Court finds Immigration Department in breach of workers’ rights

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For more than two decades, the Immigration Department has been breaching the rights of its workers by not paying for sick days, holidays worked and overtime. This is according to a ruling of the Industrial Court which says the Department must pay the workers a sum to be worked out.

The nine-page judgment by the court’s president Charlesworth Brown and members St. Lawrence DeFreitas and John Benjamin was finalised on August 26.

Yesterday OBSERVER media secured a copy of the ruling, which comes more than two years after the initial claim was filed in May 2017.

According to the record of the court, the claim was amended in November 2017, and in it the workers identified their main issues to be related to unpaid holiday pay, unpaid overtime, duty allowance and sick leave, in keeping with standards set out in the Collective Bargaining Agreement signed on behalf of the workers by their representative, the Antigua Trades & Labour Union (AT&LU) and the Immigration Department.

The workers argued that they are non-established workers of the government and therefore the Agreement covered them in the areas above; therefore the Immigration Department ought to honour Sections 5 and 11 of the Agreement and Section 15 of the Antigua and Barbuda Labour Code.

Section 5 states that “payment for public holiday shall only be made if the employee has worked on the scheduled work day immediately preceding, as well as on the scheduled work day immediately following the holiday. Declared Public Holidays shall be recognised as Public Holidays.”

Section 11 states, “Any employee who has passed his probationary period shall in any calendar year following the commencement of his employment be eligible for twenty eight (28) working days sick leave with full pay and an additional three (3) months from 17th February, 1993.”

With respect to the Labour Code, Section 15 (1) outlines that “If an employee does not work on a public holiday, he shall suffer no loss of pay, that is, he shall be paid the basic wage he would have received for work performed on that day had it not been a public holiday provided that he has worked his scheduled work day immediately before and his scheduled work day immediately after the said public holiday.” Subsection 2 adds, “If an employee does work on a public holiday he shall be paid, 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.”

Having regard to the collective bargaining agreement and the Labour Code, the workers asked the industrial court to order compensation for earnings loss as a result of the breaches, and it also asked the court to direct the Immigration Department to desist from committing further violations, as well as to accept that the workers are in fact non-established workers of the government and therefore they are covered by the said agreement.

The court agreed with the workers’ arguments and declared that the Immigration Department has to pay the workers for the past breaches from September 1, 1994 to January 14, 2015 which was when the workers were being given one day off in lieu of working on a holiday.

The Immigration Department also has to pay the workers from January 2015 to date, which was the period when they increased the days off to two in lieu of payment for holidays worked.

Payment also has to be made for overtime which was not being paid, contrary to Clause 3 of the Collective Agreement. It has not yet been declared whether the Immigration Department plans to appeal the ruling.

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