The government will soon conclude its round of public consultations on its draft Labour Relations Bill, 2015 that will seek to repeal and replace the Labour Law (2011 Rev), which is its current legislation dealing with labor-related operational procedures in the Cayman Islands.
I am in favour of the proposed legislation because I think it is forward thinking; makes provisions for future dynamics within the workforce while at the same time putting in place progressive reforms coupled with various clarifications of the current Labour Law, with a view of better benefiting both the employee and the employer.
In the course of the government’s request for input and feedback from the general public, I have also taken the liberty of submitting various observations and comments which I think will also strengthen the Bill and these I will also include in my comments of support herewith for the benefit of the reader.
The first reason why I support The Labour Relations Bill, 2015 (“the Bill”) is because the environment in which we today do business and commerce and engage staff requires legal oversight in order to effectively regulate and enforce many areas of its non-compliance across a wide cross section of employers. This oversight will be achieved by way of more devolution of administrative powers to the Director of Labour. Also I support the Bill because it will adopt a regime of strict compliance and mandate a requirement that within 10 working days of an employee being hired that the employer shall provide a statement of employment conditions (contract of employment) to that employee. If such a document is not furnished by the employer, the employee can write to the employer requesting a written statement of working conditions and the employer has to comply within seven working days to such request. It is a sad fact, but many employees currently work in the Cayman Islands without a proper written contract of employment. This statement of working conditions will include many areas of relevance and clarity and are contained both in the Labour Law (2011 Rev.) in Section 6 (2) and in the Labour Relations Bill, 2015 in Part 7 (2); but include such requirements as: job title and general duties; hours of work; rate of pay and period(s) of pay; holiday entitlement; maternity and paternity leave; terms of work dismissal; and other pertinent working rights.
Secondly, I support the Bill because it endeavors to cause enforcement by way of adequate financial penalties for non-compliance. I further support the provision of additional administrative powers to the director and deputy director of Labour, and their labor inspectors, when performing their duties administratively.
Thirdly, I endorse and support the proposed change to grant authority to a Labour Tribunal to award no less than four week’s wages in severance for each year of full-time or equivalent work.
Additionally, I support the provision and legal protection from victimization as a result of “whistle-blowing” or for making legitimate complaints for specified situations such as working conditions and other employee infringements.
I also appreciate and support various amendments and new provisions contained in Part 10 of the Bill to encourage the hiring of Caymanian staff by clarifying various current discriminatory practices and the insertion of a new provision that where a Caymanian may apply for a position and be deemed to be “over qualified,” that such discrimination can no longer be relied upon or used.
I also support the provision of zero tolerance for workplace harassment inclusive of sexual harassment within the workplace or in the course of carrying out duties.
I also support the provision in the Bill that would provide for the law to be a “living document” in that Cabinet will be able to make regulations to provide for an administrative penalty system to address areas that could arise with the passage of time and be able to avoid long reaction delays by having to resort, otherwise, to actual changes to the substantive law.
As stated at the outset of my letter of support, I also attended the district meetings which were held by the Ministry of Education, Employment and Gender Affairs and the Labour Department and did make some submissions on areas of general concern to myself. I think it would be in order to mention these as they also form a part of my support.
My first area of concern is that, while the proposed new Labour Relations Bill, 2015 contains some new excellent provisions together with a lot of compliance checks and penalties, without the proper enforcement resources it will once again be just another government law that will be ignored – not because it should not be complied with, but simply because the law, even with all of its forward-thinking provisions and modern best practices provisions, simply will not have the necessary resources necessary for its full enforcement.
With its public servant head-count restraints, government is unable to provide those resources and without proper enforcement the law will not succeed.
I am concerned over what I term an obvious flaw that I have observed when reading the new draft Labour Relations Bill, 2015 when compared with what it will eventually repeal and replace, namely the Labour Law (2011 Rev.). The new Labour Relations Bill, 2015 must make provision for and allow the “grandfathering” in of the old provision as contained in Section 26 of the Labour Law (2011 Rev.) that dealt with employers being able to provide letters duly signed in free will by staff for overtime waivers. This is because many employers have acted in good faith over the years and have complied with this provision and still have those same staff working for them on straight time because they filed and received approval from a Labour Tribunal as per Sect. 26 of the 2011 revised law.
It would be unfortunate and indeed a miscarriage of justice to now suddenly stop this practice without making provision for its continuance under a “grandfather clause” and have the same provision continued in the 2015 Bill as contained in Sect. 26 of the 2011 Revised Law.
The area that causes the most concern to me however is surrounding the enforcement of the new Labour Relations Bill, 2015. To this end I have given some recommendations to government. I list them below in bullet form:
- I would like to see a system implemented similar to what exists with regards to one getting their new Trade and Business Licence or their work permits, where a Certificate of Good Standing is required to be obtained from the Department of Trade & Labour before a company can file work permits or get their Trade Licence renewed. This would go a long way to ensuring strict compliance with the Labour Relations Bill, 2015.
- In order not to cause the making of labor law compliant contracts of employment only the purview of the legal fraternity, I would suggest some sort of mechanism be provided for small businesses who are in the business of providing business consultancy services and are qualified and equipped to furnish to clients very high standard contracts of employment to be somehow “approved” by the Department of Trade & Labour to then be able to advertise their services to the larger audience and able to say, for example, “Department of Trade & Labour approved service provider.”
- Alternatively, and perhaps a better approach to fostering a good and healthy working relationship between government and the private sector, it would be timely for government and the Cayman Islands Chamber of Commerce
to engage in discussion about having the Chamber recognized by government as having the competence and the ability to provide through its membership resources, quality services that would enable the Chamber to be “licensed” by government to work with the Department of Trade & Labour to outsource to its small business membership and others, the work to bring all businesses operating in the Cayman Islands into compliance with the requirements of the new Labour Relations Bill, 2015 and also with the new Pensions Bill, 2015.
- If Government chose to go it alone, they could “license” some small Caymanian-owned firms to audit/inspect businesses and give them a Certificate of Good Standing, with those companies paying the audit/inspection business a fee (from a fee scale approved by the Ministry/Department of Labour), and the certificate would last for one year. Government would maintain quality control because the Department’s inspectors would do random “spot checks” on businesses that have been given certificates, to make sure that everything is being done thoroughly. Government would license these inspection/audit firms separately, and they would pay an annual license Fee to government via the Department of Commerce and Investment. If the new Labour Relations Bill, 2015 is inclusive by the involvement of the business community, especially small businesses, to assist it in ensuring compliance with the law, then Government would have achieved not only an updated and forward thinking new labour law, but the Labour Relations Bill, 2015 would also transform itself into a “jobs creation bill.”
I therefore wish to make it abundantly clear that I support the draft Labour Relations Bill, 2015 and with the due consideration and possible adoption of some (if not all) my recommendations and observations would even make it into a much more inclusive and “stakeholder-buy-in” environment.
I therefore support the Labour Relations Bill, 2015, which hopefully will be further strengthened by way of the numerous additional submissions and input which they would have received during the series of district meetings.