Anguillians are often described as having a sense of entitlement. This description is sometimes made in relation to the expectation of many Anguillians that their status as an Anguillian will accord them preferential treatment in the job market. The policy of ‘Anguillians first’ sounds good and it is a policy that most persons, all things being equal, would have difficulty supporting.
Are all things really equal? Employers usually recruit employees with the expectation that they will promote their employer’s business and secure its profitable growth. Employers are, therefore, interested in employing the individual with the best qualifications, experience, character and work ethic. What of the situation where the best qualified and most experienced applicant, with the appropriate character and work ethic, is not an Anguillian but there is actually an Anguillian who, although not the most qualified and experienced of the applicants, does have the level of qualifications and experience required for the job, and meets the requirements as regards character and work ethic? Should the most qualified and experienced applicant get the job or should the appropriately qualified and experienced Anguillian get the job?
In the public and private sectors it is generally accepted that where there is an appropriately qualified and experienced Anguillian the job should go to that person, despite the availability of a better-qualified and experienced non-Anguillian. This view is sometimes contested by developers who, on the premise of their significant investment in Anguilla, are of the view that they should have the ultimate say in who occupies certain significant posts in their enterprise. This has sometimes led to contentious moments between government officials and developers.
It is my understanding that governments have sought to address the issue by using moral suasion to convince developers to establish understudy programmes, designed to train Anguillians to assume pivotal roles in their enterprises. While some tourism projects have attempted to establish such programmes there has been no national response to this situation.
The existing Fair Labour Standards Act does not address the issue of recruitment or the establishment of understudy programmes. The Anguilla Constitution in section 13 (1) provides that subject to subsection 4 “no law shall make any provision which is discriminatory either of itself or in its effect”. Subsection 4 (a) of section 13 then provides that “Subsection 1 of this section shall not apply to any law so far as that law makes provision – (a) with respect to persons who do not belong to Anguilla”. If my understanding of the Constitutional provision is correct it is possible for laws to be drafted which are more favourable to belongers (Anguillians) than to non-belongers (non-Anguillians).
In this respect it is interesting to note section 175 of the draft Labour Code which is being considered by the House of Assembly. I have set out section 175 below in its entirety.
“175. (1) In considering an application from a prospective employer, the Ministry shall take into consideration the following matters—
(a) that the prospective employer has demonstrated a genuine need to engage the services of the prospective worker;
(b) subject to subsection (2), that the prospective employer has sought by advertising for 2 consecutive weeks in a media outlet approved by the Labour Commissioner to ascertain the availability of any one or more of the following in the order in which they are listed—
(i) a belonger of Anguilla,
(ii) the spouse of a belonger of Anguilla, and
(iii) a person legally and ordinarily resident on Anguilla who is qualified and willing to fill the position.
(c) the reasons why the prospective employer is not employing a belonger of Anguilla or any of the other persons listed under paragraph (b).
(2) The Minister may exempt a prospective employer from the requirement to advertise under subsection (1)(b) if the Minister is satisfied that the skill set necessary to perform the work is not available in Anguilla or given the context of the application it would be unreasonable for the prospective employer to advertise.
(3) Where an employer has been granted work permits for a professional, managerial or skilled occupation the Minister may impose the following conditions and restrictions—
(a) that the employer develop and submit an employee training programme or an employee understudy programme which is satisfactory to the Ministry;
(b) establish a scholarship programme or contribute to a scholarship fund which is managed in a manner satisfactory to the Ministry; or
(c) notify the employer that a work permit or group of work permits shall not be renewed after a specified period.
(4) In considering whether to grant a prospective employer a work permit the Minister shall consider whether the employer has complied with any other legal and policy obligations.”
The tenor of section 175 is clearly that belongers (Anguillians) are to be preferred applicants in the recruitment process. It accepts that there will be occasions where an Anguillian might not be employed in certain positions and appears, by virtue of section 175 (3), to seek to make provision for Anguillians to be equipped to occupy such positions, through the establishment of an approved understudy or scholarship programme. It is noted that section 175(3) does not speak to an Anguillian being the beneficiary of any understudy or scholarship programmes, but the tenor of section 175 leaves one with the clear impression that that is what is desired and anticipated. Is a provision such as section 175 (3) needed? If it is, is it adequately set out or should it be more explicit, if it is intended to secure preferential treatment solely for Anguillians?
Anguillians should seize the opportunity to convey their views on this and other provisions of the draft Labour Code, prior to its passage in the House of Assembly. According to the Press Release issued by the Honourable Minister of Home Affairs on 26th January, 2018 there is “still time for persons to review the Bill and make any final recommendations prior to its passage in February 2018.”
