Feature: The Employment Rights Act

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When the Employment Rights Act (ERA) was proclaimed on April 15, 2013, it signalled the introduction of concretised rights for workers and established definitive ways of doing business for employers, enshrining what had long been custom and practice into law.

However, the arrival of this new legislation has raised various concerns from both workers and employer camps. Some of these queries were addressed when a tripartite panel comprising Labour Minister, Senator Dr. Esther Byer Suckoo, Deputy General Secretary of the Barbados Workers Union, Toni Moore-Bascombe, and human resource professional/CEO of Earle Global Alliance, Peter Earle – spoke to members of the public about the Act at Messiah???s House Church, St. John last month.

Calling the Act ???a revolutionary piece of legislation??? which was decades in the making, Minister Byer Suckoo observed that it had been made more urgent with the focus on decent work and the increasing presence of foreign interests in Barbados??? business landscape.

???When [foreign entities] come to Barbados the first thing they do is study our laws. Before, there was such a paucity of legislation that spoke to employment rights??? Most of what happened before happened by custom and practice, but we realise that that can???t fly anymore??? We???ve given employers six months, to October, to put all the paperwork in place. We don???t want to make this too onerous for employers???It???s just about bringing best practice into the workplace,??? she said.

This paperwork is tied directly to the rights listed in the Act, which include: the right to a written statement of particulars of employment; the right to a written statement of particulars of the payment; and the right, where employment has ended, to a certificate giving particulars of the employment, including where the employment ended by dismissal (should the employee so wish), and a statement of the reasons why he/she was dismissed.

Senator Byer Suckoo observed that many employees only realised the importance of work details such as where and for whom the individual works, the hours of work, the duties, when and how payment is administered, vacation time and pay ???when they had a concern or complaint which required the Labour Department to investigate.

???When you have your statement of particulars, it???s supposed to say that you, with your name, your address, etc., are working for and hired by ???Mr. B??? of such and such a company, and by putting it on that piece of paper, that person is responsible for paying you – that becomes a legal document,??? the Minister said, noting that this served to protect both employer and employee. ??The same principal applied to having an itemised pay statement, with the Labour Minister stressing that receiving ???an envelope with some change in it???, with no proof of where deductions were going, was not ???good enough???.

?????? When some persons are terminated and they go to [National Insurance] NIS for unemployment benefits, NIS has never heard of them because nothing has ever been sent… By putting it in writing you now have a case,??? she noted. The importance of having paperwork which offers proof of the details of work was echoed by Mrs. Moore-Bascombe, who explained that the legislation was progressive and should address some of the major concerns employees held.

???When we go to a meeting with an employer, the employer often expresses a different understanding of what the worker???s job is [than the worker]…what the legislation does is level the playing field???An employer now has to give a job description which the employee will sign on to,??? she added.

One area where Mrs. Moore-Bascombe said the legislation was especially appreciated was the process of dismissal. She noted: ???When terminations are being contemplated, before the Employment Rights Act, a notice period of four, two or one week was normal in the case of monthly, bi-weekly or weekly paid…

???But, what the act does is specify how notice should be allowed???because if you were a weekly employee and you were employed by a company for 15 years, [it???s not fair] that if they make you redundant they only give you a week???s notice???The Act ties notice periods to years of service,??? she explained, adding that unions were also pleased with other inclusions, such as consultation prior to redundancies and the establishment of an Employment Rights Tribunal to facilitate dispute settlement.

Although the ERA speaks specifically about rights for the employee, human resources professional, Mr. Earle acknowledged that the Act catered to business owners as well. He stated that ???as a consultant [who helps] persons to become compliant, you go to companies and you find they don???t even know the date when people started to work, you don???t have that documentation???that is one positive thing in relation to what the Act says.???

The human resources consultant noted that, where the statement of particulars was concerned, it was crucial for elements that were not part of the work package to be included, such as the absence of a pension plan. He said, however, that in the case of pre-existing practices, they should be formalised.

Mr. Earle added that it was also important for documentation to be updated to include any amendments, which would be agreed upon by both employee and employer. ???The contract is not a unilateral document; one person can???t make a decision. If you want to make a change, for example, with working hours, you???ve got to discuss it with the employee and reach an agreement???and then the employer has 30 days in which they can submit a change of particulars,??? he explained.

Similar rules apply to any collective agreements, with the consultant noting that, while such agreements were not legally binding on their own, ???now, with the inclusion of that in the Employment Rights Act, it becomes binding once it is included in the terms of the contract of employment. If there is a collective agreement, you need to indicate that it is part of the terms and conditions of the employment contract,??? he said.

Mr. Earle observed that there are some areas of the employee/employer relationship that would benefit by being included in legislation; and while all the panel members agreed that the Act was not perfect, they maintained that it was the first step in the right direction to enabling a fair work environment in Barbados.

The Employment Rights Act panel discussion, A new ERA for Barbados, three-part series, may be viewed HERE.

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