By Human Resource Professionals of Antigua and Barbuda (HRPAB)
Sunday work and the compensation for work performed on Sundays have become a topical issue within recent times. Compensation offered in respect of Sunday work may not have strictly complied with the intent of the law; however, the Labour Code is clear on the matter. Cap 354 of the Laws of Antigua & Barbuda “The Public Holiday Act of 1954” stipulates that Sundays are public holidays. C 15 (2) of the Labour Code indicates that … in addition to any wage which he would have received in respect of the public holiday, an hourly rate of not less than 150 per centum of his basic rate per hour worked.
What is equally clear is that work has changed in the decades since the Labour Code became the law. In a heavily service-oriented economic climate, and one in which tourism accounts for 65 percent of GDP, Saturday AND Sunday work have become an integral part of modern economic activity and viability in Antigua and Barbuda and the Caribbean. The advent of the gaming industry in Antigua & Barbuda expanded the pool of employees who work nights and weekends. The advocacy of the Antigua & Barbuda Workers Union has pushed the issue of Sunday work to the forefront of the national discourse. A review of the provisions of Cap 354, following a consultation with stakeholders is vital and necessary at this time.
Section C5 of the Labour Code requires that employers furnish new employees with all terms and conditions of employment within ten (10) days of employment, including but not limited to regular hours (days) of work. Occasionally, during the interview stage of recruitment, an uninformed recruiter may ask a prospective employee about his/her religious beliefs. The reason behind these questions is usually to determine an employee’s availability to work certain days or hours of work before they offer employment, and not to engage in discrimination.
HRPAB strongly discourages any line of questioning regarding religious beliefs, which may open the employer to claims of discrimination on religious grounds. HRPAB recommends instead that HRM’s should discuss work schedules, and inquire whether the prospective employee is willing and/or available to work on these schedules.
If recruitment moves to the stage where the employer makes an offer of employment, the offer letter must clearly outline the regular hours of work in accordance with C5 (b) of the Labour Code. Employment policy must require new employees to indicate their acceptance of the terms and conditions of employment, by signing their offer letters. Once the terms and conditions the employer offers do not conflict with established collective agreements, and once the employee accepts them, the terms are binding.
Therefore, where an employee agreed to perform duties on a Saturday or Sunday, which may thereafter hinder his/her ability to worship on the day of choice, the employer may enforce compliance with the terms and conditions to which the employee agreed. Tonge versus Antigua Barbuda Investment Bank is a matter settled in the Industrial Court of Antigua and Barbuda which addressed this issue.
What is more difficult to manage are the instances where an employee’s religious observances change after acceptance of the original employment terms. Religious observations in the employment context may affect matters including but not limited to moral and ethical concerns, hours and days of work, appearance, dress, hairstyle and diet. The most common accommodation requested nationally relates to days/hours of work: for example, when an employee, due to religious beliefs, declines to work on a particular day or time (Seventh-day Adventists and Saturday work). That form of accommodation is the focus of this editorial. What should a caring employer do? To what degree can an employer accommodate the needs of a single employee, particularly in the context of a team? Are accommodations fair to the rest of the team? Should we worry that if we accommodate a single employee we will be flooded with similar requests, which will become difficult to manage? The Human Resource Manager (HRM) should consider the following:
- Is a reasonable accommodation to the affected employee’s work schedule possible without creating a hardship for remaining team members or disrupting operations? The HRM should treat each request for accommodation on religious grounds individually, and based on its own merits. He/She must treat the employees respectfully, and with empathy.
- The HRM should attempt to quantify the cost of accommodation. Will excusing the affected employee result in incurring overtime, call-out allowance or an inequitable allocation of unfavorable shifts to the remaining team members? Will it mean reassigning the affected employee to a department where no vacancy existed? What about replacement recruitment cost? How difficult will it be to recruit the particular skillset needed?
- Communicate! Discuss the request with the team. There may be employees willing to exchange shifts to accommodate their colleague’s religious observances. Discuss with Shop Stewards when operating in a unionised environment. Through dialogue and willingness to accommodate, the employees will recognise the employer’s caring attempts.
- Document! Employer and employee should document the agreed on accommodations. However, accommodation is not always practical. Where no accommodation is possible due to cost or other reasons, the HRM should communicate this swiftly to the employee, providing the reason(s) that no accommodation is possible. At this point, the HRM should clearly outline the employee’s options.