Employees in the Maid Service Division of Hew’s Janitorial Maintenance and Supply Services Ltd. asked for extra work and agreed to standard pay, Attorney Delroy Murray said in court on Wednesday.
He explained that the Labour Law allows such an arrangement, but it must be registered with the Labour Department — now the Department of Labour Relations. He was speaking in mitigation for the company, for which guilty pleas were previously entered to 37 charges of failing to pay overtime.
Senior Crown Counsel Trevor Ward said the amount of pay due to workers totalled $39,644.44. When the matter first came to court last June, the amounts allegedly owed ranged from $169.38 to $4,676.51.
Last week, Mr. Murray said as far back as 2002 the arrangement between Hew’s and the employees was known to the Labour Department, which sent inspectors to the company to check records.
He explained that Hew’s Janitorial, founded in 1975, was one of the oldest and most respected janitorial services on the island. It employs approximately 130 persons at any one time and has four divisions. The Maid Service is the smallest, with between 10 and 15 workers.
There are no issues regarding overtime in any of the other divisions, Mr. Murray emphasised, and the maids never complained.
Most of them are expat workers and from time to time would request extra work. They were paid a standard rate for up to 40 hours and if they asked for extra work it was always indicated to them that it would be paid at the standard rate. The company had workers’ consent to this arrangement in writing.
The situation remained until 2007, when annual audits again revealed that the maids were being paid regular wages for overtime. The company was written to and told they were now expected to pay overtime.
Mr. Murray said by January 2008 it was clear the department intended to enforce this section of the law. He wrote requesting assistance because Section 26 of the Labour Law says the overtime scheme must be registered but does not indicate how it is to be registered.
Neither does the law say who should register the scheme. Mr. Murray said at one stage the advice received was that the employee should register. However, it was later concluded that the onus is on the employer to register the overtime scheme.
Mr. Ward agreed there did seem to be some ambiguity about the procedure for registering an overtime scheme.
Chief Magistrate Margaret Ramsay-Hale summarised Mr. Murrays’s submissions in terms of the offence being technical and with no intention to evade the law: the company was actually assisting the workers by giving them extra hours at their request.
For those reasons, the attorney agreed, he was asking the magistrate to exercise her discretion not to record a conviction against the company and not impose any further penalty.
The magistrate asked the method of paying the employees their back pay. Mr. Murray said the amounts were to be paid within six months.
After checking the Penal Code and Criminal Procedure Code, the magistrate said it seemed her powers were quite limited. She could not make an order for payment to the maids and not record a conviction.
Sentencing was deferred until 24 June. The magistrate said she would give the company the six months to make compensation and then hear Mr. Murray in mitigation why a conviction should not be recorded.