When Executive Council member Norman Bodden introduced Cayman’s first Labour Bill to the Legislative Assembly in December 1987, he noted that Cayman was already familiar with many of the concepts contained in the proposed law.
Because the Cayman Islands had been a dependency of, or administered by, Jamaica until the latter became independent of the United Kingdom in 1962, several of the labor-related laws passed in Jamaica applied to the Cayman Islands, Mr. Bodden explained. Among those laws were the Masters and Servants Law of 1842; the Truck Law of 1944; and the Minimum Wage Law of 1946.
“So after all,” he told the Legislative Assembly, “certain provisions of this Labour Bill are not so strange, novel or horrifying as was claimed by a few organizations, because these have been around …”
Mr. Bodden said the older laws had served the Cayman Islands well in the days for which they were intended to serve. However, he also said it could not be conscientiously denied that the working class as well as Cayman’s employers deserved a better legal framework than was then in place.
“In reading these laws, which have been lying dormant or in limbo – one of them for more than a century – one cannot help but conclude that for a developing country that enjoys the growth, prosperity and progress of these Islands, that there was a genuine need to review, revise and replace what labor legislation we have on our books with something more comprehensive and more representative of the times in which we live; some form of legislation that is better equipped to meet the immediate and future needs of a modern and materialistic society.”
Mr. Bodden noted that there had been “strong objections” to the proposed labor legislation from certain sectors of the business community.
“But like it or not, society often creates the conditions it condemns,” he said. “It is my considered opinion that to further continue to ignore and neglect this area of labor relations will only encourage the development of a far greater evil in our society, an evil force that none of us want or need; I refer here specifically to labor unions.”
For two-and-a-half years prior to the bill coming to the House, a select committee held 37 meetings to discuss what it wanted in a new law and to receive input from legislators and the public, including various private sector organizations. The committee also took the advice of the U.K. Foreign and Commonwealth Office’s labor adviser.
“I can truthfully tell this honorable House that the committee gave careful consideration and deep thought to the detail of every representation received or discussion held,” Mr. Bodden said.
Even though the bill was shaped through a lengthy consultation process that included the legislators, it did not meet with the approval of all. Opposition MLA Haig Bodden from Bodden Town strenuously objected to the bill.
“The bill before the House is sadistic … in that it derives pleasure in inflicting cruelty upon the employer,” he said in his debate contribution.
“The bill is one-sided and it is all in favor of the worker with no returns for the employer.”
The Bodden Town MLA said the bill would do nothing to enhance the relationship between employer and employee.
“The relationship which now exists is probably the best employer/employee relationship in the Caribbean, and this bill will not improve upon our position; it will probably make it worse,” he said.
Ultimately, Mr. Bodden felt the bill would hurt the employee because of the effects it would have on employers.
“By its onerous administrative burdens that will be placed on the employer, such as record-keeping and so on, the employer must have his costs go up,” he said, later adding, “We cannot help the worker by damaging the employer.”
Mr. Bodden said he thought the bill would take the country back 50 years.
“The only good to come of this is that it will provide plenty of employment for lawyers and accountants,” he said. “For the worker, it will create frustration and it will create frustration for the employer as well.”
In introducing the bill, Norman Bodden said it was, “something with teeth, something that bites.”
Haig Bodden, in referring to those comments, said the bill was “a bulldog of the fiercest nature.”
“The bill is an administrative nightmare,” he said. “All small businesses will now need a personnel manager, they will need people to do the bookkeeping and record keeping.”
The Bodden Town MLA said the bill would introduce “a type of socialist legislation which dictates terms of employment, removes bargaining power, which has been the cornerstone of our free enterprise system.
“This is a bill that [Norman Bodden] calls, in his own words, fair, reasonable and equitable,” he said. “I am wondering: fair to whom? Reasonable to whom? And equitable to whom?”
Haig Bodden also expressed concern about giving a director of labor the power to enforce the labor law.
“It would appear that the director has been given unusual, abnormal powers under this law,” he said. “In some instances, he will be the complainant, the prosecutor, the judge and the hangman, since he is charged with the enforcement of the law.
“I think this is far too much discretion to put in the hands of one person, a person over whom there is no control.”
The bill passed into law by a 12-1 vote, with Haig Bodden casting the only dissent.
Employment Law (2004)
The 1987 Labour Law was amended five times over the next 13 years.
In 2003, Minister of Employment Relations Roy Bodden and the United Democratic Party government proposed new legislation called the Employment Bill, which came to the House for debate in March 2004.
In presenting the bill and talking about how his ministry arrived at its provisions, Mr. Bodden offered reasons for the legislation that were similar to Norman Bodden’s more than 16 years previous.
“It was agreed that the old Labour Law, which was the original Labour Law crafted in 1987, had served its purpose and had done well, however, changes in society and in employment relations necessitated a new and refreshing look at our labor practices,” he said, noting that some had suggested making amendments to the existing law.
“Upon huddling and consulting with my advisers in the ministry, it was decided that it would be in the best interest of all parties to opt for a new law.”
One of the problems with the old law was that it overburdened the system, the minister said.
“It was also an adversarial system which bode no party any good because what it did was pitted employer against employee and made the government, who was firmly embedded in the middle, look like a bad guy when ruling came in favor of either side. We had a system existing in which the employees had no confidence in government and the employers had no confidence in government.”
Mr. Bodden said the ministry had “employed the widest consultation possible” but was disappointed that there had been no comments from employee organizations.
“It seems our system is weak on that,” he noted.
The labor minister also said he was disappointed the Cayman Islands Chamber of Commerce had withdrawn from the process “using the excuse that they could not agree to what was being put forward.”
“It is important for me to say at this point that it really is not my prerogative, nor is
it my interest or overriding concern, to craft an Employment Bill that the Chamber of Commerce accepts or is pleased with,” he said. “Indeed, I would be suspicious if that were the case because the Chamber of Commerce is a special interest group primarily representing employers, in spite of what they might claim.
“My responsibility as the minister is to craft an Employment Bill which is fair to employers and employees ….”
Premier Alden McLaughlin, then a backbench George Town MLA, generally supported the proposed bill, but warned of the exploitation of immigrant workers.
He pointed to provisions in the Labour Law requiring employees not at the professional or managerial level to be paid overtime rates for hours worked in excess of 45 per week. He said provisions in the law should not allow the employer and employee to negotiate working hours over 45 per week at regular hourly rates.
“That is not true negotiation because one party is in a stronger negotiating position,” he said, noting also that immigrant workers were often afraid to complain for fear of losing their jobs.
“Those people are not robots,” he said. “They live and breathe and exist in this society in the same way the rest of us do. They are human beings … Those people live in this community, have interactions with our people, they form relationships with our people and they get sick in the same way we do. We cannot treat them as some sort of sub-species.”
He said some immigrant workers were the most vulnerable in the community because they did not have the economic strength to speak out.
“They are so glad to get the job that they are prepared to put up with the most abysmal and atrocious conditions.”
Like the Labour Bill of 1987, the Employment Bill 2003 passed easily. Despite its unanimous passage, it was never put into force. Subsequently, the Labour Law, which the Employment Law was intended to replace, has been amended three times since then.
In a 2012 report on improving workplace health and safety conditions, former Complaints Commissioner Nicola Williams said her office could uncover no justifiable explanation as to the delay in putting the Employment Law into effect.
“What is the point of passing a law that sits there for eight years and doesn’t come into force?” she asked.
Now, 11 years after the passage of the Employment Law (2004), the People’s Progressive Movement has issued a draft consultation bill called the Labour Relations Bill, 2015, which includes many of the provisions of the 2004 law that never went into effect.
Once again there has been resistance, particularly from the business community, which views the provisions of the proposed bill as too onerous on employers. Some of the business community’s arguments sound remarkably similar to those put forward by Haig Bodden more than 27 years ago.
When it comes to labor laws, Cayman has shown that even passage in the Legislative Assembly might not be enough to effect change. The jury on the Labour Relations Bill, 2015, is therefore still out.