The Tribune

By NEIL HARTNELL

Tribune Business Editor

nhartnell@tribunemedia.net

A trade union leader believes employers are “overreacting” to proposed Employment Act reforms, telling Tribune Business the changes would not create “a financial situation” and instead be “cheaper” for Bahamian companies in the long-term.

Obie Ferguson, president of the Trades Union Congress (TUC), said the proposed reforms would help to “move away” from the tendency to litigate labour disputes through clarifying the law, saving employers - and employees - time and legal costs.

And he suggested that by raising all sorts of concerns, Bahamian employers were in danger of over-playing their hand, and ending up in a position where they were worse off than before.

Tribune Business revealed last week how employers had objected to the Government’s plan to include a mandatory one-hour lunch break in the definition of the ‘40-hour work week’, viewing this as an extra cost burden that will see employees paid for unproductive time and reducing the ‘work week’ to 35 hours.

Other employer concerns focused on the impact the proposed ‘12 consecutive hours of rest’ and ‘fixed day off’ requirements would have for companies that operated 24/7 and/or used shift work, plus the notion of paying hourly paid staff when they were not working on public holidays.

But, in response, Mr Ferguson told Tribune Business: “I don’t see any implications. The one-hour lunch break really and truly amounts to proper scheduling. If companies schedule staff properly, it will not be a problem.

“I don’t see a financial situation as a result of these changes that they’re proposing. It’s cheaper for them [employers] to do it this way, rather than hire an attorney and going to court to test the interpretation of particular provisions.”

And the TUC president reiterated: “I do not see the financial impact or economic impact being portrayed by the Bahamas Chamber of Commerce and Employers Confederation (BCCEC).

“I don’t see the financial impact, and it’s best to do it [the reforms] now when everyone is more susceptible to doing it.

“We have to move away from litigation in the Bahamas. A lot of labour matters are litigated, and it becomes very expensive for employers and employees.

“If we can develop laws with ordinary language that employers, employees and human resources managers can understand, they won’t need to hire an attorney and run up legal expenses. It makes sense to do this.”

Further explaining his position, Mr Ferguson added: “The employers may not agree with me now, but they will agree with me in the long-run that the changes are for the better.

“There are things we can clean up and avoid going to litigation on at every single point. If these changes are made it will help to improve relations between employers and employees, and reduces costs. Right now, a substantial portion of practices are open to interpretation.”

Mr Ferguson also contradicted the BCCEC position that a mandatory, paid lunch hour was never included in the Employment Act or its predecessor, the Fair Labour Standards Act. And, again directly contradicting the employers’ position, he insisted a paid lunch hour was “consistent” with International Labour Organisation (ILO) standards and recommendations.

Arguing that the Fair Labour Standards Act “was inclusive of lunch” when it came to the Standard Hours of Work, the TUC president told Tribune Business that the first Ingraham administration “gave me an assurance” that the Employment Act did the same.

He added that then-minister of labour, Earl Deveaux, called into a radio programme he was on to correct him, and that the lunch hour was included in the Standard Hours of Work.

Mr Ferguson, though, said the fact that the Employment Act did not explicitly refer to a mandatory ‘lunch hour’ meant the issue had been left open to interpretation by employers.

As a result, some employers included the lunch hour in the Standard Hours of Work (a 40-hour work week), and others did not.

“They [employers] were successful in 2001, persuading the former government that it [the lunch hour] ought not to be in it,” Mr Ferguson said.

“We had insisted that it ought to be made clear. The then-government chose not to, and left it open ended. Consequently, it was abused by some of the employers.

“What is now happening, as a result of experiences over the last 11 years, is that this government has now seen fit to make it abundantly clear that the lunch hour is included in the eight hours.”

The TUC president suggested employers had tacitly admitted as much, adding: “All of the arguments that have been advanced by the employers at the Tribunal, the Labour Board and the Supreme Court have argued that the eight hours are inclusive of lunch.

“Even when they’ve been required to make compensation for wrongful dismissal, it was always calculated on eight hours inclusive of lunch.”

As for employers’ other concerns, Mr Ferguson rejected their public holiday fears, suggesting that employees who did not work on this day receive their basic pay, and those that did should be “paid double” for the hours they worked.

“That’s standard throughout the world. I don’t see any problem with that,” he said.

The same applied to the concerns over the ‘fixed day off’ and ‘consecutive hours of rest’, Mr Ferguson explaining that these issues should have been put to rest at the beginning when employers and employees negotiated the employment terms.

“What the employers are doing are things not agreed to be done,” Mr Ferguson told Tribune Business. “By raising all these peculiar situations they’re asking the Government to consider, they could end up with less than they have now.

“I don’t understand sometimes where they’re going, because they will not get exactly what they are putting forward. The unions will not get all they are asking for; the Government has to balance the interests of the union and private sector.....

“In the Bahamas, employers tend to overreact. The Government tries to balance out, and they end up with less than what they have. It’s best not to go into these new areas where the legal implications are not known.”