The Labour Code Bill, 2005 Part 5

The following is part of a series of extracts from the Labour Code Bill, 2005, being published by the Anguillian as a public service and in view of the public discussions on the legislation now taking place in Anguilla. The extracts are being published in cooperation with the Attorney General’s Chambers.

BASIC CONDITIONS OF EMPLOYMENT
Public policy
40. The following expressions of public policy underlie and shall be used in the interpretation of this Part—
(a) An employee should know what his job consists of, what his employment conditions are, and, if his employment is terminated, the reason for the termination.
(b) An employee is entitled to reasonable breaks in employment, whether because of physical disability or for rest and rehabilitation.
(c) In the interests of spreading employment opportunities and of preventing industrial accidents, there shall be a reasonable limitation upon working hours of employees.
(c) To the extent that circumstances dictate that working hours be reasonably extended, overtime pay ought to be received therefor.
Conformity with Code generally
41. An employer shall not provide employment nor is an employee obliged to accept employment, under terms and conditions, which do not conform generally to the provisions of this Code.
Forms of employment contracts
42. (1) It shall be lawful for an employer and employee to enter into an individual employment contract, either written or oral, which specifies conditions of employment, but any provision thereof which—
(a) establishes conditions which fall below the minimum employment standards established by this Code shall be void;
(b) requires that the employee refrain from associating with other employees or with a trade union for collective bargaining purposes shall be void.
(2) Where an employment contract for a fixed term is renewed on one or more occasions so that the total period involved is 12 months or more, such contract shall, for the purposes of this Code, be deemed to be for an indefinite period.
(3) When it appears to a Tribunal appointed in accordance with section 27 that a fixed term employment contract is renewed in such a way as to evade the provisions of this Code, the Tribunal shall determine such contract to be for an indefinite period.
(4) It shall be lawful for an employer, or group of employers, to enter into a written collective agreement with 2 or more employees or their representatives.
(5) A copy of an agreement reached under subsection (4) shall be lodged in the prescribed manner with the Commissioner within 7 days of being signed by the parties to the agreement, for registration as a collective agreement.
(6) A collective agreement lodged for registration under this section which, in the opinion of the Commissioner, is in conflict with the requirements of section 41 shall be returned to the parties for amendment, and shall not be registered by the Commissioner until he is satisfied that the provisions of that section have been met.
Statement of working conditions
43. (1) Where an employee is engaged by an employer for a term of employment exceeding 3 months, the employer shall furnish the employee with a written statement within 10 days of engagement containing at least—
(a) the name and address of the employer and employee and the general responsibilities and related duties for which the employee is being hired and any special requirements or conditions of the job;
(b) the regular hours of work and rest periods; together with any particular terms or conditions relating to the hours of work;
(c) the rate of remuneration, and methods by which it may be calculated;
(d) the intervals at which remuneration is to be paid;
(e) in the case of employees whose pay is normally stated on some basis other than hourly, the hourly equivalent save that in the case of persons remunerated wholly or in part by commission the rate of commission should be stated;
(f) the period of employment, if other than indefinite;
(g) the period of probation if any;
(h) the employee’s leave and vacation entitlement or the method by which it may be calculated;
(i) the employee’s entitlement to sick leave; and
(j) the length of notice which the employee is obliged to give and is entitled to receive to terminate the contract of employment.
2) With respect to persons currently employed for periods exceeding 3 months on the date of the coming into force of this Code, each employer shall, if he has not already done so, within 20 days after such date, furnish each such person with a written statement which shall set forth—
(a) the name and address of the employer and employee and the general responsibilities and related duties for which the employee is being hired and any special requirements or conditions of the job;
(b) the regular hours of work and rest periods; together with any particular terms or conditions relating to the hours of work;
(c) the rate of remuneration, and methods by which it may be calculated;
(d) the intervals at which remuneration is to be paid;
(e) in the case of employees whose pay is normally stated on some basis other than hourly, the hourly equivalent save that in the case of persons remunerated wholly or in part by commission the rate of commission should be stated;
(f) the period of employment, if other than indefinite;
(g) the period of probation if any;
(h) the employee’s leave and vacation entitlement or the method by which it may be calculated;
(i) the employee’s entitlement to sick leave; and
(j) the length of notice which the employee is obliged to give and is entitled to receive to terminate the contract of employment
(3) Where, subsequent to the giving of a statement under subsection (1) or (2), the employer desires to change the responsibilities and related duties of an employee as set forth in such statement, he shall at the time he effectuates any such change, furnish such employee with a new written statement.
(4) Notwithstanding subsection (3), where there is no organization representing an employee who is employed for an indefinite period, the employer shall in consultation with the employee review the employee’s wages and other terms and conditions of employment at least once in every 2 years.
Probationary period
44. (1) The probationary period of any employee shall not exceed 3 months, except in the case of an employee of the rank of a supervisor or above, where the probationary period may not exceed 6 months.
(2) Notwithstanding subsection (1)—
(a) where the contract of employment does not exceed 3 months, no probationary period need be included in the contract of employment, but if such a contract does specify a probationary period, the provisions of section 43(1) shall apply; and
(b) the employer may, after consultation with the employee or his representative extend the probationary period for a further period not exceeding the duration of the original probationary period, where it is in the interest of the employee to do so.
(3) During the probationary period the employee shall be given reasonable training and general orientation in the duties and responsibilities of the position for which he was hired and the employee shall be kept informed of his progress.
Rest periods and standard working hours
45. (1) Except where otherwise provided by a collective agreement, every employer shall permit each of his employees to enjoy in every period of 7 consecutive days a period of rest comprising at least 24 consecutive hours.
(2) The standard workday shall be 8 hours and the standard workweek 40 hours.
(3) The Minister may, after considering the recommendations of an Advisory Committee appointed under Part 4 and after approval of the Governor in Council, vary the standards prescribed in this section by issuing Regulations to that effect.
Meal intervals
46. (1) An employer shall not require or permit an employee—
(a) to work for more than 5 hours continuously without a meal interval of not less than 1 hour, or, where subsection (2) has been applied, of not less than the agreed time;
(b) to perform any work during his meal interval:
Provided that under conditions of continuous shift working in which the Commissioner is satisfied it would not be practicable to grant employees a break of 1 hour’s duration, he may approve some other basis of working which seems to him or her fair and reasonable in the special circumstances.
(2) An employer may agree with his employee to reduce the employee’s meal interval to not less than 30 minutes.
(3) For the purposes of this section, a period of work interrupted by an interval of less than 1 hour, or, in the case of a meal interval regulated by an agreement under subsection (2), by an interval of less than the agreed time, shall be deemed to be uninterrupted.
Overtime pay
47. (1) Subject to subsections (3) and (4), for any work done by an employee for his employer at the employer’s request, on a rest day, or in excess of 8 hours on any work-day or in excess of 40 hours in any week, the employer shall pay the employee at the rate of at least 1½ times his basic rate of pay, and hours for a holiday shall be counted as hours worked towards a 40-hour week.
(2) The Minister may, after considering the recommendations of an Advisory Committee appointed under Part 4, vary the standards prescribed in this section by issuing an Order to that effect.
(3) In arranging for overtime work, the employer shall take into account the special circumstances of young persons under 18 years of age, pregnant women, nursing mothers and handicapped persons.
(4) The provisions of subsection (1) shall not apply to salaried employees holding positions of supervision or management whose terms and conditions of employment shall be fixed at a level which adequately compensates them.
(5) An employer shall not classify an employee as holding a position of supervision or management under subsection (4) if his duties and compensation are not commensurate with such status and an Arbitration Tribunal appointed under this Code or a court may inquire into the matter and make a determination giving due regard to this rule and to the right of an employer to manage his business.
(6) Where employees are employed in shifts, it shall be permissible to employ them without payment of overtime in excess of the daily or weekly number of hours specified in this Part, if the average number of hours over a period of 3 weeks or less does not exceed the daily or weekly number of hours so specified.
Limitation on overtime
48. (1) Except as provided in subsection (2), an employer shall not employ any person in excess of 12 hours in any period of 24 hours or in excess of 60 hours in any period of 168 hours.
(2) The Commissioner may, in his discretion, approve in writing a temporary increase in the hours of work authorised by this Code in any establishment in the following circumstances—
(a) in the case of an accident, actual or threatened or urgent work to the plant or equipment, but only so far as may be necessary to avoid serious interference with the ordinary working of the establishment,
(b) in the event of abnormal pressure of work due to special circumstances in so far as the employer could not be expected to resort to other measures,
(c) in order to prevent the loss of perishable goods, but in no case shall the night rest period or, for employees working at night, the day rest period be less than 8 hours.
Payment where employee stopped or prevented from working full day or shift
49. (1) Where an employee is required to report for work and does so but is prevented from working by an act of God or force majeure, or is stopped from working by his employer or anyone lawfully acting for him, payment to such employee shall be made on the following basis—
(a) where such employee has worked for more than half a day, the employer shall pay such employee wages for a full day, or where such employee works for half a day or less than half a day, so however that the total number of hours worked is not less than two and one half hours, the employer shall pay such employee wages for half a day;
(b) where such employee has worked on a shift basis and such employee has worked more than half of the shift, the employer shall pay such employee wages for a full shift, or where such employee has worked half of the shift or less than half of the shift, so however that the total number of hours worked is not less than two and one half hours, the employer shall pay such employee wages for half a shift;
(c) where such employee works for less than two and one half hours, he shall be paid for the time so worked at his basic hourly rate of pay.

Pay for period of stand-by or being on call
50. (1) Where an employee is required by his employer to remain on stand-by or on call for any period on a scheduled work-day, he shall be regarded as being on duty for that period and be paid a stand-by allowance for the stand-by period and paid basic wages for actual hours worked.
(2) Where an employee is required by his employer to remain on stand-by or on call for any period in excess of 8 hours on a scheduled work-day, the employer shall pay to the employee, wages at the rate of at least 1½ times his basic hourly rate for the actual period worked.
(3) Where an employee is required by his employer to remain on stand-by or on call for any period on a rest day, the employer shall pay to the employee, wages at the rate of at least 1½ times his basic hourly rate of pay for the actual period worked.
(4) Where an employee is required by his employer to remain on stand-by or on call on a public holiday, the employer shall pay to the employee, in addition to any wage which he would have received had the employee not worked on that public holiday, an hourly wage at the rate of at least 1½ times his basic hourly rate of pay for the actual period worked.
(5) Where the employer provides the employee with a cellular phone, beeper or radio for the stand-by or on-call period, the employer shall only pay to the employee wages at the rate of his basic hourly rate for the actual period worked.
(6) This section shall not apply to an employee holding a position of supervision or management whose basic rate of pay and other terms and conditions of employment shall be fixed by his employers at a level which adequately compensates him.

Payment in respect of public holidays

51. Where an employee does not work for his employer on a public holiday, he shall suffer no loss of pay, that is to say, he shall be paid the basic wage he would have received for the work performed on that day, had it not been a public holiday, provided that—
(a) he worked on his scheduled work-day immediately before and his scheduled work day immediately after the said public holiday; and
(b) the public holiday was not one of his scheduled work-days.
Payment for work on public holidays
52. (1) Where an employer causes an employee to work on—
(a) a public holiday, or a special public holiday prescribed or appointed under the Public Holidays Act, R.S.A. c. P130;
(b) a Christmas Day;
(c) a Good Friday or Easter Monday;
(d) an agreed day of worship of the employee, which does not fall on a scheduled workday, the employer shall pay the employee, at the rate of twice his basic pay.
(2) In the case of employees remunerated on a piece work basis or by the task, the expression “basic pay” shall, for the purposes of this section, be deemed to be equal to the employee’s rate of earnings over the period of 13 weeks immediately preceding the date payment is made, divided by the number of days worked during that period.
(3) The provisions of this section shall not apply to—
(a) persons holding positions of supervision or management whose basic rate of pay and other terms and conditions of employment shall be fixed by their employers at a level which adequately compensate them;
(b) employees who are remunerated on a piece work basis or by the task and are not subject to continuous supervision.

Form of wages

53. (1) The money wages of an employee shall be payable in legal tender, provided that the payment of wages by cheque on a bank in Anguilla or by postal order shall be deemed to be payment in legal tender in cases in which payment in such manner is customary or necessary or is consented to by the employee.
(2) Where an employer pays an employee’s wages by cheque drawn on a bank in Anguilla and the cheque is dishonoured by non-acceptance upon presentment for payment, the employer is liable to pay to the employee, in addition to the employee’s wages, one-tenth of the employee’s wages.
(3) Nothing contained in subsection (1) shall be construed as prohibiting the giving of food, a dwelling-place, or other allowances and privileges in addition to money wages as a remuneration for services, except that—
(a) such allowances and privileges shall not include any alcoholic beverage or any noxious drugs;
(b) such allowances are appropriate for the personal use and benefit of the employee and his family; and
(c) such allowances and privileges are fairly evaluated at cost to the employer.
(4) Nothing in this section shall be construed as prohibiting the distribution to an employee of gratuities received from customers of the employer as part of remuneration for services, and the amount distributed in gratuities shall not be considered a part of any basic wage which has been fixed by Regulations made under section 38.

Wages to be paid to employee
54. Wages shall be paid directly to the employee to whom they are due or to a person specified by him in writing except as provided in section 57.

Deductions
55. (1) Subject to subsection (2), an employer may deduct from wages payable to an employee under any contract of employment the following—
(a) any tax, rate, or other deduction imposed by any law;
(b) any money advanced by the employer by way of loan, provided the amount deducted accords with the agreement made between the employer and the employee at the time of the loan, and that no interest, discount, or similar charge may be imposed on such loan;
(c) any sum of money which an employee has authorised in writing to be deducted for other purposes, except for the purpose of obtaining or retaining employment or for or in respect of any fine, or for bad or negligent work or for injury to the materials or other property of the employer (save when the injury is occasioned by the wilful misconduct of the workman).
(2) The total sum which may be deducted or stopped in any pay period shall not exceed one-third of the gross wage (excluding the value of any payments in kind) of the employee in the applicable pay period.

Statement of deductions

56. Where an employer makes a deduction from an employee’s wages, he shall, simultaneously with the payment made, furnish the employee with an accurate statement of wages earned and describe the deduction made.

Limitations on attachment or seizure of wages

57. (1) Notwithstanding anything to the contrary contained in any other law, the remuneration of an employee shall be liable to attachment or seizure in execution only within the following limits—
(a) up to one-half in respect of maintenance payments;
(b) up to one-third in respect of all debts of any kind and however contracted.
(2) The proportion prescribed in subsection (1)(b) shall not be applicable cumulatively on the ground that there are several debts or several creditors, the maximum proportion in all cases remaining fifty percent of the remuneration.
(3) The sums attached or seized shall be divided among the claimants in proportion to their established claims.