados, and asked if there was anything I could do.
I read the document and was horrified when I realised that this is the same company whose praises were being sung by a minister of government. I am left to wonder if Government is aware of the appalling terms and conditions under which its people suffer at the hands of expatriate employers.
The investors of this company, like so many others, have been encouraged by Government to set up here, in order to bring in much needed foreign exchange and to provide jobs. But after reading the contract I am angry since it seems that Government is prostituting its people to get foreign exchange.
Government’s primary duty is to protect its citizen, which not only include providing a safe environment from the gun-toting criminals, (and they are doing a poor job in that regard) but of necessity that duty must extend to protecting the vulnerable from exploitation. It will not suffice just to put laws in place and thereafter make little or no provisions to ensure that those law are being enforced.
This young lady was offered an administrative position for the measly wage of $65, which is equivalent to 2,082 Indian rupees per day. The contract explicitly states, among other things that:
The employee is an independent contractor responsible for her own National Insurance contributions at the self employed rate; she is required to be on the job from 9:00 a.m. to 5:00 p.m. Monday to Friday and 9:00 a.m to 1:00 p.m. on Saturdays; she is required to work overtime and “shall not be entitled to additional remuneration for such additional hours”.
Also as far as I can discern, the employee is subject to the company’s policies, procedures, rules and regulations but the contract goes on to say that the employee “shall not be the servant and/or employee and/or agent” of the employer.
No one in his/her right mind would believe that a person, who is employed under such terms and conditions, is self employed. Under the National Insurance legislation, only the NIS Board, and not some scallywag foreign investor, is empowered to determine who pays contributions at the self employed rate.
Further and more recently, the First Schedule of the Employment Rights Act sets out a number of factors to determine if a person is an employee or an independent contractor. That piece of legislation was completely ignored in the drafting of the contract.
Exploitation of workers is rife in Barbados, even where Government is the employer and it would appear that foreign investors have taken their cue from Government’s lead. By way of example, on August 2, 2017 Sir Roy Trotman complained in the Senate that the Barbados Revenue Authority (BRA) was depriving workers of their pensions. He is correct in so far as retiring employees of BRA are being denied the rightful amount their pensions and gratuities.
In accordance with subsection 10.(1) of the Barbados Revenue Authority Act, officers, who were seconded from central government to the authority, were guaranteed that their service with BRA would count toward their public service pensions, as if the officer had not been so seconded. As I understand it, this provision is being misinterpreted to say that the service with BRA counts toward the pension but not the salary received during the period of secondment.
Subsection 10.(2) then provides that those “public officers shall be employed on terms and conditions that are no less favourable than those enjoyed by a public officer of proximate rank…” To my mind, subsection 10.(2) is absolutely clear and there is really no need for this confusion.
One of the terms of public service employment is that an officer’s pension is based on the salary for last thirty-six months of that officer’s service. Since the persons who transitioned to BRA are employed under no less favourable terms, this matter is really a “no brainer”. My advice to Government is to stop the exploitation; do the decent thing and pay the people their just dessert.