The Jeff Cumberbatch Column – A Missed Opportunity for Reform
It is at least ironic that in debate last week on an amendment to the Employment Rights Act 2012 [ERA], the Honourable Minister of Labour, Mr Colin Jordan, should have excoriated some employers for treating their workers as self-employed in order to avoid responsibility for paying national security [NIS] contributions on their behalf and others for failing to recognize the trade union as the bargaining agent for their employees.
I write “ironic” because unlike many of our regional neighbours, Barbados has elected up to now not to place these matters effectively in the realm of legislation, where they would acquire some degree of notoriety and thus serve as cautionary tales or teaching lessons to local employers generally. Yet, there were our legislators in the process of debating an employment rights amendment bill, the most appropriate locus for these matters and enacting other provisions.
This is, of course, not to deny that the matter under immediate debate then was not of some importance itself. If the Employment Rights Tribunal, the body charged with the vindication of the rights of employees created under that Act and now having assumed subsequently added responsibilities in the areas of sexual harassment at work and holidays with pay, is to be fully competent to adjudicate the provisions of the Act; to award the possible substantial sums that may be ordered in some cases; and to enforce adherence to these awards, then the members must assume their roles with some degree of gravity.
The debated amendment will now require them to swear before the Governor General as follows-
I, …, do solemnly, sincerely and truly declare and affirm that I will faithfully and impartially fulfil the duties as a member of the Employment Rights Tribunal to the best of my ability in accordance with the provisions of the Employment Rights Act, 2012 (Act 2012-9). [Original emphasis]
The two issues raised by the Minister are, however, equally important to the rights of local employees themselves and arguably might have formed part of a comprehensive amendment of the ERA itself. After all, ever since its enactment, employer, employee and scholarly interests alike have identified matters concerning its provisions, apart from those mentioned in Parliament, which could aptly be the subject of amendment or reform.
Some of these are better suited to discussion in a technical study of the Act, but they bear mention, if not full analysis, here. For instance, the previous Minister had appeared to suffer some measure of understandable confusion as to the distinction between the ERA’s requirement in section 13 of the provision by employers to employees of a written statement of particulars and the desideratum of furnishing each employee with a written contract containing the terms and conditions of his or her employment. While case law has confirmed the difference between the two, the Caribbean Court of Justice, in a recent appeal from Dominica, favourably compared the latter requirement that is clearly more beneficial to the employee. It contrasted the legislation in Dominica that requires the provision of a contract of employment-
“The Labour Contracts Act would have been hailed at the time of its passing, in 1983, as a progressive piece of legislation and, as will shortly be seen, it took a radical step in protecting employees’ rights. Its short title identifies it as an Act to make provisions whereby every employer is required to provide each employee within its application (operation?)with a written contract specifying certain particulars of his employment. Its purpose also included providing the contents of a basic labour contract. The basic approach of the Act is to provide that within 14 days of employing an employee, an employer must provide to the employee a written contract containing the basic terms on which s/he was employed; that if the employer failed to do this he committed an offence; and that to correct that failure the Act imposed upon the parties a basic labour contract, in the terms set out in the schedule to the Labour Contracts Act.” –
with that of the English provision that we seemed to have copied-
“In England, the employer was required to provide within two months of the commencement of employment, a written statement of specified terms but not a contract. As the updated legislation provides, if the employer failed to give this statement or it omitted the specified terms, the remedy the law provided was for the employee to complain to an employment tribunal to determine what particulars ought to be included in such a statement…”
According to Barrow JCCJ-
“This very brief comparison is enough to bring home the realization that the Labour Contracts Act dared to do what the English legislation refrained from doing, which was to interfere with the hallowed English law concept of freedom of contract …”
Moreover, the local ERA has caused a theoretical confusion by its attempt to create a new form of wrongful dismissal upon the already existing common law concept; and the role of the Labour Office might also be reconsidered as a form of enhanced conciliation whereby parties may be advised if their claims have any chance of success at the tribunal hearing. This would not prohibit them from at all pursuing the matter, but it would be at their own risk of being liable for the costs of any unsuccessful hearing before the ERT.
So far as the two points specifically referred to are concerned, the first as to the nature of the employment has been legislated on to some extent; although the ultimate determination of whether the employee works under a contract of service [in which case NIS contributions would be payable on his or her behalf] or a contract for services [in which case they would be payable by the employee himself or herself ] has been expressly left to the courts. On this basis, in order for the treatment of the employee as employed under a contract for services to be legally impugned, the matter would have to be litigated under our law. The First Schedule to the ERA provides, after a catalogue of those indicia that might indicate employment under a contract of service-
Note: This list is not exhaustive, and the factors outlined are all elements in a balancing exercise to determine the nature of the contract. No one factor, therefore, is by itself conclusive, and the weight to be attached to any one of the factors is a matter for adjudication. [Emphasis mine]
With respect, simply asking employers “to cease and desist from that bad anti-worker practice” is not the way to arrest it; nothing short of a class action suit or condign legislation may suffice.
With regard to the second, Barbados has, for some unstated reason, elected not to enact legislation providing for the compulsory recognition of workers’ organizations as have many of the other jurisdictions of the region, preferring instead to rely on what is called custom and practice as if we existed in some pre-literate society rather than one that boasts of a sophisticated human resource that “punches above its weight”. In this regard, the reported words of the Minister are intriguing-“Once you operate in Barbados then you conform to the laws that are made (sic) here.”
In fact, on this particular issue, we have made none.