The recent amendments to the Labour Code debated in the Lower House of Parliament as it relates to the Division C7 and Division C44 of the Code, as well as Section 176 of the Banking Act, are timely and necessary.
The Antigua and Barbuda Labour Code was enacted in September of 1975 and was the final product of an exercise which, according to Division A2 of the Code, was to “bring together all legislation applicable to employment, employment standards, and industrial relations in Antigua and Barbuda.” Primarily, Division A2 sets out:
(A) employers and employees can more expeditiously ascertain information as to their rights and responsibilities
(B) persons inside and outside Antigua and Barbuda considering the investment of funds in enterprises to be based in Antigua and Barbuda will have a centralized source of information as to the rights and responsibilities of management and of labour; and
(C) legislation can be more amenable to revision when revision is appropriate.
At the time of enactment, and for many years (perhaps up to this time), the Labour Code was the model labour legislation in the Caribbean and was the envy of many countries in the region. Like any piece of legislation, the Antigua and Barbuda Labour Code would require partial or comprehensive amendments from time to time. Over the years, several amendments have been made. However, there is a need for continued updating and amending based on social, economic and other factors – including the industrial relations climate – and to bring clarity to sections of the Code that may appear to be ambiguous.
The recent amendments have generated interest from many quarters, including the Employers Federation which voiced its concerns in the editorial of The Daily Observer newspaper of April 5, 2019.
Let us look at the current sections of the Labour Code which are being amended, how they were intended to be applied versus how some persons have applied them, and why there is a need for amendment.
The Antigua and Barbuda Labour Code currently allows for fixed term employment contracts, a provision which has been abused, particularly in recent times. I am convinced that the framers of the Labour Code did not intend for fixed term contracts to be given for job functions which are of a long-term nature. The framers of the original provisions of the Code understood that from time to time there would be specific functions which employers would need to have done which would have been of a short-term nature. The law was framed to allow for such type of employment as it would not have been prudent to force employers to engage employees for an indefinite period when the job functions would be available only for a short term.
Over time, some employers saw the current provision as a loophole to allow them to offer short term contracts for job functions which they knew would exist for as long as the business would be in existence. Such employment practices are unfair and run contrary to the underlying principles of the Labour Code. These practices also place employees at significant disadvantages, as some employers do not allow fixed term employees to be part of workplace benefits such as pension plans – even when they are employed for many years. It is a practice that needs to be discontinued.
Let us now examine Division C44 of the Labour Code and its varied interpretations. In my written opinion on the right to severance pay which was published in The Daily Observer of March 5, 2019, reference was made to the Tommy Joseph/Quality Builders matter which was heard in the Industrial Court here in 1983 and the Chevron matter heard by the same court in 2011. It is known that the Court ruled differently in both cases on the matter of the right to severance pay. In the Quality Builders case, the Court ruled that the employees had a right to severance pay. In the Chevron case, the Court ruled that the employees did not have a right to severance pay. Their years of service with the predecessor employer were carried over to the successor employer. The judgement in the latter case was due largely to the court’s interpretation of C44 of the Labour Code which was that there was not a case of redundancy as the employees were not dismissed. It is my view that that interpretation is flawed as it would put C44 of the Labour Code in direct conflict with Section 6 of the Antigua and Barbuda Constitution which prohibits forced labour.
The Employers Federation raised several concerns which, to my mind, are easily dispelled. The first concern raised was on the question of contract workers. It appears that the Federation is suggesting that only managers are currently employed on fixed term contracts. The practice of engaging employees at all levels on fixed term arrangements is widespread.
When the amendment passes through both Houses of Parliament as proposed, it would be applicable to all employees including managers, and any employee whose fixed term contract amounts in aggregate to one year or more would be considered a full-time worker. It is also understandable that fixed contract work is necessary when the substantive holder of a job is on leave. It cannot be considered that a person employed on a short term to fill in for an employee on leave is in a permanent position.
As for the question of employment being broken and an employee given a “rest” between contracts, this is addressed in C7 (a) (5) of the bill which is clear that the renewal of a fixed term contract on two consecutive occasions after the initial issuance will make the employee full time.
The position of the Federation on C44 is vexing: they stated that “job retention should take precedence over the name of the employer.” The issue regarding the amendment to C44 is not about the name of the employer. It is about a complete change in the ownership of a business. It is about the right of workers to decide for whom they will work, just like the employer has a right to decide who they will employ. It is about a fundamental right not to be sold as part of a business like a piece of furniture or equipment. It is about the right of protection against forced labour, guaranteed in Section 6 of the Antigua and Barbuda Constitution, ILO Conventions 29 and 105, as well as Section 23 of the United Nations Human Rights Charter.
The proposed amendment does not in any way prevent the successor employer from employing any of the employees of the predecessor employer as new employees, or from offering them employment with their years of service carried over and the right to severance pay at some subsequent time. The proposed amendment covers all possibilities. It is ensuring that there is no ambiguity as to the right to severance pay, and that the question of human decency and dignity are respected and maintained.
The Federation claims that the definition of redundancy would need to be redefined. However, there is nothing in the bill, as proposed, which requires any amendment to the definition of redundancy. If, as a result of a business being sold (there is a completely new employer), it is obvious that there is a closure of operation on the part of the predecessor employer. That being the case, it means that the employment of the employees of the predecessor employer would automatically come to an end. That constitutes redundancy as currently defined in Division C3 of the Labour Code. The jobs and functions of the employees would have been with the predecessor employer and would cease to exist. The employees worked for the predecessor employer and are considered redundant.
On the question of consultations, I can recall that there was a process to review the entire Labour Code which was done a few years ago involving the National Labour Board which comprised representatives of the trade unions, the government and the Employers Federation. There were also public consultations at the time. Substantial changes were agreed to by the tripartite body. One member of the tripartite grouping then decided that it was not in agreement with what it had agreed to and came up with a set of new positions which effectively brought the process to an end. Protecting the rights of employees in this country is the right thing for the government to do. It is troubling to hear persons promoting the notion that there should be a restart to the process of amending the Labour Code.
It appears that the Employers’ Federation is only attempting to interrupt the government’s decision to bring clarity to areas of the Labour Code which are being abused by unscrupulous employers who continue to use perceived loopholes to abuse their employees.
There is not much to be said about Section 176 of the current Banking Act other than it too is unconstitutional if given the interpretation that some persons are giving. That interpretation is that the employees of a bank which sold its business can be carried over to the buyer of that business without their agreement, and that any employee who does not agree loses his/her right to severance pay. If this interpretation is accepted, this piece of legislation will conflict with Section 6 of our Constitution as well as our obligations under the relevant ILO conventions and the United Nations Human Rights Charter.