FRANKLY SPEAKING: Private sector following Govt’s lead
Every day I receive complaints and queries from workers which suggest that the private sector is following Government’s lead by ignoring the labour laws of this country.
Recently though, the most popular complaint is that employers are requiring employees to work extra hours, but rather than paying overtime, workers are given time off in lieu as compensation.
The majority of workers who call me to query this practice would prefer money especially in light of the current national economic difficulties, but acquiesce in order to save their jobs. I have even spoken to employers who produce legal opinions from prominent lawyers to back up their action. My reaction is always that they need a new lawyer.
On September 11, 1951 the Grantley Adams administration went to Parliament and passed legislation to enact provisions of the International Labour Organisation’s (ILO) Protection of Wages Convention. Paragraph 1 of Article 3 of the convention states:
“Wages payable in money shall be paid only in legal tender, and payment in the form of promissory notes, vouchers or coupons, or in any other form alleged to represent legal tender, shall be prohibited”.
Paragraph 2, Article 4 then goes on to say:
In cases in which partial payment of wages in the form of allowances in kind is authorised, appropriate measures shall be taken to ensure that –
(a) such allowances are appropriate for the personal use and benefit of the worker and his family; and
(b) the value attributed to such allowances is fair and reasonable.
The original 1951 legislation did not enact the provisions of paragraph 2, Article 4. However, after Government ratified the convention on May 8, 1967, the ILO, at the urgings of the then youthful and useful Barbados Workers’ Union, required the Government to bring the Protection of Wages Act in conformity with the convention in order to honour Barbados’ international obligation. The amendments were passed in the House of Assembly on May 20, 1975.
To my mind, the original act and subsequent amendments have produced language, at sections 5 and 13, that clearly prohibit compensating workers with time off for work that was actually done.
This developing private sector trend of compensating workers with time off for overtime work that was actually done, is one of the bad practices that have crept in from the public service. Erroneously, it is widely accepted that the Protection of Wages Act does not bind the Crown (Government). And for as long as I can remember, public sector managers have been breaching the rights of public service employees using that exception as the pretext.
In an effort to put both sides, I must admit that the amendment that extends the protection of the Protection of Wages Act to public officers, was passed in May 1975; the act itself does not say that it binds the Crown; and that the Interpretation Act at section 10 (3) states:
“An enactment passed or made after 16th June, 1966, shall not bind the Crown unless it is expressly stated that the Crown is bound thereby.”
In light of the evidence that I have produced to disprove my case, you might be wondering why am I still maintaining that public officers are protected by the provisions of the Protection of Wages Act. I am fortified in this view based on three documents: the House of Assembly debate of May 20, 1975, as reported in Hansard at page 5083; the ILO’s Protection of Wages Convention; and the Caribbean Court of Justice’s judgement in the Shanique Myrie case.
It was reported that the Hon. C.E. Talma, the Member of Parliament who piloted the amendment bill, said:
“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.
Protection of Wages Convention
Paragraph 1 of Article 2 states:
“This Convention applies to all persons to whom wages are paid or payable”.
You should note that the convention did not exclude public servants.
Judgement in the Myrie Case
Bear in mind that the Government of Barbados signed an international obligation designated Convention 95 of the ILO. In the Myrie Case, the CCJ stated:
“A violation of Community law is not so much caused by the existence of domestic laws that seemingly contradict it but by whether and how these laws are applied in practice. The Court observes in this respect that the domestic courts of Barbados, including this Court in its appellate jurisdiction, are constrained to interpret domestic laws so as, if possible, to render them consistent with international treaties such as the RTC (Revised Treaty of Chaguaramas).”
Section 10 (3), of the Interpretation Act, which was cited above, seemingly contradicts this country’s international obligations under the ILO’s Protection of Wages Convention. If we are to be guided by the CCJ, and we must, it would appear that public officers and private sector workers are protected under the provisions of the Protection of Wages Act. And that being the case, the practice of compensating workers with time off for overtime work actually done, in both the private and public sectors, is inconsistent with our laws. There is no such thing as legal tender days off.
• Caswell Franklyn is a trade unionist and social commentator.