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.

Government Moves Integrity Legislation Pass the Lower House

As incredible as it may seem to some, the Prevention of Corruption Bill, 2012 has passed the Lower House on its journey to being proclaimed. Hopefully this will be done before the Prime Minister rings the bell for the next general election. One suspects though that Prime Minister Stuart will deliver on this piece of legislation, this is the stuff legacy is built. Perhaps the one regret is that yet again Hansard will NOT record a contribution from the leader of the Opposition Owen Arthur.

A listen to the debate disappointed yet again. Members of parliament on both sides joined hands to paint a picture of a courageous group who has had to bear the brunt of vilification from the public. References were made to the #16 ranking which Barbados holds on Transparency International. The Prime Minister referenced the need to recognize that there is a perception that many in public life engage in questionable behaviour, therefore the need to have integrity legislation.  The listener was left with the impression that the government although tabling the legislation, has done so kicking and screaming.

To state the obvious integrity legislation serves many purposes. In private enterprise rules governing code of conduct is routine. It ensures that all employees are aware of the consequences of certain actions. It helps to feed a culture of excellence. BU posits that many practices which currently fly under the radar may be discontinued or forced into the open with the advent of integrity legislation. Should we remind the Attorney General that Transparency International’s ranking is based on a perception index? It is known how PSV permits were procured by may as a good example. A read of the Auditor General reports from 2006 also helps to form positions unfavourable to politicians and others in the public sector.

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2012: What Does This Movie Tell Us About The Apocalyptic Endgame For Planet Earth?

Submitted by Terence Blackett (reposted)


2012Hollywood is doing it again. This time it’s the terminal endgame for the planet. The blockbuster 2012 will be released in movie theatres on November 12th. The trailer for this movie paints an ominous planetary apocalypse where man’s greatest fear or in some cases denial becomes a final reality.

In much of Judaic-Christian apocalyptic literature as well as in Islamic Hadiths, end time scenarios paint a future of literal cleansing of the earth by fire and desolation. As 2012 highlights the ferocity of devastating earthquakes which creates record-breaking tsunamis coupled with Category 6 hurricanes which push global temperatures into bizarre fluctuations – the planet tether-totters as it writhes in cosmic agony as a pregnant woman in the labor pain of childbirth.

One may argue that predictions of how the world would end have been around for thousands of years. We can read summations of this eschatology based on the opening of the 7 Seals in the book of Revelation where the [4] Horsemen of the Apocalypse dole out patrimony in the form of war, famine, plague and death – consummating with the ultimate “Judgment Day” cosmological show-piece following on its heels.

For Muslims, it is the return of the Madhi and Jesus, son of Mary that will bring the final doomsday where the “Sun Will Rise In The West” and usher in the Golden Age.

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The Frozen Ark: “As It Was In The Days Of Noah” – Future Cloning, Tampering With Nature And Man’s Efforts To Resurrect Life From The Primordial Shadows Of Antiquity

Submitted by Terence Blackett

“And the thoughts of men’s hearts were only evil continually” – Genesis 6:5

Death remains man’s greatest foe. After 1000’s of years, we still grapple with this silent, torturous, invasive supernatural force. From the moment of birth, we are all doomed to die with no man knowing for sure the day of his demise. Many presuppose that death is a natural phenomenon – being the opposite of life.

But can death be properly explained, outside of the Biblical context?

Death like evil is an invisible enemy. They are both consequences of each other. Philosophy and science have for centuries been inundated with nagging questions but have been bereft of any real answers. Even religion struggles with these questions often glossing over them in hope that randomized spiritual appeasement would be enough to satisfy those who lose love ones under tragic conditions, through disease or even sudden circumstances.

Mankind remains in a perpetual state of abject denial contending that the prevalence of “EVIL” in the world (arguing senselessly) that it is a by-product of human choices. Understandably, there is an elementary grain of truth to be found in such forms of social perception – sadly, a half truth is still a whole lie!

Too many refuse to admit that evil spurns from a source that is way outside the realm of human cognizance and human reasoning. Evil is a malignant esoteric force; a primordial enemy; a vacuous entity which still “sneaks” in while men are asleep at the wheel. It gives no warning – it surfaces when least expected without fear of reprisal.

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