Draft Labour Code again! I hope I shall not often have to return to a subject as quickly as the draft Labour Code requires – I also wrote about it last week. But this is a topic that calls for intense scrutiny in a very short time span.
In my article last week I began by saying: “What do we want? We want employment. What do we want? We want employment.”
Indeed we want employment, but the burning question is whether businesses with the potential to provide employment will be deterred from operating in Anguilla under the terms of the proposed Labour Code. It has been suggested that employers are already indicating that they will close their businesses rather than try to operate under this Bill. Without thriving businesses, the object of the exercise will be defeated. Without thriving businesses there will continue to be too few jobs.
The draft Labour Code Bill was introduced in the House of Assembly on Tuesday of last week and had its first reading. The second and third readings, which are expected to occur at the next session of the Assembly, will provide the opportunity to debate the Bill’s provisions. That debate will follow what the government is pleased to describe as “consultation”. And there lies the rub.
The government has adopted a Bill drafted largely (or perhaps wholly – I do not know) by outside consultants whose expertise is more applicable to industrialised economies, rather than to primarily service economies such as Anguilla. And the government has done so without adequate consultation. It is true that at the eleventh hour it has organized meetings with the public and other interested bodies such as the Anguilla Bar Association. But that does not amount to adequate consultation on a piece of legislation that will be crucial to the future viability of Anguilla’s economy. Proper consultation would have entailed involving, amongst others, ALL elected representatives of the people at the policy making stage of the process, so that the draftsman of the legislation would produce a Bill with fewer anomalies and defects. There was no such consultation. Bringing a Bill for first reading without such consultation, and without even having held meetings with the public, has resulted in a defective Bill and a timetable for correcting it before its second and third reading that will render it impossible to get it right.
There is much in the Bill that is commendable. The interests of Employees are not adequately protected under the present law and I support some of the changes intended to correct this. However this has not gone far enough; hotels will, for example, continue to be entitled to employ staff as self-employed, without the protections available to employees, and a new category of worker is introduced in the form of “dependent contractors” which will inevitably be exploited by unscrupulous “employers”. Another example of muddled thinking is that a provision for paternity leave is only applicable when the mother is a female employee who is granted maternity leave. The need for paternity is particularly acute where the mother is unemployed and ill, and requires the assistance of the father, but this possibility is expressly excluded. Why?
Perhaps one of the most dangerous provisions in the Bill is section 21, which provides that “On receipt of a report of an unresolved dispute transmitted by the Commissioner …. the Minister may—(a) himself or herself attempt to achieve a voluntary settlement of the issue, taking whatever steps he deems appropriate, including consultation with the Commissioner……….”. In a small community, such as Anguilla, a Minister should not have any role in individual industrial disputes, as a matter of principle. One, if not both, of the parties to the dispute may be well known to the Minister. Impartiality will be perceived to be humanly impossible. Such a power will inevitably bring discredit on the administration. The entire provision should be removed. Disputes should go perhaps to voluntary mediation, then compulsorily to the Commissioner for a further attempt at mediation, and then to the Labour Tribunal.
The Minister of Labour is also given an inappropriate role in relation to strikes and lockouts. For the same reason that employee disputes should be insulated from politics by giving the task of mediation to the Labour Commissioner, so should the task of negotiation and conciliation in cases of threatened industrial action rest with the Commissioner. Anguilla has more than its fair share of reasons to suspect its politicians of unfair (and in some cases corrupt) bias, without writing a recipe for further such aggravation.
While the provisions for employers to make retirement provisions for permanent employees will have the appearance, as they are no doubt intended to, of benefiting employees, in fact they will simply result in employers being priced out of the market so that the jobs will cease to exist and new jobs will not be created. The provision ignores the existence of the Social Security Act which is intended to provide a pension for employees. The Bill provides for a second deduction and contribution to be made, in addition to the social security deduction, and it obliges every employer, no matter how small, to make and be responsible for a retirement plan for every employee. This is economically and practically unworkable. But it is not only unworkable, it is entirely unnecessary. There is nothing to prevent employers and employees negotiating voluntary supplementary pension schemes.
There is so much more that could be said about this half-baked Bill. I just beg the government to recognise that while it is in some respects a step in the right direction for the employees of Anguilla, it does require significant further amendments in order to make it a fairer and commercially more viable Bill for both employer and employee, and that any such amendments should not be steamrollered through without proper, rather than fake, “consultation”. A comprehensive dialogue should be engaged in to include ALL elected members of the Assembly, as well as other persons who have the ability to bring objective and non-partisan contributions to the table. I once again encourage anyone with constructive suggestions to come forward. Getting this Bill right is vital to Anguilla’s economy and future.
