Tag Archives: Employment Rights Act

Job Creation a Must for the Youth!

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The blogmaster listened recently to an extract from a speech by Minister Ryan Straughn where he emphasized the importance of Barbados investing in our youth because this is where future growth will have to originate. He was quick to clarify for those that would assume the obvious the older demographic will not be neglected given such a focus. The preamble serves to introduce the following article.

CONVERSABLE ECONOMIST
The Jobs Problem in India

Posted: 08 Oct 2019 07:00 AM PDT

One of India’s biggest economic challenges is how new jobs are going to be created. Venkatraman Anantha Nageswaran and Gulzar Natarajan explore the issue in “India’s Quest for Jobs: A Policy Agenda” (Carnegie India, September 2019). They write:

The Indian economy is riding the wave of a youth bulge, with two-thirds of the country’s population below age thirty-five. The 2011 census estimated that India’s 10–15 and 10–35 age groups comprise 158 million and 583 million people, respectively. By 2020, India is expected to be the youngest country in the world, with a median age of twenty-nine, compared to thirty-seven for the most populous country, China. In the 2019 general elections, the estimated number of first-time voters was 133 million. Predictably, political parties scrambled to attract youth voters. It is therefore not surprising that, according to several surveys, the parties’ primary concern was job creation. The burgeoning youth population has led to an estimated 10–12 million people entering the workforce each year.6 In addition, the rapidly growing economy is transitioning away from the agricultural sector, with many workers moving into secondary and tertiary sectors. Employing this massive supply of labor is, perhaps, the biggest challenge facing India

India’s jobs in the future aren’t going to be in agriculture: as that sector modernizes, it will need fewer workers, not more. A common assumption in the past was that India’s new jobs would be in big factories, like giant assembly plants or manufacturing facilities. But manufacturing jobs all around the world are under stress from automation, and with trade tensions high around the world, building up an export-oriented network of large factories and assembly plants doesn’t seem likely. As Nageswaran and Natarajan point out, most of India’s employment is concentrated in very small  micro-firms in informal, unregulated business. The challenge is to add employment is small and medium formal firms, sector often in industries with a service orientation.

The Sixth Economic Census of India, 2013, which combines all types of enterprises, shows that India had 58.5 million enterprises, which employed 131.9 million workers. Nonemployer, or own account firms, constituted 71.7 percent of these enterprises and 44.3 percent of workers. Further, 55.86 million (or 95.5 percent) of all the enterprises employed just 1–5 workers, 1.83 million (3.1 percent) employed 6–9 workers, and just 0.8 million (1.4 percent) employed ten or more workers … Further, comparing India’s formal and informal manufacturing establishments to Mexico and Indonesia reveals the true scale of India’s challenge within this sector. Enterprises with fewer than ten workers make up nearly 70 percent of the employment share in India, compared to over 50 percent in Indonesia and just 25 percent in Mexico.

To put this in a bit of context, India’s Census is finding employment of 131.9 million workers, mostly in very small firms. But India as a country has a workforce of over 500 million, and it’s growing quickly. The other workers are either working for subsistence, in agriculture or cities, or in the informal economy.

Why has India had such a hard time in creating new small- and medium-sized firms? Part of the answer is a heavy hand of government regulation.

India is often considered one of the most difficult places to start and run a business. … One of the biggest hurdles that potential enterprises in India face is the complexity of the registration system—all enterprises must register separately with multiple entities of the state and central governments. Under the state government, the enterprise has to register with the labor department (Shop and Establishment Act), the local government (municipal or rural council acts), and the commercial taxes department for indirect tax assessments. There are also several state-specific legislations—the labor department alone has thirty-five legislations.

Under the central government, enterprises must register with the Ministry of Corporate Affairs for incorporation (Companies Act), the Central Board of Direct Taxes for direct tax assessments, and the labor department’s Employees’ Provident Fund Organization (EPFO) and Employees’ State Insurance Corporation (ESIC). Further, there are registrations specific to sector or occupational categories—for example, manufacturing enterprises with more than ten employees must register with the labor department under the Factories Act.

Based on the application or software employed for each registration, employers also must possess a multitude of numbers: for example, a labor identification number—used to register on the Shram Suvidha Portal, the Ministry of Labor and Employment’s single window for reporting compliances; a company registration number; and a corporate permanent account number. Employees must possess an Aadhaar biometric identity number, an EPFO member number, an ESIC identity number, and a universal account number.

According to current labor laws, service enterprises and factories must maintain twenty-five and forty-five registers, respectively, and file semi-annual and annual returns in duplicate and in hard copy. Furthermore, regular paperwork tends to be convoluted; salary and attendance documents should be simple but instead require tens of entries. In addition to the physical requirements of complying with these regulations—making payments, designing human resource strategies, or meeting physical infrastructure standards—enterprises also have onerous periodic reporting requirements. All these requirements add up to impose prohibitive costs that reduce the success of
these businesses.

This regulatory environment offers a powerful incentive for small firms to remain informal, off-the-record, under-the-radar. A related issue arises because payroll taxes in India are very high–for workers in the formal sector, that is.

Manish Sabharwal, the chairman of TeamLease Services, a staffing company, wrote that salaries of 15,000 rupees a month end up as only 8,000 rupees after all deductions, from both the employer and employee sides. The employer makes deductions for pensions, health insurance, social security, and even a bonus, which are statutorily payable in India and would otherwise increase costs to companies. Consequently, the take-home pay for a worker earning less than 15,000 rupees a month is only 68 percent of their gross wages. Lower-wage workers are far more affected than higher-wage workers, who are protected by the maximum permissible deductions, which lowers the amount of deductions from their gross salary. Further, though international comparisons are often difficult and misleading, a cursory examination suggests that India’s deductions are among the highest in the world and are a deterrent to businesses starting or becoming formal.

Yet another issue is that there are many programs providing support and finance to very small firms. An unintended result is that these firms have an incentive to remain small–so they don’t have to give up their incentives.

Gursharan Bhue, Nagpurnanand Prabhala, and Prasanna Tantri point out that firms are willing to forgo growth in order to retain their access to finances. That is, when certain easier financing access is provided to firms below a certain threshold (say, SME firms), they prefer to forgo growth opportunities that would allow them to cross this threshold: “firms that near the threshold for qualification slow down their investments in plant and machinery, other capital expenditure” and experience slower growth in manufacturing activity and output. The authors also point out that when banks are put under pressure to lend to micro, small, and medium enterprises, they fear the fallout of not meeting those lending targets and consequently encourage their borrowers to stay small.

Nageswaran and Natarajan argue that most of India’s informal firms are “subsistence” firms, unlikely to grow. They cite evidence from Andrei Shleifer and Rafael La Porta that few informal firms ever make a transition to formal status. Instead, the goal needs to be to have more firms that are “born formal,” and which are run by entrepreneurs who have a vision of how how the firm can grow and hire.  In India, this doesn’t seem to be happening.   They write:

Chang-Tai Hsieh and Peter Klenow’s latest work, “The Life Cycle of Plants in India and Mexico,” is instructive in its exploration of the life-cycle dynamic of firm growth across countries. They find that, in a sample of eight countries including the United States and Mexico, India is the only  ountry where the average number of employees of firms (in the manufacturing sector) ages 10–14 years is less than that of firms ages 1–5 years. It is generally expected that, as firms remain in business for longer periods, they would naturally employ more workers. In India, however, the inverse has proven true—employment in older firms is less than in younger firms. Hsieh and Klenow also find that the typical Indian firm stagnates or declines over time, with only the handful that reach around twenty years of age showing very slight signs of growth.

What’s to be done? As is common with emerging market economies, the list of potentially useful policies is a long one. Reforming government regulations, payroll taxes, and financial incentives with the idea of supporting small-but-formal businesses, and not hindering their growth, is one step. Nageswaran and Natarajan also point out that the time needed to fill out tax forms is especially onerous in India.

Ongoing increases in infrastructure for transportation, energy, communications matters a lot. Along with overall support for rising education levels, it may be useful to take the idea of an agricultural extension service–which teaches farmer  how to use new seeds or crop methods–and create a “business extension service” that helps teach small firms the basic managerial techniques that can raise their productivity. India’s government might take steps to help establish an information framework for a national logistics marketplace, which would help organize and smooth the movement of business inputs and consumer goods around the country: “Amounting to 13 percent of India’s GDP, the country’s logistics costs are some of the highest in the world.”

But in a broad sense, the job creation problem in India comes down to a more fundamental shift in point of view. Politicians tend to love situations where they can claim credit: a giant new factory opens, or a new power plant. Or at a smaller scale,  politicians will settle for programs that sprinkle subsidies among smaller firms, so those firms that receive such benefits can be claimed as a success story. But if the goal for India’s future employment growth is to have tens of millions of firms started by well-educated entrepreneurs, this isn’t going to happen with firm-by-firm direction and subsidies allocated by India’s central or state governments. Instead, it requires India’s government to be active and aggressive in creating a general business environment where such firms can arise of their own volition, and it’s a hard task for any government to get the right mix of acting in some areas while being hands-off in others.

The Jefferson Cumberbatch Column – Follow the Process

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Prior to the introduction of the Employment Rights Act, employment in the private sector in Barbados was regarded as a mere commodity like any other, capable of being granted and re-purchased by the employer at the latter’s whim by a sufficient payment in lieu of the damages to which the employee would be entitled where the dismissal was not in accordance with the contract.

No reason had to be given for such a termination at the initiative of the employer, and even if one reason were given at the time of a summary dismissal, the law nevertheless permitted the employer to rely on a later discovered reason at the trial where the employee sued for wrongful dismissal, that is, a dismissal in breach of the employment contract.

It was generally accepted that this regime paid little or no regard to the dignity or autonomy of the employee.

The Employment Rights Act 2012 however introduced the concept of unfair dismissal into Barbadian employment law at a comparatively late stage in the region. The “unfair” dismissal, as opposed to one that was merely “wrongful”, does not depend upon there being simply a breach of the employment contract such as the employer giving insufficient notice of the dismissal, an inadequate payment in lieu of such notice or utilizing an unjustifiable summary dismissal.

Rather, it may be happily described as a dismissal in breach of the statutory right of the employee not to be unfairly dismissed as contained in section 27 of the Act.

Concordance with the Act is predicated on two levels: that the dismissal be for a fair reason [section 29] and not for an unfair reason [sections 30 and 31]; and that the determination of the existence of this reason be based on a fair procedure, including a fair investigation and a hearing consistent with the principles of natural justice.

This latter especially was emphasized last week by the Honourable Chairman of the Employment Rights Tribunal, Christopher Blackman QC, when he admonished employers to follow the stipulated procedures when seeking to dismiss workers. According to the Chairman, who bemoaned the high incidence of matters before the tribunal where employers were not following the required statutory procedures, “Employers need to look at their processes and not rely on practices that have no bearing to commonsense…”

With this statute, the dignity of the employee as an individual was clearly respected. He or she was no longer essentially dismissible at the pleasure of the employer and by virtue of the employer now having to justify the dismissal by establishing a stipulated reason and showing that the factual basis for this had been established after a fair investigation and hearing, the concept thereby reduced the notion of a broad managerial prerogative and enhanced the security of tenure of the employee.

Moreover, the dismissal is also to be further assessed for fairness on whether the employer acted “reasonably or unreasonably” in treating the reason as a sufficient justification for dismissing the employee, although this determination is not to be assessed on what the tribunal itself would have done, but instead on how a reasonable employer, identically situated as the defendant was, would have acted.

Nor is the procedure with which the employer has to comply a particularly onerous one. For dismissals generally, and specifically for those based on the capability of the employee or on his or her conduct, disciplinary action should be progressive, and where a dismissal is contemplated, the employer must “set out in writing the alleged conduct or characteristics of the employee, or other circumstances, which lead him to contemplate taking disciplinary action against the employee; and send the statement or a copy of it to the employee and invite the employee, along with his representative, if any, to attend a meeting to discuss the matter”.

The Fourth Schedule to the Act also makes provision for the conduct of the meeting referred to above, including the timelines for its occurrence, the necessary preconditions for including the obligation of the employee to take all reasonable steps to attend the meeting, and the post-meeting obligations of the employer [paragraph 2 (1) to (4)].

Paragraph 3 of the Schedule provides for the circumstance where an employee wishes to appeal the determination of the hearing-

Where the employee wishes to appeal, he must so inform the employer in writing, and follow the established disciplinary procedure of the workplace.

Part C of the Fourth Schedule further provides for a modified disciplinary procedure that requires to be sent to the employee by the employer a written statement of the alleged misconduct of the employee which led to the dismissal; the basis for thinking at the time of the dismissal that the employee was guilty of the alleged misconduct; and the right of the employee to appeal against the dismissal.

This provision that appears to permit an employer to decide on a dismissal without a hearing seems to be an anomaly in a system that emphasizes natural justice and should probably be available in limited circumstances only. The employee’s right of appeal against a decision that has already entered the mind of the employer seems little more than a brutum fulmen in this context. The right to a hearing where dismissal is contemplated ought to be waiveable by the employee only.

Indeed, in the very case where the Chairman is reported to have made his quoted comments, the dismissal was held unfair because, inter alia, there was an internal hearing to which the dismissed employee was not invited to defend herself.

The Jeff Cumberbatch Column – A Missed Opportunity for Reform

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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.

The Caswell Franklyn Column – Politicians Feathered their Nests for Life while Ignoring other Workers

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I had every intention of staying away from politics during the current election campaign. However, after hearing the concerns of a few friends of mine, who happen to be Democratic Labour Party supporters, about the employment prospects of some government ministers, in the event of a change in government, I have decided to put their minds at ease.

Their concerns were that: it isn’t fair to remove the present crop of ministers because they were dealt a bad hand from inception; and many of them did not have professions to enable them to fit comfortably back into private life, after piloting this country through such rough times. My friends were of the view that the Opposition candidates were mostly professionals and did not need the jobs. All I tried, I could not convince them that their fears were misplaced. I would now like to share my views with the wider audience afforded me by the Nation.

Most importantly, all elected members of parliament know that they were literally employed, by the electorate, on a five year contract, renewable at the voters’ pleasure. Ordinarily that means the voters would renew parliamentarians’ contracts after satisfactory performance.

It is noteworthy that this same administration has put in place the Employment Rights Act which allows an employer to fairly terminate a worker, without a cent in compensation, for poor performance. As practised locally, it does not matter that employee could have had a number of years of good service prior to the subject poor performance.

In the case of politicians in Barbados, they have no reason to fear dismissal without compensation, whether their performance is good, bad or ridiculous. Believe it or not, after this less than stellar performance, the Prime Minister, in the event that he ceases to hold that office even if he becomes part of the Opposition, is entitled as of right to a pension for life. At current rates of salary, he is entitled to a full pension of $11,287.53 per month. And if he chooses, he can opt to receive a gratuity of $423,282.50 and a reduced pension of $8,456.65 per month.

After eight years service, the other ministers and parliamentary secretaries qualify for retiring benefits from fifty years of age, as shown in the table below:

Pension Gratuity

Minister. $4,761.94. $238,096.88

(After 8 years service)

Minister. $6,349.25 $317,464.50

(After 12 years’ service)

Parliamentary Secretary $4,622.70. $231,134.81

(After 8 years’ service)

Parliamentary Secretary $6,163.58 $308,179.17

(After 12 years’ service)

Also, in addition to the above, politicians are entitled to another pension when they attain an age to qualify for the National Insurance pension, which can be as early as sixty years of age. It is clear that these individuals are set for life, and there is no reason to fear that they would go hungry.

The people of this country should worry less about the quality of life of politicians after retirement and spare a thought for police officers, firemen and Transport Board drivers among other persons who give full time public service. But I want to make a case for the three categories of persons that I have mentioned who are required to do hard physical labour and should also be allowed to retire early on full pension as well.

Members of parliament qualify to receive their pensions at fifty years of age. On the other hand, these same politicians over time have gone to parliament and increased the retirement age for other public servants to sixty-seven. Now just imagine, a 66 year-old policeman pursuing and trying to apprehend a fleet-of-foot 20 something year-old suspect. Also, what about the 66 year-old fireman with arthritic knees running up a ladder attempting to save someone from certain death.

We must ask ourselves if it fair and what is so special about desk-bound politicians that they can receive their pensions and gratuities at 50 and police officers and firemen have to wait for a further seventeen years?

However it seems that everyone has forgotten about Transport Board drivers. They are also required to work until 67 years of age. Unfortunately for them, they are the only public workers that are not entitled to a pension or gratuity from their employer. When they reach retirement age, they receive their last weekly pay cheque and go home.

This country must stop deifying politicians and do the right thing by all workers.

The Caswell Franklyn Column – Widespread Misinterpretation of Employment Rights Act

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Caswell Franklyn, General Secretary of Unity Workers Union

On Tuesday, May 16, 2017 the Daily Nation published a story headlined, CONTRACT ROW, where it was reported that workers, from a construction company, called in their union to deal with a matter concerning changes to their contract. Also, on May 12th the Barbados Today reported that the Minister of Labour, Dr. Esther Byer-Suckoo, told Barbadian employers to put their houses in order, as it relates to the Employment Rights Act (ERA), before they complain.

At first blush, it would appear that these stories are unconnected. Sadly, they are inextricably bound up since both sprang from widespread misinterpretation and or misunderstanding of some provisions of the ERA. As best I can, I would like to clarify some of the problem areas.

Dr. Byer-Suckoo is reported to have said:

What we have realised is that what is set out in the legislation has not in many instances been adhered to. So where the legislation speaks to having disciplinary procedures articulated and it also speaks to having a statement of particulars for the workers, a lot of this has not been done by many persons.

Even though the Minister’s position is desirable, the ERA does not contain any provisions that mandate employers to have written job descriptions for all workers. Mind you, the Minister is not alone in her misinterpretation of the ERA. Many industrial relations consultants and human resource specialists have made a financial killing drafting job descriptions to bring unsuspecting employers into compliance with provisions of the ERA that do not exist.

As currently drafted, section 13.(1) of the ERA could not possibly mean that all employers are required to provide written job descriptions for all employees. It states:

Where a contract of employment is contemplated, the employer shall, prior to or forthwith upon the commencement of the contract, give the employee a written statement of the particulars of the employment.

There is simply no way, barring time travel, that an employer can give an existing employee a statement of employment particulars before the start of his contract. This section can only apply to new recruits or existing employees who are being promoted.

Without knowing more than what is reported in the Daily Nation, it would appear that the construction company was attempting to comply with the erroneous interpretation of the ERA. Those workers must be applauded for setting the example for other workers in similar situations. Rather than blindly sign new contracts, they sought guidance from their union. I am aware that in many other cases, when employers reduced the job descriptions of existing workers to writing, they sneaked in new duties to the detriment of the workers.

In the Barbados Today article, it was also reported that the Executive Director of the Barbados Employers Confederation highlighted two sections that were open to various interpretations. He claimed that section 10 which provides for a person to appear before the Tribunal with “any other person whom he desires to represent him” was often “grossly misinterpreted“, with individuals turning up with lawyers.

I will not attempt to argue the point. Quoting section 10 would suffice to make my case. It states:

A person may appear before the Tribunal in person or may be represented by

(a) legal counsel;

(b) a representative of a trade union or an employer’s association; or

(c) any other person whom he desires to represent him.

All along I thought that legal counsel meant lawyer but I am still learning.

The Executive Director then set his sights on section 26 (b) claiming that it needed to be clarified. That section makes it unfair to dismiss a worker, who is employed on a fixed term contract, if the contract expires and it is not renewed under the same contract, unless certain fair procedures are observed.

Prior to the passage of the ERA, a worker would qualify for severance pay if he had been employed on a fixed term contract and his services were terminated after 104 weeks. It was common for employers to dismiss employees after working 103 weeks, thereby depriving them of severance payments. Section 26 (b) was intended to remedy that abuse.

The original Employment Rights Bill was watered down after objections from employers. It now seems that employers are seeking to get back to the bad old days when workers had no rights.

The Jeff Cumberbatch Column – Current Issues in Local Employment Relations I

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Jeff Cumberbatch - Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

Jeff Cumberbatch – Chairman of the FTC and Deputy Dean, Law Faculty, UWI, Cave Hill

The Barbadian employee and, in some cases, his or her representative union, might agree with the second part of the opening couplet of Charles Dickens’ A Tale of Two Cities” that these are indeed “the worst of times” or, if they are not, they do come pretty close. Last week, we heard from no less a personality than the Honourable Labour Minister that some local employers are ignoring the applicable labour laws, especially those pertaining to the rights of the employee under the relatively recently enacted Employment Rights Act and, perhaps more chilling, some of the provisions under the Safety And Health at Work Act.

And that is not all. ON the collective front, the Barbados Union of Teachers is clearly in a quandary as to the appropriate strategy to be employed (!) in order to establish its claim for some of its members to be reimbursed those wages that were abated by the employer, the Ministry of Education earlier this year in response to the absence of those teachers from their duties while engaging in union activity.

Having persuaded itself that it had the law on its side since it was not at the time engaging in industrial action, the BUT has, seemingly, now been disabused of that idea and has chosen rather to resort to the tried and tested method, enabled by its freedom of association, of industrial action so as to press its suit. I suppose that this initiative is consonant with the famous advice once given to lawyers by Carl Sandburg, a US poet and prize-winning editor, to the following effect – “If the facts are against you, argue the law. If the law is against you, argue the facts. If the law and the facts are against you, pound the table and yell like hell”. The union’s chosen recourse in this instance is clear.

The Barbados Workers Union, on the other hand, has publicly avowed its displeasure with the use by some local employers of fixed term contracts so as to avoid their statutory obligations to those employees who might otherwise acquire certain rights by a period of continuous service. Of course, there is nothing inherently wrong with the concept of the fixed term contract and its use may be legitimately required in those cases where the worker is merely replacing an employee who is temporarily absent from work or where there is a temporary surge in work volume, though not expected to last beyond a foreseeable period, thus engendering a need for the non-permanent engagement of workers.

The rub comes, however, where the employee is consistently rehired on a fixed-term contract, seemingly in perpetuity, thus enabling the employer to avoid, or even evade in some cases, its statutory obligations while the employee suffers the consequent insecurity of tenure and is unable to claim the continuity of employment necessary to become entitled to basic statutory entitlements.

It bears reminder that the International Labour Organization frowns on this practice and, in its Recommendation 166. it stipulates that “adequate safeguards should be provided against recourse to contracts of employment for a specified period of time the aim of which is to avoid the protection resulting from the Termination of Employment Convention, 1982, and this Recommendation”.

One of the safeguards recommended is limiting recourse to the circumstances in which employers may utilize fixed term contracts; and that of deeming contracts for a specified period to be contracts of indefinite duration especially when renewed on more occasions than one for other than prescribed reasons.

As I note in a piece I have prepared for future publication, Montserrat only of the regional jurisdictions has legislated in accordance with this provision. The point to be made here is that since the use of the fixed term contract may be legitimate and even obligatory in some scenarios, common sense may warrant a concentration on the prevention of abuse of these contracts rather than their complete prohibition.

Again, the popularity of social media, wherein participants are not at all reluctant to share the details of their meals, their views as to the intellectual capacity or, more frequently, incapacity of public figures and even their fidelity to religious doctrine was destined eventually to intersect with the workplace. It did so recently in the notorious dismissal of an employee miffed at the requirement to participate in a safety drill and who, we suspect, would scarcely be consoled by the fact that her post quickly went viral, thereby transforming her into a poster girl for all those workers who might be afraid of sharing publicly their disaffection with the conditions at their workplaces.

This matter cries out for the mandatory drafting of a workplace social media policy by the employer -reasonable notice of which should be provided to each employee. This would serve to clarify what does or does not constitute acceptable conduct in this context and should provide for progressive discipline in the event of an infraction. It would also include matters such as Internet and social media access on work computers and at work in general; restrictions as to the content of any posts by the employee and prohibitions on the identification of the organization with the personal views of the worker on socially sensitive issues such as partisan politics and religion.

Enough for one day. I propose to continue this discourse next week with an examination of the response of the local workers organizations to the official outsourcing of work traditionally performed by public employees to private contractors and of the international labour law perspective on the reversion to his substantive post in the public service of the current president of the National Union of Public Workers.

The Caswell Franklyn Column – A Limit on Wage Deductions

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BU shares the Caswell Franklyn Nation newspaper column – he is the General Secretary of Unity Workers Union and BU Contributor.
Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

To my mind, Government’s primary duty is to protect its citizens, and as an employer, […]
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The Caswell Franklyn Column – Employee Rights Still at Risk

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BU shares the Caswell Franklyn Nation newspaper column – he is the General Secretary of Unity Workers Union and BU Contributor.
Caswell Franklyn, Head of Unity Workers Union

Caswell Franklyn, Head of Unity Workers Union

NOT ALL BLACK AND WHITE: Employee rights still at risk

CASWELL FRANKLYN, […] Continue reading →

Is Government Deceiving Workers?

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Caswell Franklyn, Head of Unity Workers Union

Workers in this country would have breathed a collected sigh of relief when Parliament passed the Employment Rights Act. That act ushered in a series of reforms that are intended to introduce a previously unknown level of fairness in the employer/employee relationship. The introduction of this act was resisted for a number of years by both employers and trade unions for different reasons: employers and their representatives were used to the one-sided relationship and were fighting to the bitter ends to hold on to the almost feudal system that currently exists; and unions, one in particular, were used to brute force to resolve disputes which would now be replaced by a rules based system that required a hitherto unpractised intellectual approach. Even though both sides opposed the legislation, for different reasons, it is in effect a first step in the right direction.

The Governor-General gave his assent to the Employment Rights Act on May 18, 2012; and it was brought into force on May 24, 2012 when it was published as a supplement to Official Gazette N0. 43 dated that same day. May 24th should have been celebrated as a landmark for the protection of workers’ rights. Instead, it will go down as a day of infamy since the Employment Rights Act was the law of the land for a mere 25 days.

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