Some employers still ignoring our labour laws
For some time, I have been promising myself to write about the labour laws of this country which, for the most part, are either unknown by employers or are being observed in the breach.
Whenever I started to write, something would always come up that I considered to be more urgent and labour laws would find the back-burner. This matter jumped to the fore when a young man came to my office seeking assistance after his services were terminated, by mail, while he was on vacation, and his job advertised in the newspapers.
After listening to his story, I was able to point out that his former employer had been in breach of no fewer than ten provisions of our labour laws. I therefore decided to wait no longer since I do not want any more defenceless workers to suffer through the malpractices this young man experienced and what his former workmates continue to endure.
I wish that I could name and shame this particular employer but sadly, that would not get past my editor. My next option, and in hindsight the preferred one, would be to highlight the relevant provisions of our various labour laws in the hope that workers would become aware of their rights.
Recently, the Government brought into force the Employment Rights Act and the Safety And Health At Work Act that gave workers reasons to be optimistic about their terms and conditions of employment. Mind you, I share no such optimism because of past practices. From as early as the 1950s, several pieces of progressive legislation have been placed on the books which employers ignore, and workers suffer because of a lack of enforcement.
This week I will concentrate on the older pieces of legislation, and over time I will get around to this year’s panacea employment rights legislation. For the benefit of those in a similar position to the young man who sought my help, I will start with the Holidays With Pay Act.
Prior to January 1952, there was no such thing as being entitled to a paid vacation in the private sector. It was a much simpler time: if you worked, you were paid. The introduction of the Holidays With Pay Act brought in a whole new set of revolutionary entitlements in addition to paid holidays. Constraints of space would not allow meto quote all the relevant provisions but Sections 3(4) and (10) and Section 8 merit special mention:
Section 3(4): The annual holiday shall be given and taken in one period or, if the employer and employee so agree, in two separate periods and not otherwise.
I know that most people baulk at the thought of reading legislation but this subsection is only saying that an employer cannot break up your vacation unless you agree.
Section 3(10): Any notice of termination of employment given by an employer to an employee immediately prior to or during an annual holiday shall be void and of no effect.
This really needs no explanation; an employer is prevented from terminating the services of an employee during vacation. Such a dismissal would be wrongful.
The framers of the legislation foresaw a situation where an employer, being the dominant person in the employer/employee relationship, could coerce an employee to accept unfavourable conditions, and they provided at Section 8:
Any agreement between an employer and an employee which purports to exclude the operation of any provision of this act shall be null and void.
Even with this provision, I have seen employment contracts that were drafted by lawyers which sought to exclude the operation of the act. These contractual provisions are unenforceable.
Employees should note, however, that in accordance with Section 3(7), the employer has the right to determine the date on which the annual holiday should commence, but the employee must be given 14 days’ notice of the commencement date.
Even while writing this column, I received a query about an employer who requires his workers to report to the office weekly, in order to collect their pay while on vacation. Coincidentally, the young man who provided the catalyst for this column had a similar concern. In both cases, my advice was simple: this practice is specifically prohibited by Section 4 which states:
4(1) Every employee who takes an annual holiday under Section 3 shall be paid by his employer in respect of such annual holiday his average pay in respect of the period of his employment with such employer during the period of 12 months to which such annual holiday relates.
4(2) Where the employee takes his annual holiday in one period, the average pay referred to in subsection (1) shall be paid to him not later than the day immediately preceding the commencement of such annual holiday.
4(3) Where the employee takes his annual holiday in two periods, a proportionate part of the average pay referred to in subsection (1) shall be paid to him in respect of each period not later than the day immediately preceding the commencement of the two periods.
In essence, Section 4 is saying that a worker should have his pay in hand before going on holiday so there would be no reason for him to be at the office during vacation.
An employer who fails to pay vacation pay when due is guilty of an offence and liable on conviction before a magistrate to a fine of $100 or imprisonment for three months, or both.
The Employment Rights Act has provided the teeth for the Labour Department to act. Only time will tell if they are rubber.
• Caswell Franklyn is a trade unionist and social commentator. Email [email protected]