The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

Bahamian businesses were last night celebrating “a victory for all employers” after the Court of Appeal quashed an Industrial Tribunal ruling that effectively gave all workers an extra week of paid vacation annually.

Anita Allen, the Appeal Court president, noted that while the Industrial Tribunal had been asked to make a determination on one question, its president, Harrison Lockhart, “went on to determine something that was not before him”, and “enlarged the issue”.

“There was no reason for him to determine the interpretation of a week in the Employment Act; Article 25 is very clear. Why the president decided to go to the Employment Act and determine what a week is, we don’t know,” said Justice Allen.

Her fellow Justice, Christopher Blackman, said the ruling had generated much concern in the business community. “There would be no need for concern if he stuck to what he was asked to do,” added Justice Blackman of the Industrial Tribunal president.

Private sector leaders were ecstatic last night, and breathing a sigh of relief at the Court of Appeal’s clarification of what constituted a ‘week’ and ‘paid vacation’.

Chester Cooper, the Bahamas Chamber of Commerce & Employer Confederation’s (BCCEC) chairman, told Tribune Business: “We would welcome the ruling being quashed, and this would be a victory for employers in all sectors across the Bahamas”

Tribune Business understands the BCCEC had lobbied the Central Bank of the Bahamas and the Government to ensure that an appeal to the original ruling was filed in a timely manner.

Following the release of the Tribunal’s judgment in August this year, Mr Cooper noted that it would “far reaching” implications for private sector costs.

He added that requiring employers to give all staff an extra week’s paid vacation, apart from adding to an already-high cost burden, would further reduce productivity in an economy where employee output is already perceived as relatively low.

And Mr Cooper also warned that the Tribunal’s decision - if allowed to stand - could undermine the Bahamas’ economic competitiveness and efforts to position itself as an international business centre.

In his August 28 decision, Mr Lockhart had ruled that the term “two weeks” in the Employment Act as it related to vacation pay really meant 14 working days, and ‘three weeks’ meant 21 working days.

As a result, Mr Lockhart found that workers entitled to a minimum of two weeks paid vacation per year were really allowed a minimum of ‘14 working days’ off, and those workers eligible for three weeks paid vacation, under his determination, were really entitled to 21 working days off.

To-date, all Bahamian employers and workers have operated on the basis that the ‘two week’ and ‘three week’ paid vacation legal minimums include the ‘48 hours of rest’. As a result, staff have received only 14 and 21 consecutive days off, respectively.

Mr Lockhart’s decision arose as a result of a dispute over a new industrial agreement between the Central Bank of the Bahamas and the Union of Central Bankers.

The dispute focused on whether it was lawful for the Central Bank to calculate vacation benefits on a pro rata basis during the first year of the agreement. One term of the new agreement was for employees who have worked for a continuous period of more than 16 years to receive an added five working days of vacation.

Mr Lockhart found that the proration of the additional five days vacation benefit, granted under the new agreement, was unlawful. Additionally, he ruled that the minimum paid vacation entitlements in the Employment Act did not include the 48 hours (two days) per week of rest that all employees are entitled to.

While unions and Bahamian workers will likely be less pleased with yesterday’s ruling, the Union of Central Bankers won a ‘personal victory’, as the Court of Appeal backed Mr Lockhart’s findings that related to their industrial agreement.

Attorney Melissa Wright, who represented the Central Bank, ultimately conceded that Mr Lockhart was right in his determination on the proration issue, and asked that the regulator’s appeal be allowed relative only to his other findings.

Attorney Alfred Sears, who represented the union, told Tribune Business following yesterday’s proceedings: “The union took the position that the industrial agreement did not authorise the Central Bank to prorate the vacation entitlement of the current employees.

“The union’s position was that that practice was in breach of the industrial agreement, and that the vacation entitlement ought to be automatic. The Central Bank and the union could not agree, so the matter went to the Industrial Tribunal for an interpretation of the industrial agreement.

“The Tribunal, in its ruling by the president, held that the Central Bank had acted wrongly by prorating the vacation entitlement. The court, however, quashed all of the other things that he did. They quashed all of that but they affirmed him on the question that the union had put to him: that the Central Bank did not have the right under the industrial agreement to prorate the vacation entitlement of the employees. The union won on the narrow point that they had submitted.”