OPPOSITION SPOKESMAN ON LABOUR

19 DECEMBER 2001

THE SENATE ON THE EMPLOYMENT BILL

Mister President, I had to laugh yesterday and I laughed all night long when I thought of the remarks made by Senator Ronald Knowles in response to my intervention yesterday. He accused me of having a purely political motive. That is of course untrue but it was an inventive though lame attempt to pollute the issues. But what goes around can quite quickly comes around. I accuse himself and his Government of doing the same thing this afternoon, dragging us here at short notice at Christmas time, something the Prime Minister promised he would never do when he changed the fiscal year from the calendar year, to debate this bill. It is all about politics. All about trying to establish a legacy. The bills provisions are to come into effect on 1 February. Now I wonder why February. Could it have something to do with the fact that a general election is coming and the Government wants to fool the public that they rally care about working people in this country?

And so having dumped all over the unions, all over working people, treating them with contempt for nine long years, the FNM comes like a wolf in sheep’s clothing just before Christmas trying to fool people that they really have a concern for working people. The people of The Bahamas are not fooled by this. This won’t help them.

This bill is problematic. It is well intentioned, and it is being imposed upon a business community and the unions without much happiness. No doubt the right wing think tank the Nassau Institute will have much to say about the costs being imposed by this bill.

The Bill is what we would call a consolidating statute, in that it consolidates much of the existing law of employment into one Act. But it also repeals certain provisions of the old law, and changes the law on dismissal that appears to abolish the common law position on wrongful dismissal. It creates a statutory based right not to be unfairly dismissed, and it gives the employee who believes he has been dismissed unfairly the right to go before an Industrial Tribunal with a view to getting compensation.

The compensation is no longer to be based on the common law position of reasonable notice or what you agree in your contract alone. Instead, there are to be certain statutorily based provisions that one supposes for employers adds a bit of certainty since they will know exactly what they face in circumstances where they dismiss an employee.

An employee can be dismissed by reasons of redundancy. This is a concept now statutorily defined in Bahamian law. An employee can also be dismissed with notice. An employee can also be summarily dismissed. The summary dismissal provision in Clause 31 now replaces the common law position but unfortunately it keeps the same retrogressive standard of honest and reasonable belief on a the balance of probabilities. I think the standard should be the criminal standard of beyond a reasonable doubt. It makes it too easy to dismiss employees based on accusations that later turn out to be totally false.

There is now also to be a statutory right to sick leave. That entitlement is one week per year in Clause 11.

There is also a right to a vacation, taken over from the Fair Labour Standard Act, that gives the right to two weeks vacation per year, after 12 months of employment. The vacation pay of the employee must be paid, the day before he or she goes on holiday. That can be found in Clause 12 of the Bill.

There are provisions that seek to end discrimination on various grounds including gender but I think it also needs to include place of national origin to somehow preclude the discrimination against Bahamians in this country by the financial services sector in particular.

As a consolidating statute, it now includes the provisions of the following acts: The Truck Act, Contract of Service Act; Employment of Children Prohibition Act; Employment of Young persons Act; the Fair Labour Standards Act; the Female Employees (Grant of Maternity Leave) Act

But the new provisions for redundancy, for termination with or without notice, for sick pay, for family leave, for pregnancy leave all need to be studied in detail by the human resources departments of all employers.

The most radical change will of course be the proposals for the change in the time of work when the overtime provisions will kick in. The Government now proposes a forty hours work week. I do not oppose that having moved to that position already in my own office.

Those provisions will first kick in on 1 February at 44 hours per week after which over time kicks in and then on 1 July when the 40 hours work week kicks in.

I have difficulty with the redundancy provisions and the dismissal provisions with notice. Under the formulations expressed in the bill the cap in the case of pay in lieu of notice is going to be 48 weeks in the case of a supervisory person and 24 weeks in the case of line staff. See Part VII of the Bill. That erodes the common law position that would have allowed in some situations up to 18 months pay in lieu of notice.

What is important is that the Bill allows for better conditions to be obtained by the person negotiating a better contract.

The law is right now silent on the question of mitigation of damages. It does not expressly repeal the common law on the point, nor does it address it. So the question is: will there be a requirements for a dismissed employee to mitigate their damages once dismissed? Must he go out and find another job and if so will the wages be deduced from the monies he is entitled statutorily to get. I would argue that since this is a statutory entitlement, then no mitigation of damages will be involved.

If one looks ta the provisions on pregnancy leave. I wish to point to clause 17 of the Bill that requires a medical practitioner or midwife to issue a certificate to be brought to the attention of the employer confirming the pregnancy. This is the same as in the existing law. The importance of this is that many female employees do not realize that they must provide this certificate in order for these provisions to obtain. If they do not provide the certficate they are not protected from being dismissed during their pregnancy. It seems to me that this often works an injustice on the employee and Parliament must look at ways to rectify that. That is why it is so important for there to be properly developed human resources departments to acquaint employees of their rights in these matters.

It is important to note that clause 3 of the bill make this of general application to all employers including the Government. I must say here that the Government has amongst the worst industrial relations and human resources practices in the country. This is all the more glaring because the Government is the largest employer, and further many private sector employers look to the Government to take the lead on practices toward employees. Further Government workers are in a special category of workers that are governed by a statutorily based code that is specifically enforceable. Yet, Government workers are amongst some of the most ill informed of their rights as employees, and amongst the most abused. The favoured abuse is sending people home with nothing to do but on the public payroll.

There is a great deal of arbitrary behaviour in Government employment practices that must cease. Nowhere is that case more clear than in the case of the Air Traffic Controllers but there are many many other who suffer daily from arbitrary behaviour in the Government service.

Perhaps this bill will go a long way to rectify some of the situations that now obtain where people are fired without any recourse whatsoever. One thinks for example of the employees of Sun International who were given a letter on 24^th September, a copy of which I will lay on the table of this house. I raise this because I am very suspcious of the use of 11 September as a device to get rid of employees at Sun International. These employees were given a choice, either treat themselves as fired or accept a 90 day lay off, with no pay and limited benefits. And some of the employees of long standing were made to sign contracts that if they treated the contract as at an end, they would only be entitled to two weeks pay in lieu of notice.

In my practice we have had several individuals come to us who are prisoners of these unconscionable contracts by Sun International. What they did was promote Bahamian employees to higher positions with increased pay when they took over from Resorts International. But they said to them, you must sign a new contract of employment. What many of them did not know was that in signing the new contracts, they were giving up their rights under the common law for a longer period of notice or pay in lieu of notice. In some cases some signed these contracts, knowing that was the case, but Sun said to them, either sign it or be dismissed, so to have a job they kept it. I consider those contracts to be unconscionable, and one of the effect of this legislation one hopes is that it will override the contracts that Sun now has with the employees.

I must really say God Bless You for the Hotel Union. The Union is the protector of those hotel workers at Paradise Island. But the climate in the country has become so anti union that Sun and Crystal Palace have developed a kangaroo court system in dealing with employees at their establishments.

The owner of the Crystal Palace acts like this is the wild wild west. He simply makes up the rules as he goes. He walks into the Crystal Palace and if there is an employee who offends him he simply dismisses the employee on the spot.

Another employee of the casino was fired because she wore corn rows. Sun International went even further and got its employees to sign contracts agreeing that they would not wear braids, corn rows, dread locks and buds. This is in clear violation of the rights of these workers. But again, they are told either sign or be dismissed. In one sense you can see someone imposing that term on new employees but not someone’s existing contracts. And to do so under the threat of dismissal is worse.

What we can say is that in our dealings with the Crystal Palace, it has a much better developed human resources area, and most disputes over dismissals can generally be agreeably settled or if we appear before a tribunal are narrowly legally defined and we are more often than not successful.

But Sun International and its lawyers must be criticised for being the most hard hearted, impervious, anti-labour cabal in the country. The only one that has managed to outdo Sun in bad labour practices for the year is C.A. Smith the Minister of Transport.

You wonder Mister President where these mean spirted people live. They have an internal arbitration system but many employees complain that it is only that in name. The Human Resources area at Sun is generally cold and unresponsive, mean spirited.

Hopefully, this act will do something to reform the practices of Sun International.

It is even worse if the matter has to be litigated in the Courts or at the tribunal. Their lawyers seem to makes their money at stretching out matters unnecessarily. They take appeals that are plainly hopeless on the face of it, but do so knowing that most employees can not face the expense and cost of an appeal. And what is even worse is that you have a court that also appears to be hostile to the rights of workers. The employer is always right.

The Government itself, of course, has set the pace for Sun International and the Crystal Palace to follow. The Minister of Labour, the present one Earl Deveaux and the previous ones under this administration have been dilatory, and seem to bend over backwards to make sure that employers always have the advantage over the workers in the country.

One remembers the silly technical and false points raised by the then Minister of Labour Theresa Moxey Ingraham when the Union at the College of The Bahamas sought to get a strike vote scheduled. The provisions of the law are clear. All you do is give the requisite notice that the vote is to be scheduled and the Department must come to supervise the vote. That Minister wrote a letter saying that because no impasse had been declared, the vote would not be scheduled. The law gave her no such right. It gives no such right. Yet what does the Union with small resources do in the face of unlawful behaviour? Unlawful behaviour by the Government? They simply can’t afford to do any better, so they have to accept the unlawful behaviour of the Government. And it works unfairly to the benefit of the employer.

And then you have the absolutely disgraceful performance by the present Minister of Labour in his dilatory approach to recognising the Union representing the workers Barclays. This recognition was taking so long that the workers at Barclays thought that the Minister was in cahoots with the employers to frustrate the Union until the merger of Barclays and CIBC came about to form this new entity called First Caribbean.

There was a public demonstration scheduled. And then after months of jerking these people around, yanking their chains, the Minister decided to do what the law clearly said that he must do, he recognised the workers union of Barclays.

We promise that with the PLP as the Government, you will have an even handed Minister of Labour who will follow the law. No arbitrary behaviour from us.

Further, we again call on the authorities in this country to carefully scrutinize the proposals of Barclays and CIBC before regulatory approval is given to them to merge these banks. First, I think that the merger is anti-competitive. But it is already clearly anti-labour. Notwithstanding what CIBC and Barclays are saying they are engaged in the worst form of abuse against employees. The employees at both CIBC and Barclays say that working at their places of employment is no longer a joy but a burden. Everyone is walking around on egg shells. They don’t know from moment to moment when they are going to lose their jobs.

CIBC in particular has developed the art of firing peel for nit picking little reasons to a fine art. And their General Manager’s actions on anything to do with workers at CIBC is unworthy of trust. It is outrageous the abuse that these employees at these establishments must take from CIBC.

When the merger was announced both CIBC and Barclays said that there would not be layoffs. But since that time and in the lead up to the announcement workers saw signs of lame excuses being given to get rid of long standing employees.

I believe that the atmosphere in the country toward workers must change. That atmosphere must be conditioned by what is done at the top. One hopes that this Bill which we will not oppose assists in changing that atmosphere. But at the end of the day, it is not the laws that we write that will make the difference, it will be the people who administer those laws. Hopefully, this Government will never again geta chance to misapply laws that they will soon be consigned to the scrap heap of history where they belong– they their leader , their leader designate and deputy leader designate. All of the above to the political scrap heap.

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