Staffing board chair: “Urgent need” for reform of work permit process

In a comprehensive letter to government, Business Staffing Plan Board chairman Richard Barton said there is an “urgent need” for legislative reform to address the ongoing abuse of the work-permit application process that is increasingly detrimental to Caymanians.

“The BSPB has noted what it perceives as a clear abuse of the process by some applicants that, for whatever reason, appear more determined to either recruit from abroad or retain their incumbent work permit holder at the expense of the Caymanian and holder of a [Residency and Employment Rights Certificate] counterpart,” Barton said, in a 1 March letter to line minister Deputy Premier Chris Saunders.

He pointed to the “misguided perception that a work permit is a right rather than  a privilege”.

The four-page letter, which was also sent to Premier Wayne Panton, Commerce Minister André Ebanks and Workforce Opportunities and Residency Cayman officials, outlined the board’s challenges and addressed criticism of the work-permit system levelled as recently as this week.

At the same time, tourism leaders seeking to get their businesses staffed for the increase in visitors, are being hampered by work-permit delays.

These delays appear unlikely to change without proper law amendments to address the board’s concerns, Barton said.

“The increased demand and urgent need to expand the hospitality industry labour force, unless interim legislative reform is considered, will continue to outpace the resources of the BSPB in the short to medium term,” Barton wrote.

In laying out the board’s challenges, the attorney said, they have witnessed “the clearest evidence of this [abuse] and sought to change the misguided perception that a work permit is a right rather than a privilege”.

Saunders, responding to Compass queries on the letter, stood by Barton’s assertions.
“There is a need for reform and our agenda is taking a multifaceted approach to the issues,” the deputy premier said in his statement.

“It is no secret that some medium-to-large employers have not consistently provided opportunities to Caymanians who are qualified, experienced, willing to work and progress. This culture needs to change. Our people must be given those opportunities as required by law,” he said.

Saunders pointed out that the correspondence from the Business Staffing Plan Board has “validated what my colleagues and I have been hearing from our constituents.

“It also confirms that these historical challenges existed well before the election of the PACT Government. As in every crisis, there are always opportunities to learn. The global pandemic allowed us to take a very hard look at not only the unemployment trends but also the trends in underemployment. Both are equally bad and perhaps more so underemployment, as if it becomes entrenched, it hides the impact on productivity and wage growth,” Saunders said.

He stated that there must be a “universal desire” by all related agencies, as well as the public and private sector, “to honour the well-established legislative mandate to make Caymanians and holders of a[n] RERC a priority.

“After all, this is not a distant concept and has always been the law. The BSPB is not prepared to countenance any request for work permits in circumstances where there are Caymanians and holders of a RERC duly equipped and available to fill the relevant positions,” he said.

‘Systemic’ abuse

A copy of Barton’s letter was obtained by the Cayman Compass this week, in which he expressed frustration over the public pressure being brought to bear on the board as it seeks to carry out its mandate.

In laying out the issues the board has encountered, Barton reported that they have “continually witnessed eligible Caymanians and holders of RERC deliberately shut out from the recruitment process only to pave the way for a work permit application.

“This practice now appears to be systemic with some applicants that have operated in the Cayman Islands for several decades” demonstrating no desire to hire Caymanians and holders of RERCs.

“Once again, this is not a novel encounter and to suggest otherwise can only be regarded as an act of willful blindness,” he wrote.

Barton, in the letter, noted that successive administrations have agreed upon a “common desire” to enhance the board’s regime to ensure its legislative objectives are met regarding hiring Caymanians and holders of an RERC.

“This would be a welcome approach and the BSPB is readily available to further develop” all these issues, he said.

“An initial step in the process is the urgent need for legislative reform to increase efficiency and repair the unfortunate and unfair perception of the BSPB and WORC.”

Barton pointed to periodic complaints received from “aggrieved” Caymanians and RERC holders about the behaviour and practices of various applicants and work-permit holders.

“It is often the case that the author of such complaints is fearful that they will be alienated and ostracised by the applicant or a particular industry,” he said, suggesting that efforts be made to train and utilise the resources of WORC’s compliance division to determine the veracity of such complaints.

“This is a very serious concern and places the BSPB in a difficult situation, given the obligation to refuse applications that are deemed contrary to the local interest of Caymanians and holders of a[n] RERC,” he said.

Saunders said that the WORC compliance team “is working closely with its boards to investigate concerns and ensure those found in breach of the law are fined or prosecuted”.

Backlog not new

He acknowledged that there are numerous applications that have remained unprocessed for several months.

“This issue of the backlog is not one that is novel and has been plagued by what appears to be historical legacy issues. At the core of this issue is the frequent submission of incomplete applications, the consequence of which is self-evident,” he said.

Barton explained that in recent years two additional factors have seemed to exacerbate the backlog issue.

“First, the global pandemic which, by its nature undermined the efficiency of the process. Second, the 2021 elections which brought about a change in the government naturally caused further disruption, as would be expected in any scenario where an administration is replaced after two consecutive terms in office. Indeed, this factor has compounded the delays,” he wrote.

However, Barton said, the board has increased the frequency of meetings to address the issue, with two business days dedicated each week to give “due weight and attention to each application received”.

He said an average of 50-75 agenda items are settled per meeting, which “nearly doubles the pace of the previous Board that processed some 75 agenda items per meeting once weekly.

“At twice per week, members have devoted approximately 40% of their professional commitments solely to meet the objectives of the BSPB. This is not an insignificant commitment, and their efforts are indeed worthy of acknowledgment,” he said, but noted that the board has now arranged to meet three days a week.

Barton called it “disheartening” that well-known private sector members have publicly criticised and personally attacked the integrity of the Business Staffing Plan Board and its  members and, more broadly the WORC administration.

“This behaviour does little to inspire confidence in the process and reflects poorly on the overall business climate of the Cayman Islands locally and abroad,” Barton told the minister through the letter.

Saunders acknowledged, “Businesses the world over will always try to influence and exert pressure,” adding Cayman is no different.

“As I have said many times before, there is no greater friend to an employee than an employer. Businesses are essential to the success of any economy, and the current size and complexity of our economy will require the importation of talent, skills, and experience from overseas. However, it cannot come at the expense of the opportunities and employment of qualified and experienced Caymanians,” the deputy premier said.

He lamented that too many young Caymanians “are sitting at home and wasting away.

“On a personal level, nothing grieves my soul more than hearing a parent say they have told their child not to return home after university as there are no opportunities here for them. Opportunities are here. We must make sure that they can access them,” he added.

He noted that it must be accepted that Caymanians and holders of RERCs have demonstrated a lesser interest in some sectors, for various reasons.

To this end, he said, the board would recommend closely examining each sector and, in particular, the hospitality industry as it seeks to remobilise.

In addition, he said it was “perhaps time… to consider a specific joint partnership with the key stakeholders, to address these immediate concerns”.

Barton pointed out the board is quasi-judicial and “quite dissimilar” to WORC as, by its composition, the BSPB is not administrative in nature.

“It is obliged to give adequate reasons for its decisions, which are subject to appeal to the Immigration Appeal Tribunal and ultimately by judicial review to the Grand Court,” he said.

“It is for this precise reason why each application should be given the detailed consideration it deserves particularly where it relates to the interest of Caymanians and holders of RERC, as noted in section 58(4) of the Immigration Transition Act (2021 Revision),” he said.

“The Act explicitly reserves employment opportunities for Caymanians and holders of RERC where such persons are duly qualified and readily available. This process must be exhausted, whereby Caymanians and holders of RERC are to be given priority, in that exact sequence, before an application for a work permit is successful,” he added.

According to statistics provided to the Compass last month, since April 2021, when the PACT government took office, WORC deferred 10,600 of the 39,705 applications for work permits and renewals it had received, and refused 2,687.

Of the deferred applications, 1,173 remained outstanding as of 22 Feb.

In January and February this year, 26.7% of all applications for work permits and renewals were refused or deferred.

He noted that a balance must be struck, but said the board is conscious of its “invariable and compulsory legislative requirement, which continues to guide its steps in each decision made”.

“Equally, the need for a business to adequately staff itself, where the requisite resources are not available in the Cayman Islands, is abundantly clear to the BSPB and remains a key factor in the decision-making process,” he added.

Urgent need for change

With the priority fixed on Caymanian employment first, Barton took aim at stumbling blocks to getting workers into jobs, including the government’s jobs portal.

“The current online portal on which job advertisements are published is in desperate need of revision. Once again, the BSPB would encourage joint consultation between the Chamber of Commerce and WORC to address this mutual challenge. Though not required by law, it is always good practice to advertise in the local newspapers and the BSPB fails to see why this is not the natural default position to be assumed by businesses genuinely in need of qualified applicants,” he said.

Job advertisements are mandated by law to be published on the jobs portal.

Editor’s note: This article has been updated to include comments from Deputy Premier Chris Saunders.