The Caswell Franklyn Column – Widespread Misinterpretation of Employment Rights Act

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.

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22 Comments on “The Caswell Franklyn Column – Widespread Misinterpretation of Employment Rights Act”

  1. David May 21, 2017 at 5:54 AM #

    Good article Caswell very easy to follow. The rights of workers are being attacked and eroded daily and the prevailing economic climate makes it easy so to do.

    Like

  2. Caswell Franklyn May 21, 2017 at 6:15 AM #

    Thanks David. I try

    Like

  3. Bush Tea May 21, 2017 at 8:02 AM #

    The FACT is that workers have no real ‘rights’ …as Caswell knows.
    ‘Workers’ are no more than glorified serfs who are ’employed’ by profit focused employers to help them to get richer. We therefore have an environment where most ‘workers’ seek to do as little as is possible, while most employers seek to extract as much from them as is possible.
    Depending on your perspective, either the worker is being exploited …or the employer is being exploited …. or perhaps both are being exploited by the government.

    It is a fundamentally flawed system and it results from a lack of national vision that sees the enfranchisement of all citizens as a human and a national right.

    Businesses should – AS A MATTER OF NATIONAL POLICY, – be structured such that all employees, by dint of their labour and other inputs, increasingly become meaningful shareholders in ANY business in which they are employed.

    The vision should no longer be one of refining a Serfdom, but one of building an empowered society …where everyman is BOTH an employer AND an employee – with no need for people like Caswell…..who should be pursuing more substantial NATIONAL challenges such as BUP …. any damn how

    Like

  4. Well Well & Consequences Observing Blogger May 21, 2017 at 8:40 AM #

    Another huge problem in Barbados, everyone has a different interpretation of laws, rules, regulations etc….just as if english is not their first language…everything is misinterpreted and unreasonably so.

    Is the problem comprehension or small mindedness.

    Like

  5. Jeff Cumberbatch May 21, 2017 at 9:20 AM #

    …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.

    @ Caswell, I am not sure that the Executive Director was referring to section 10 as you suggest. I was under the impression that he was referring to Step 2 of the Standard Disciplinary Procedures under the Fourth Schedule where paragraph 2 (2) makes provision for the employee to be informed of his right to have a friend or shop steward present before the disciplinary meeting may be held.

    His beef is that some employees have been bringing a lawyer as that “friend”.

    Like

  6. David May 21, 2017 at 9:25 AM #

    Here is the article:

    bea

    BEC concerned there are too many grey areas in ERA

    0

    BY GAYNELLE MARSHALL ON 9TH MAY 2017TOP STORIES

    Nearly two years after it requested submissions on how to improve its controversial Employment Rights Act (ERA), Government is yet to take on board any of the suggested amendments made by the umbrella Barbados Employers’ Confederation (BEC).

    “We regret that we are yet to see any action to bring the necessary regulations, which are now urgently required to bring some balance to the current environment,” President Marguerite Estwick told reporters during a news conference Monday at which she joined with other BEC officials in complaining about the slow pace of State decision-making.

    Estwick also warned of possible fallout in terms of investment if certain “grey areas” in the Act were not urgently clarified.

    “It makes our environment very, very difficult and . . . as we position ourselves to compete for investment dollars, we need to look at it from that perspective,” she said.

    It was back in July 2015 that the Ministry of Labour had called on members of the public, as well as organizations, to submit comments, recommendations or concerns on the legislation so adjustments could be made to the legislatiion.

    In response, the BEC submitted a 14-page document last November outlining its concerns and recommendations, which have to do with the application of the law and the exclusion of what it deems to be important provisions from the measure.

    Further to its submissions, the BEC has also been lobbying for discussions on the ERA at the level of the sub-committee of the Social Partnership, which brings together employer, unions and Government.

    BEC Executive Director Tony Walcott (left) and President Marguerite Estwick.

    “We again ask that this matter be given top priority,” the BEC president urged on behalf of the over 200 members of the employers’ body, who she said continued to grapple with shifts in a legislative environment in which there remained “many ambiguities”.

    “It [ERA] has in fact increased and brought a level of a legal procedural element into the workplace that makes it very difficult for small employers who may not have dedicated human resources departments [or]highly trained human resources professionals to lead a process that has become very legalistic in terms of how the procedures have been set out,” she said, while highlighting customer complaints as one area of difficulty.

    While acknowledging that the ERA was a substantial piece of legislation with a significant impact on the operation of businesses in Barbados, BEC Executive Director Tony Walcott highlighted two sections of the legislation which he said were open to various interpretations and needed to be immediately clarified.

    These are Section 10 of the Act, which makes provision for a person to appear before the Tribunal with “any other person whom he desires to represent him”. Walcott said this section was often “grossly misinterpreted” with many individuals turning up with lawyers.

    The BEC spokesman also zeroed in on Section 26 (b) of the Act, which makes provision for an employer to dismiss an employee where “he is employed under a contract for a fixed term and that term expires without being renewed under the same contract”, saying it needed to be clarified, as it was “quite controversial”.

    Walcott explained that since the purpose of a fixed term contract was usually for a specific job, and with a number of jobs being done nowadays on a project-by-project basis, that section of the Act also presented some challenges for employers.

    “Don’t let us lose sight of the legislation, it was intended to secure the rights of the employee in the workplace. Sometimes too far left takes you right and I think there needs to be an adjustment in the swing of the pendulum. We need to get some balance into the process,” he stressed.

    The BEC is also concerned about the delay in the establishment of the minimum wages board under the Minimum Wages Act. And despite being proclaimed and coming into force in January 2013, the BEC said it was concerned that the Safety and Health at Work Act was still to be gazetted and to take full effect.

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  7. Jeff Cumberbatch May 21, 2017 at 9:37 AM #

    My sincere apologies, Caswell. You were correct. I simply did not believe that such a gross misreading of the plain words of the provision could have been done by Mr Walcott. Unless he was misquoted, it is, to use a favorite expression of mine,comparable to a clock striking thirteen at noon! You are likely wonder if it was ever right all morning or at all.

    Like

  8. Caswell Franklyn May 21, 2017 at 9:38 AM #

    Jeff

    That is probably what he meant, I don’t know, but he is quoted in the article referring to section 10.

    Even if he meant that, how would it be fair for the employer to have legal counsel available to them at the disciplinary hearing? I have had two instances where employees turned up for disciplinary hearings unaccompanied only to be confronted by a lawyer.

    Mind you, in all fairness to the lawyer, he insisted on an adjournment so the workers could be represented. (Same lawyer in both cases but two different employers).

    Also, I should be complaining as well. On several occasions meetings were adjourned because the employer did not have a lawyer when I appear to represent workers. I am not a lawyer and do not hold out myself as such.

    Sent from my iPad

    Like

  9. Caswell Franklyn May 21, 2017 at 9:44 AM #

    Jeff

    There is no need to apologise. I had your same reaction and had to double check.

    Sent from my iPad

    Like

  10. Jeff Cumberbatch May 21, 2017 at 9:44 AM #

    Not only that, Caswell. The word “friend” does not expressly exclude lawyers and the whole matter of termination is now juridified anyway. The employers or some of them want to retain the old managerial prerogative to dismiss how and when they like, but their actions in that regard are now subject to close legal regulation under the ERA.

    Like

  11. Caswell Franklyn May 21, 2017 at 9:49 AM #

    Jeff

    It worse than you think. Even when employers purport to follow the procedures set out in the Standard Disciplinary Procedures, they hear the case and then want to preside at the appeal.

    Sent from my iPad

    Like

  12. Jeff Cumberbatch May 21, 2017 at 9:58 AM #

    Incroyable! (Unbelievable!)

    Like

  13. George C. Brathwaite May 21, 2017 at 12:56 PM #

    @ Caswell

    A very thoughtful and clearly articulated article. Essential that you keep clarifying and educating.

    Like

  14. Kevin May 21, 2017 at 1:25 PM #

    1) With regards to “written statement of the particulars of the employment” one of my contracts had this statement: “Assist management on special tasks on an ad-hoc basis”. Another contract had this statement “Any other duties assigned to you by management from time to time”. This meant that along with the written duties of your job, management can pull you here and there to do this and that as they seemed fit? 2) Employers said that with this new ERA, employees have too much rights. So in that regard some good has come from the new Act. 3) It’s a new Act, there will be confusion in the beginning.

    Like

  15. David May 21, 2017 at 1:31 PM #

    No Kevin, your cuhdere mentality will not cut it. The length of time this bill and bouncing around to stakeholders in draft should have been enough time to filter many of the problems being experienced. A characteristic of excellence is getting it right the first time more oft than not. Too many errors made by this Government when it comes to implementing anything.

    Like

  16. Kevin May 21, 2017 at 1:35 PM #

    @David, the new ERA has been BETTER for employees……… Even if parts are vague, it has been better.

    Like

  17. David May 21, 2017 at 1:40 PM #

    @Kevin

    Would the NCC workers agree with you?

    Have the Mol and key stakeholders agree that the Bill needs to be amended?

    Like

  18. Kevin May 21, 2017 at 1:47 PM #

    Yes David, they would agree with me. They did not had a tribunal before and the tribunal is a great asset for the employees. Many rulings have been found in favour of the employees.

    Like

  19. Caswell Franklyn May 21, 2017 at 2:05 PM #

    The ERA is far better than what obtained prior to its coming into force. It had a very long gestation period, in excess of fifteen years when it was being discussed with stakeholders. The problem with the ERA is that it was opposed from the outset by both the Barbados Workers’ Union and the Barbados Employers Confederation.

    BWU was fearful that the ERA would diminish their power and put stumbling blocks in the way. On the other hand, the employers confederation preferred things as they were and found fault with anything progressive about the ERA.

    The present administration must be given some credit, they had enough of the delaying tactics from both the BWU and BEC and put something on the books. Is it perfect? NO! But it is far better than what we had.

    Is there a need for some amendments? Yes! But not the ones being proposed by the unconscionable employers.

    Do we need to gag Dr. Byer Suckoo? Yes, by all means! She speaks without first obtaining the relevant knowledge.

    Sent from my iPad

    Like

  20. David May 21, 2017 at 2:37 PM #

    @Caswell

    Why would employees agree IF they have to wait inordinately long for their cases to be heard IF at all?

    Like

  21. Bathsheba man May 21, 2017 at 4:30 PM #

    Food for thought….thanks Caswell et al

    Like

  22. Retribution-things that make me go hum! May 24, 2017 at 5:55 PM #

    Good on you Caswell! @ Kevin, these are funny times – The tribunal hearings and administration is set up by Government – Not anymore Sir.

    Like

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