At present, the formal draft of a Labour Code for Anguilla is the subject of much discussion. In the past, there had been a number of meetings on the matter involving the Ministry of Home Affairs and the business community.
In an attempt to achieve the passage of a Bill for the Labour Code, 2018, meetings were resumed with two at the Church of God (Holiness) on the Queen Elizabeth Avenue, which attracted much public participation and debate.
In order to assist in further publicising the proposed Code, The Anguillian has undertaken, at its own expense, to publish the following lengthy Objects and Reasons for the Bill as a public service.
OBJECTS AND REASONS
The Labour Code seeks to consolidate and modernise the law relating to labour administration, employer and employee relations, health and safety, trade unions and collective bargaining.
Part 1 – Preliminary
The part defines key terms and confirms the Code’s applicability to all employees except police officers, employees in the Anguilla Public Service and persons with diplomatic immunities. However, despite this, parts of the Code related to equality of treatment, protection of children and young persons, forced labour, health and safety and trade unions are made applicable to all employers including Government.
Part 2 – Administration
This part deals with the establishment of the Labour Department and the responsibility of the Labour Commissioner for the administration of the Department and the enforcement of the Code. It provides for the appointment of Inspectors to monitor and enforce the provisions in relation to basic terms and conditions of employment, protection of wages, minimum wage, leave and work permits and health and safety. Inspectors are empowered to enter workplaces during normal hours to carry out inspections and request information to ensure that there are no breaches of the law. Employers are obligated to cooperate with the inspectors.
Part 3 – Settlement of Disputes
Under this part, employers and employees are encouraged to settle their disputes through negotiation, failing which the dispute can be referred to the Labour Commissioner to assist the parties to reach a voluntary settlement. In the absence of a settlement the Minister can facilitate the resolution of disputes by either meeting with the parties to achieve settlement, referring the matter to mediation or to a Tribunal. The membership and powers of the Tribunal are outlined in this part. They include the power to summon witnesses. The decisions of the Tribunal are binding and can only be appealed in the High Court on a point of law. Limitations are placed on industrial action in essential services. However, strikes and lock outs can take place in nonessential services so long as efforts to resolve the dispute have failed, the majority of employees voted for the action and the relevant trade union has given the Minister or employer three notices.
Part 4 – Advisory Committees
The Minister is empowered to consult with employees and employers in relation to the administration of the Code and to appoint advisory committees to consider and recommend policies to support the administration of the Code, greater collaboration and productivity.
Part 5 – Fundamental Principles and Policy
The Code is to be interpreted in a manner which is consistent with the Conventions of the International Labour Organisation. Additionally, several policies which underpin the interpretation of the Code are outlined. These include:
• the legitimate employment interests of belongers of Anguilla shall be paramount;
• the system of labour administration and dispute settlement shall seek to reconcile competing interests of employers and employees in a fair and equitable manner, having regard to the need to promote competitiveness of the economy of Anguilla, the viability of employers’ businesses and security of employment and decent working conditions for employees.
Part 6 – Basic Conditions of Employment
This Part outlines the minimum standards that must be adhered to as regards any employment relationship. It requires that the basic terms of the employment are provided in writing to the employee within ten days of engagement. It allows for differing probationary periods of one, three or six months depending on the type of employee and obligates the employer during that period to provide the employee the necessary training and orientation needed for the employee to satisfactorily complete the probationary period.
This Part provides for a standard 8 hour work day and 40 hour work week with a minimum of 1 day’s rest in every 7 day period. Additionally, meals intervals of not less than 1 hour are to be provided after 5 hours of continuous work. The overtime provisions of one and half times the normal wage on regular days and double pay on public holidays have been maintained. Further, employees who have reported to work but who have been stopped or prevented from working by the employer or act of God, must be paid. Additionally, employees on stand-by at the work place or on call must be paid accordingly. Employees paid by the hour or the day must be paid for public holidays even though they have not worked, so long as they did work on their scheduled work day before and after the holiday.
The payment of service charge is provided for in this Part. It is to be pooled and distributed every 4 weeks. An employer with at least 5 employees is obligated to establish a service charge committee to oversee the distribution of service charge. Tips however are the sole property of the employee.
Part 7 – Protection of Wages
This part seeks to ensure that employees receive remuneration for their work. As such, it provides that an employee’s wages are to be paid in EC or US currency at regular intervals (ie. daily, weekly, fortnightly or monthly). An employer cannot impose on an employee any restriction on how or where they should spend their wages. While an employer can make lawful and authorized deductions from an employee’s wages, the deductions should not exceed one third of the gross wage. An employer is prohibited from deducting from an employee’s wage any fees associated with the recruitment of the employee including not more than 50% of work permit fees (subject to the direction of the Labour Commissioner), and visa fees. Where an employee has been terminated, he/she must be paid outstanding wages within one week of termination. While wages must be in cash, an employer can give the employee additional benefits in cash or in kind (eg. accommodation, health care, retirement, gratuity, shares, stock etc), but these must not be in the form of alcohol, cigarettes, weapons or controlled drugs.
Employees have the right to seek redress in court to recover wages. Amounts owed by employers to employees will be given priority over all other debt claims against an employer. No more than 50% of an employee’s wages are entitled to attachment or seizure by the court.
Part 8 – Minimum Wages
Under this part the Minister of Labour is empowered to fix a minimum wage for employees generally and to fix different minimum wages for different categories of employee. To assist in this process, the Minister can appoint a minimum wage committee to consider and advise on an appropriate minimum wage. After a period of consultation, the wage is fixed by Order of the Minister and employers are obligated to comply.
Part 9 – Leave
This part outlines the leave entitlement of employees. Employees are entitled to annual paid holiday leave of 12, 15 or 20 working days depending on their length of service. Periods of absence from work due to maternity, illness or injury cannot be deducted when considering length of service. Where an employee has been terminated, they are entitled to be paid for any holidays that they have not yet taken. Employees are also entitled to paid sick leave, maternity leave for up to 14 weeks, paternity leave for up to 1 month in any given year and leave of up to 1 month after adoption of a child 3 years old or less. Additionally employees are also entitled to full pay while doing jury service, and half pay when representing Anguilla at national level at any sport or cultural event approved by Executive Council.
Part 10 – Disciplinary Action, Termination of Employment and Continuity of Employment
An employer may take disciplinary action in relation an employee for misconduct or unsatisfactory performance. This Part sets out the disciplinary options available to an employer as well as the procedure to be followed. It prohibits disciplinary action or termination on grounds related to:
• the employee’s race, colour, sex, religion, ethnic origin, nationality, social origin, political opinion or affiliation, trade union affiliation or activity, disability, sexual orientation, gender identity, HIV status, marital status or age;
• participation in industrial action
• any complaint made by the employee against the employer for violation of the Code.
The employee can terminate an employment relationship without notice if the employer has acted in a way that makes it unreasonable for the employment relationship to continue and claim against the employer for constructive dismissal. Similarly, an employer can dismiss an employee without notice in cases of serious misconduct including theft, fraud, gross insubordination, drug or firearm possession while on duty.
In cases of misconduct or unsatisfactory performance, the employer can use a series of actions including warnings to discipline the employee. Additionally, an employer can dismiss an employee who has been continuously ill for more than 6 months or who is injured, so long as it is determined that the employee no longer has the capacity to do the job. An employer can also discipline an employee for abuse of sick leave, but the onus is on the employer to prove such abuse.
The same notice periods for termination have been maintained in the Code. Where unfair dismissal has been proven, the employee is entitled to either reinstatement in their original position, reengagement in another position or compensation. In the event of winding up of the employer’s business, any amounts owed to employees take precedence to the claims of other creditors including Government and Social Security.
Where an employee has been given notice of termination, he/she is entitled to time off with pay to seek alternative work. Additionally, if so requested, the employer should provide the employee with a certificate of employment. In circumstances where there is a change in the ownership of the business, an employee who continues in employment with the new owner will carry forward all the years of service and accrued rights. If the employee is not employed by the new owner/ employer, the old owner/ employer must pay the employee all wages and benefits due including severance pay.
Under this part, termination of employees for reasons of redundancy is permitted. However, the employer must consult with and inform the employee’s trade union or representative and the Labour Commissioner. Criteria on selection of employees for redundancy are also outlined. An obligation is also placed on employers who rehire persons to carry out essentially the same functions within six months of redundancy to give first preference to the employees who were terminated. Where in making redundancy arrangements an employer invites employees to offer themselves for termination, severance pay exceeding that outlined in the Code must be offered.
Where an employee is terminated on grounds on redundancy, he/she is entitled to severance pay as follows
• one week’s wage for each completed year of service up to the first 5 years;
• 2 weeks’ wage for each completed year of service in excess of 5 years and up to 10 years;
• 3 weeks’ wage for each completed year of service in excess of 10 years; All calculated on the basis of the highest wage earned by the employee in the year before termination. Under this part, employers are also mandated to put in place a retirement benefits plan for their permanent employees.
Part 11 – Equality of Treatment in Employment
This Part prohibits discrimination on the grounds of race, colour, sex, religion, ethnic origin, political opinion or affiliation, indigenous population, social origin, national extraction, disability, HIV or perceived HIV status or other medical status, sexual orientation or gender identity, family responsibility, pregnancy, marital status or age, in relation to recruitment, selection and the terms and conditions for training, apprenticeship and employment. However it does allow for distinction and preference for genuine occupational qualifications, employment and promotion of belongers over non-belongers and temporary measures to promote equality of opportunity. Sexual harassment is classified as discrimination based on sex. Equal pay to men and women for equal work is mandated. Additionally, trade unions and other similar organisations are also prohibited from discrimination in their membership requirements and membership rights. The victimisation of employees who have taken any action in relation to the Code is also prohibited and can result in the award of aggravated damages.
Part 12 – Protection of Children and Young Persons
Employment of children under 14 years old is absolutely prohibited. Children 14 years and older can be employed during vacation periods, on weekends or public holidays, as part of a school programme or in a family business (so long as it is not during school hours). Employers as well as parents and guardians are liable to penalties if these provisions are not observed. Young persons (ie persons who are no longer of compulsory school age, but still under 18 years), can be employed but not after 8:00pm nor in hazardous work. A child or young person can be considered employed whether or not he/she is paid.
Part 13 – Forced Labour
Forced labour is prohibited and cannot be used as a form of discipline, punishment, discrimination or political coercion. Work done by prisoners for private individuals on a work release programme must be consensual and the prisoner is entitled to wages and conditions of work as other employees.
Part 14 – Health, Safety and Welfare
It is the duty of every employer to provide employees with a safe, healthy and secure working environment and any equipment, protective devices and clothing necessary to carry out the work in a manner in which the employees’ health and safety are not compromised. This Part details the need for employers to conduct risk assessments of their workplaces and put in place any protective measures identified as being necessary by the assessment. These include putting in place a safety and health policy and emergency plan as well as ensuring special provision is made for dealing with hazardous materials, pregnant women, young persons, proper disposal of waste, mitigation of the effects of noise and vibrations etc. Employers also have to identify safety and health representatives and establish safety and health committees to, among other things, review workplace conditions and make recommendations for improvements.
Where on inspection of workplace it is found that the conditions are likely to cause bodily harm to employees, the Labour Commissioner has the power to direct:
• the cessation, immediate or otherwise, of any activity, operation or process;
• the vacation, immediately or otherwise, of any premises;
• the alteration of any premises or plant;
• the introduction of such temporary measures as may be expedient pending the institution or completion of permanent measures; or
• with the written consent of the Minister, closure of the workplace.
Employers are under an obligation to report to the Labour Commissioner work place accidents which result in death or injury within and 8 or 24 hours respectively and thereafter a report outlining preventative measures and remedial action taken.
The Commissioner is empowered to direct employers or operators of work places to take special measures for the safety of the employees. The Minister has the power to extend the time required to comply with the requirements of the Code and also to make regulations prescribing standards to be adhered to in the operation of the workplace.
Failure to comply with this Part will result in criminal penalties in relation to each employee affected and the Court has the power to order remediation of the contravention.
Part 15 – Work Permits
This Part maintains the work permit requirements for persons who are not belongers of Anguilla. The administration of this Part of the Code is governed by some underlying principles which include:
• The responsibility of the Minister of Labour for ensuring that belongers of Anguilla are engaged in gainful employment as a paramount consideration to all matters pertaining to work permits; and
• The recognition of the invaluable contribution to the development of Anguilla by persons who engage in employment on work permits which requires that the Ministry through a balancing act develops policies that attract and foster the talent of persons who are nonbelongers.
The Minister of Labour is empowered to grant, refuse, revoke, renew, vary or extend work permits. There are 3 categories of work permits – general, temporary and self-employed. The Minister can make regulations restricting the issuing of work permits for certain sectors or trades where he/she is of the view that the skill set in no longer necessary, local business may be undermined or local talent should be developed. The Director of Economic Planning must also first consult with the Ministry before granting business licences.
There are several categories of persons exempt from work permit requirements. These include children born in Anguilla (who may not be belongers of Anguilla) and spouses of belongers.
In considering work permit applications, consideration will be given to several matters including whether there is a genuine need to engage the perspective employee and whether efforts were made via advertising to recruit a belonger, spouse of a belonger or a person legally resident in Anguilla. Minister can exempt an employer from the advertisement process where he/she is aware that the skillset is not available or that it is unreasonable to do so based on the circumstances of the application.
A work permit issued for a professional, managerial or skilled occupation may be subject to conditions that (a) the employer develops and submits an employee training or understudy programme to the Ministry, or (b) establishes a scholarship programme or contributes to a scholarship fund, or (c) the permit will not be renewed beyond a specified period.
Work permit holders are not compelled to live with their employers; they are entitled to retain their travel documents and they have all the rights and benefits conferred by the Code.
Part 16 – Trade Unions and Employers’ Organisations
This Part is not applicable to the Royal Anguilla Police Force. It outlines the rights of employees to join trade unions and take part in their activities and protects their freedom of association from the interference of employers. Infringement of employees’ rights in this regard may be dealt with by the Tribunal. The registration requirements for trade unions are outlined as well as guidelines regarding the content of their constitutions. There are specific procedures in relation to the alterations to the trade union’s constitution or name, filing of annual returns, amalgamation, cancellation of registration and winding up. Where a trade union acts in furtherance of a trade dispute, it will not be liable in tort, nor for interference with an employer’s business, nor for conspiracy (so long as no criminal offence was committed). A duty is imposed on trade unions to have a registered office, safeguard and not misapply funds, and keep proper accounts which must be audited.
There are extensive provisions with regard to the procedure for recognizing trade unions as the bargaining agent for a group of employees (bargaining unit). This includes application, consideration by the Labour Commissioner, recognition or objection by the employer, certification by the Labour Commissioner (including conducting of a poll if necessary). Once certified, the union has the right to bargain on the employee’s behalf and must be given due recognition by the employer. The union and employer can then enter collective agreements in relation to matters affecting the employees, which are binding on all parties including the employee. Collective agreements continue in force when a business is sold, leased, transferred or otherwise disposed.
Part 17 – Miscellaneous
Offences under the Code cannot be prosecuted after the expiration of a year from the date on which the Labour Commissioner is notified. The Minister of Labour is empowered to make regulations to give effect to the provisions of the Code. There are provisions which deal with court process such as disclosure of information, electronic documents and links. The Code also preserves the schedules to the Acts which are being repealed.
