FRANKLY SPEAKING: Stop this unlawful payment method
A desire by lawyers to win as opposed to a desire to do what is right has caused many pieces of legislation that were intended to benefit workers to fall short on implementation. One such piece is the little known and even less cited Protection Of Wages Act. That act had its genesis in the International Labour Organization’s (ILO) Protection Of Wages Convention 1949 which was adopted by that body on July 1 of that year.
It is interesting to note that paragraph 2 of Article 19 provides that the convention shall come into force 12 months after the date on which the ratifications of two members have been registered with the director general and, that it actually came into force on September 24, 1952. However, before ratification and enforcement, the Government of Barbados went ahead and passed into law the Protection Of Wages Act 1951-64 that legislated most of the requirements of the then proposed convention. It came into force in this country on November 12, 1951, clearly showing the urgency Government attached to wiping out the abuse of workers.
One of the most significant aspects of the act is that it outlawed practices where employers would send workers to collect over-priced groceries from shops that were owned by the employers, instead of paying them money. Also, plantation workers would sometimes receive part payment of their wages in produce like yams and sweet potatoes. That prohibition was expressed in Section 5 of the act in these terms:
Except where otherwise expressly permitted by this act, the entire amount of wages earned by, or payable to, any worker in respect of any work done by him shall be actually paid to him in legal tender, and every payment of, or on account of, any such wages made in any other form shall be illegal, null and void.
The exceptions referred to in Section 5 were part of the amendments made by Government in 1975, at the urgings of the ILO, to bring our act in conformity with the convention, and can be found at Section 13 of the Protection Of Wages Act, which states:
13. (1) Notwithstanding anything contained in this act, an employer may by contract or by agreement with a worker pay wages to the worker as remuneration, in addition to any monetary wages, allowances other than monetary allowances in accordance with subsection (2).
(2) The allowances referred to in subsection (1) shall –
(a) be of personal benefit to the worker and his family;
(b) be of fair and reasonable value; and
(c) not be in the form of noxious drugs or intoxicating liquor.
Some unscrupulous employers, aided and abetted by their lawyers, have misinterpreted Section 13 to permit workers to be compensated with time off for overtime work that was actually done. Before the amendment it was customary for some employers to provide housing for certain categories of workers, but the original act had absolutely prohibited this type of remuneration.
The 1975 amendment merely regularized that practice since housing would be of personal benefit to the worker and his family and was therefore allowed by the convention.
My opposition to giving time off as compensation for overtime work is well known and I have been approached by two lawyers trying to convince me that time off would be of personal benefit to the worker and his family. My reaction is simply this: how can an employer be so presumptuous to consider that a worker’s time is an asset owned by him that he can use as remuneration? The days when employers owned workers and consequently their time has long passed. Prior to 1951, plantation owners would pay in yams and sweet potatoes but at least the produce belonged to them. Now we have major employers taking us back even further by paying wages with something (time) that does not belong to them.
Bear in mind that overtime is usually paid at one-and-a-half times the normal rate. Let’s assume that an employee worked eight hours overtime – he would be entitled to receive payment for 12 hours. Even if time off was a perfectly legal payment method, how can it be fair and reasonable to compensate the worker with eight hours off for something that is valued at 12 hours.
The unlawful private sector payment method of giving time off for work actually done stems from a practice in the Public Service of giving officers, who worked on bank holidays, a day off in lieu, because it is believed that the Protection Of Wages Act does not apply to government workers. But a careful look at the act, convention and Hansard report of the 1975 debate would suggest that Government’s practice of giving lieu days for work actually done is also unlawful.
The Hon. C. Edwy Talma, in introducing the amendment bill, said in part, as reported in Hansard at Page 5083 of May 20, 1975: “Now the amendments which we are seeking approval for today, will bring up to date the Protection Of Wages Act, 1951, in relation to Convention 95:
(a) To enable its provisions to apply to all persons to whom wages are paid or are payable.”
Also, Article 2, paragraph 1 of the ILO Convention states: “This Convention applies to all persons to whom wages are paid or payable.”
Further, the act defines “worker” as a person to whom wages are paid or are payable under a contract of employment. When the words of the convention, Government’s intention as reported in Hansard and the definition of worker in the act are read together, they show a clear intention for all workers, including public servants, to have equal protection under the act.
Time is ripe for Government to make a clear statement to restore the intention of the original legislation and the ILO convention so that workers can be paid money for work actually done. Mind you, I am not holding my breath, even though there are two labour parties in this country: workers don’t normally make campaign contributions. Need I say more?
• Caswell Franklyn is a trade unionist and social commentator.