The Anguilla Hotel and Tourism Association (AHTA) is receiving legal advice that would guide its varied members in their rush to present a convincing case for a stay of, or amendments to, the Labour Code, within an allotted six weeks.
“The Government of Anguilla was very gracious when we wrote them and they replied saying they would give us six weeks to liaise with our members and then come back to them,” Executive Director of the AHTA, Mrs. Gilda Gumbs-Samuel, told a hastily-called meeting of members from the smaller properties and businesses, at Paradise Cove, late Tuesday evening, February 20.
“The idea is to compile one document from the AHTA – be it the larger hotels, other destination members, allied members, restaurants etc. – so that the Government can take a look at what the AHTA was having issues with. Because we have different groups, several of you have already been to some of the consultations. Ask your questions and make the best of it. Something tells me that this Labour Code will go through and it will be as good or as bad as we make it.”
The lawyer at the meeting was Mrs. Keesha Carty who gave a broad overview of the Labour Code, her feelings about it and answered questions:
“The Code is for you as small business owners; for me as a small business woman and for the larger hotels,” she told her listeners. “Because there is no distinction, based on the size of the business or the number of employees, it means that this will be more onerous on the small businesses than it would be on the larger businesses. I reviewed the Code, as a member of the Bar Association, whose obligation is based on what is worthy for the employees and the employers. The idea is to look at it from a very balanced standpoint. I also had to review the Code as a small business woman, and an employer, so that is the position from which I wish to discuss the Code with you.”
She continued: “This Code, coming into being, means that all of the obligations that we already have under the Common Law, are intensified and become more burdensome. The Bar Association has taken the view that right now is not the time to bring this Code into law for several reasons. One is that we know that some of the provisions being imposed contravene our Constitution. I will give you an example. I run a law office. The Code says that any Labour Inspector has the right to come into my law office and remove any documentation. It doesn’t say documentation specific to my employees. It says any documentation. What that does to my obligation to each client about confidentiality? Is that coming in through the backdoor in a way that the law does not allow them through the front door?
“I raised that concern and the response to me was that people would not be so brazen to come into law offices to do that, so this does not apply to you. It covers the larger hotels or the Chinese that may have other employees and information elsewhere. My response is: You may have intended it for that, but what does the Act say? It doesn’t say it covers employers who have a number of employees in excess.
“The Act is a blanket so it must mean that it applies to me, as a lawyer, as much as it applies to you, to the larger businesses and to the Chinese. In that way, the section about inspection cannot stand because it puts the practice of each lawyer in jeopardy. What about the banks – which under statute have an obligation to keep our information confidential? There is no fetter to say that these are off-limits.”
The lawyer argued that the section on inspection “does not say how long [removed documents] would be held; it does not give you an appeal process that you can complain to this or that person and stop the process which in itself is dangerous.”
She went on: “Let us take a normal court process. Suppose the police come to my office with a warrant to remove certain items. The first thing they have to do is to satisfy the court that there is reasonable cause to remove those things from my office. After I get the warrant, I have an opportunity to apply to the court immediately to reverse the warrant. Where is that opportunity in this Code? There is no opportunity. You can complain to the Labour Commissioner who is one of the assessors. When the assessors come to my office, or yours, are they not coming on the instructions of the Labour Commissioner?…If I am still aggrieved, my recourse is to the Minister who no doubt already knows about the sting ‘operation’ at my office. The process means that the covering and the avenues for redress that the court gives you are not afforded in the Code.
“The Bar Association has taken on the task of looking at each section; identifying where we believe they contravene the Constitution or the various laws, and to give feedback and proposals as to how to make the Code better. It is not our intention to kill the Bill, but I strongly believe that this is not the right Bill for us right now. It allows too much advantage to be taken; and for a country that is just coming out of a hurricane, the expenses are enormous.”
The lawyer and the business persons at the meeting discussed various other critical areas of the Code, including the sections on severance pay and retirement. It was a lively interactive meeting during which many questions and proposals were put forward. These are expected to be reflected in the overall document to be presented to the Government for consideration within the coming six weeks.
