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.

Gratuities
58. (1) In any establishment in which the customer pays a gratuity which is a specified percentage of the customer’s bill, such gratuity shall be pooled and there shall be established in the establishment a Gratuities Committee for the periodic distribution of the amount so accumulated over every period of 4 weeks.

(2) The Gratuities Committee shall consist of an equal number of representatives of the employer and the employees and shall be respectively appointed by them, and the total number of such members shall not be less than 2 or more than 4.
(3) From the total amount of gratuity accumulated over every period of 4 weeks, 5% may be retained by the employer for administrative expenses, and the remainder of the gratuity shall be distributed among the employees of the establishment in accordance with a scheme approved by and registered with the Commissioner or where no scheme is registered, in accordance with a formula prescribed by the Governor in Council by regulation.
(4) For the purposes of this section, the Governor in Council may, by regulation, prescribe classes of employees who are entitled to be included in the distribution of gratuities by—
(a) the description of their position;
(b) the type of work they undertake;
(c)the level of their remuneration;
(d) the terms of their employment; or
(e) any combination of the above matters.
(5) A record shall be prepared showing the total amount of gratuity accumulated in each period of 4 weeks, the amount retained by the employer for administrative expenses, the list of employees to whom the balance has been distributed and the amount paid to each of those employees.
(6) Whoever contravenes subsection (3) is guilty of an offence and liable on conviction to a fine of $10,000 or to imprisonment of 6 months, and the employer shall be required to distribute the gratuity, in respect of which he was convicted, amongst his employees within such period as the Court may order.
Periods and place of wage payments
59. (1) Wages shall be paid at regular time intervals of—
(a) not more than 2 weeks, in the case of employees whose wages are fixed by the hour, or day, or week, or fortnight, or by the piece of work performed;
(b) not more than 1 month, in the case of employees whose wages are fixed on a monthly or annual basis; or
(c) in the case of employees employed to perform a task the completion of which requires 2 weeks or more, not more than one fortnight in proportion to the amount of work completed, but that the provisions of this section shall not apply where a collective agreement is entered into fixing other intervals for the payment of wages.
(2) Payment of wages shall be made at or near the work place and on ordinary working days only, but where, for practical reasons, this requirement cannot apply, the employer shall allow the employee reasonable time off with pay and provide him with such facilities as may be necessary to enable him to receive his wages without personal inconvenience.
(3) Any arrangement under subsection (2) shall be approved in writing by the Commissioner.
(4) An employer shall not pay wages to any employee at or within any retail shop or place engaged in the sale of spirits, wine, beer, or other spirituous or fermented liquor, save and except such wages as are paid by the resident owner or occupier of such shop or place to any employee bona fide employed by him in that shop or place.
Employee not to be required or coerced regarding manner of spending wages or to use stores or services
60. An employer shall not impose in any employment contract, or attempt in any manner to coerce or require an employee to—
(a) spend any part of his wages at any place or in a particular manner, or with any person; or
(b) purchase or make use of stores or services which may be available from shops or stores established at or in connection with any workplace.
Employees leave rights generally
61. Every employee shall be entitled to leave privileges during the course of his employment.
Vacation leave
62. (1) Subject to subsection (2), every employee who has successfully completed his probationary period shall be entitled to be granted vacation leave at the rates set out below in respect of each year of service—
(a) employees with less than 7 years service, to 12 normal working days; and
(b) employees with 7 years service and above, to 18 normal working days.
(2) Where the employment contract provides for periodic employment, an employee shall qualify for the grant of vacation leave if he has worked with the same employer for an aggregate of not less than 90 days in any period of 12 months.
(3) An employee to whom subsection (2) applies shall be entitled to be granted 1 day of vacation leave for every 26 days worked, in any period of 12 months, and any fraction of a day which is obtained by dividing a number of days worked by 26 shall be reckoned as 1 day.
(4) Where the employment contract provides for part-time employment, an employee shall earn vacation leave in ratio that their actual hours of employment bear to the standard workweek.
Vacation leave pay
63. (1) An employee to whom subsection (1) or (4) of section 62 applies shall be paid, in respect of his vacation leave, at the basic rate, at which he was paid in respect of the last normal working week, immediately prior to the commencement of such vacation.
(2) An employee to whom subsections (2) and (3) of section 62 applies shall be paid by his employer at the basic daily rate for each day of his vacation leave.
(3) An employee who is employed on a piece work basis or by the task shall, in respect of each day of his vacation leave, be paid 1/65th of the total basic wage, and of the cash equivalent of any payment in kind earned in respect of the last 13 weeks of employment (which need not be consecutive) immediately preceding the commencement of his vacation leave.
When vacation leave pay to be paid
64. The payment of vacation leave pay shall be made not later than the last working day prior to the commencement of such vacation leave, unless the employer and the employee, or their representatives agree otherwise.
Public holidays, etc. not to affect vacation leave
65. (1) Public holidays, whether or not they fall during the period of vacation leave, and agreed regular days of rest shall not be counted as a part of the annual vacation leave provided in section 62.
(2) Periods of absence from work due to maternity leave, or to illness or injury for a period not exceeding 3 months, shall not be deducted from the period of an employee’s service for the purpose of the calculation of vacation leave entitlement.
Mutual agreement affecting vacation leave
66. (1) The dates of the taking of earned vacation leave shall be fixed by agreement between the employer and the employee or their representatives and, by similar agreement, the employer may advance leave not yet earned.
(2) By mutual agreement between the employer and the employee or their representatives, the vacation leave earned by the employee may be allowed to accumulate for a period of 2 years.
(3) Where vacation leave is allowed to accumulate under subsection (2), such leave shall be granted and taken not later than 6 months after the end of the second year, and at least 2 weeks uninterrupted leave shall be taken before the end of the year following that in respect of which entitlement arises.
(4) Any agreement between the employer and the employee by which the employee would forego the taking of earned leave, shall be void and of no effect, notwithstanding that the employee would be paid by the employer the vacation leave remuneration to which he would be entitled if the leave were taken.
Vacation leave pay upon termination of employment
67. Any person whose employment is for any reason terminated shall receive vacation leave pay in respect of vacation leave earned but not yet taken, and such vacation leave pay shall be calculated proportionate to the length of service.
Sick leave
68. (1) Except as is provided for by section 69, an employee who becomes ill is, where service with his employer has been for a continuous period of not less than 3 months but not exceeding 10 years, entitled to sick leave with pay, for a period of 12 working days in any one year and 18 working days after 10 years.
(2) Sick leave shall be taken only in connection with actual illness or other physical incapacitation for work, evidence of which, in the form of a doctor’s certificate or other satisfactory means, shall be furnished by the involved employee at any time upon request of the employer made under subsection (5) and, in any event in respect of the third and any subsequent consecutive days of such leave.
(3) Where the employment contract provides for part-time employment, an employee shall be entitled to sick leave in accordance with subsection (1).
(4) An employee to whom this section applies shall not be entitled to sick leave with pay unless that employee—
(a) notifies the employer of the illness on the first day of his absence; and
(b) submits a medical certificate, signed by a physician or registered Government nurse, on the third day of his absence and the certificate shall indicate the likely period of absence if the illness lasts for more than 2 days.
(5) An employer may require an employee to furnish him with a medical certificate in respect of any purported sick leave, no matter how short, where the employer is of the opinion that it forms part of a pattern of absenteeism.
Sick leave for periodic employees
69. (1) An employee whose employment is periodic, and who has worked for the same employer for a total of not less than 65 days in that year, shall be entitled to be granted sick leave with pay in that year, at the rate of 1 day for every 26 days worked.
(2) Any fraction of a day, which is obtained by dividing a number of days worked by 26, shall be reckoned as 1 day.
(3) An employee to whom this section applies shall not be entitled to sick leave with pay unless he fulfils the conditions set out in section 68(4) as regards notification and the submission of a medical certificate.
Sick leave pay and social security benefit
70. (1) Subject to sections 68 and 69 in respect of sick leave taken in any period of 12 consecutive months, the employer shall pay to the employee the basic wages, which he would have received had the employee worked on each of those days.
(2) The minimum daily rate of sick leave pay payable to an employee to whom section 69 applies shall be the total basic wage paid to the employee in respect of the normal working week immediately preceding that in which the illness occurred divided by the number of working days in the employee’s normal working week.
(3) Subject to the Social Security Act, an employee who is entitled to sick leave pay under this section, as well as sickness benefit under the Social Security Act shall receive pay under that Act, and in addition the employer shall pay—
(a) sick leave pay at the basic rate of pay in respect of any waiting period not paid under the Social Security Act; and
(b) the difference by which the daily basic rate of pay exceeds the daily rate of sickness benefit paid under the Social Security Act for any day in respect of which sickness benefit is paid under that Act.
(4) Subject to the Social Security Act, an employee who is entitled to any injury benefit under the Social Security Act shall not simultaneously be entitled to full pay for a period of sick leave under this section and any sick leave pay to which he is entitled shall be reduced by any amount due under that Act.
(5) The reference in this section and section 75 to the Social Security Act includes the regulations made thereunder.
Entitlement to maternity and paternity leave
71. (1) On the production of a certificate from a medical practitioner stating the presumed date of confinement, a female employee who has completed 12 months continuous employment shall be granted a period of maternity leave by her employer.
(2) The period of maternity leave shall not be less than 13 weeks of which not less than 6 weeks shall be taken after the date of confinement.
(3) The remainder of the period of maternity leave may be taken before the presumed date of confinement or following the period of compulsory leave, or partly before the presumed date of confinement and partly following the period of compulsory leave.
(4) The leave before the presumed date of confinement shall be extended by any period elapsing between that date and the actual date of confinement, and the period of compulsory leave to be taken after confinement shall not be reduced on that account.
(5) Where a female employee is granted maternity leave under this section, the father of the child of the employee shall, upon application, be granted leave without pay for such period as requested in the application, but in any case not exceeding 2 weeks, to be taken during the period the mother is on confinement.
Additional period of maternity leave
72. Where a female employee to whom section 71 applies has been granted maternity leave under that section, and a medical practitioner certifies that any illness necessitating absence from work arises out of pregnancy or confinement or both, the employer shall grant the employee an additional period of maternity leave not exceeding 3 months.
Payment of maternity benefits
73. Where a female employee has been granted leave in accordance with sections 71 and 72, she shall be entitled to any benefits as may be prescribed under the Social Security Act or any other law for the time being amending or replacing it.
Employee not to be given notice of dismissal while on maternity leave
74. While a female employee is absent from work on maternity leave in accordance with sections 71 and 72 it shall not be lawful for an employer to give her notice of dismissal during such absence, or to give her notice of dismissal at such a time that the notice would expire during such absence.
Special leave for jury service and other purposes
75. (1) An employee required to attend court for jury service shall be granted leave with full pay by his employer for that purpose.
(2) An employee who is required to attend any hearing of an Arbitration Tribunal or Board of Inquiry constituted in accordance with Part 3 shall be granted leave on full pay by his employer for the purpose of attending such hearing.
(3) Any employee who wishes to refer a dispute or complaint to the Commissioner concerning that employee’s working conditions or contract of employment shall be given reasonable time off with full pay for that purpose.
Compassionate Leave
76. (1) In cases of death in the immediate family, an employee shall be granted leave of absence of 2 working days with basic pay. Granting additional leave with or without pay shall be at the discretion of the employer;
(2) In this section, “immediate family” includes parents, spouse and children of the employee.
Penalties and employee’s right to recover
77. (1) An employer who—
(a) enters into any agreement or contract or gives any remuneration for employment contrary to section 47, 48, 49, 50, 51, 52 53, 54, 55, 56, 57, 58, 59, 60 or 61, inclusive;
(b) makes any deduction from the wages of an employee or receives any payment from an employee contrary to the sections mentioned in paragraph (a); or
(c) otherwise contravenes any of the sections mentioned in paragraph (a), commits an offence and is liable on summary conviction to a fine of $1,500, and for a second or subsequent offence to a fine of $2,500.
(2) An employee shall be entitled to recover in a court so much of his wages including any entitlement under section 53(2) exclusive of sums lawfully deducted as shall not have been paid to him or her, plus interest at the rate of 10% per annum.
(3) An employer who contravenes section 45 or 46 commits an offence.
(4) An employer who commits an offence under subsection (3) is liable on summary conviction to a fine of $1,000, and in addition, the court may order the payment of any sum found due to any employee, if warranted by the circumstances.
(5) An employer who—
(a) refuses or fails to allow an employee to take a paid vacation leave to which he is entitled under the provisions of this Part,
(b) fails to pay an employee the vacation leave pay or proportionate vacation leave pay, sick leave pay, or special leave pay to which he is entitled under the provisions of this Part, commits an offence and is liable on summary conviction to a fine of $1,500, and in addition, if the court is satisfied that by reason of the offence the employer owes the employee a sum of money, it may order the payment of such sum, with or without interest, to the employee.
Penalty for not paying minimum basic wage rate
78. (1) Where a minimum basic wage rate has been fixed under section 38, an employer who fails to pay such wage rate commits an offence and is liable on summary conviction to a fine of $1,500.
(2) Where an employer has been convicted of failure to pay the minimum basic wage rate to an employee, then, if notice of intention so to do had been served upon the employer with the summons, warrant, or complaint, evidence may be given of any failure on the part of the employer to pay wages at or above the minimum rate to that employee during the 2 years immediately preceding the date on which the information was laid or the complaint was served; and, on proof of the failure, the court may order the employer to pay to the employee such sum as in the opinion of the court represents the difference between the amount which should have been paid during those years and that which was actually paid, plus 10% interest from the date any wage was due until it is paid.
(3) The power given in subsection (2) shall not be in derogation of any right of the employee to recover wages in any other proceeding, but the employee shall not be entitled, by a combination of this and any other proceeding, to recover more than the sum of the difference referred to in subsection (2).
(4) Where an employer who is charged with an offence under this section proves to the satisfaction of the court that he used due diligence to enforce the execution of Regulations made under section 38 and that the offence was in fact committed by an agent or some other person without the employer’s knowledge, consent, or connivance, he shall not be convicted of the offence, but this is without prejudice, to the power of the court—

(a) to proceed against the agent or other person for the offence; and

(b) to adjudge the employer to pay the sum due under subsection (2).

(5) On prosecution of an employer for failing to pay wages or rates at not less than the minimum wage or rate, the onus shall lie on that employer to prove that he has not paid wages at less than the minimum wage or rate.

Penalties where person other than employer may be violator

79. (1) Where an employer is charged with an offence under the provisions of this Part, the employer shall be entitled upon information duly laid by him, to have any other person whom the employer claims to be the actual offender brought before the court and if, after the commission of the offence is proved, the employer proves to the satisfaction of the court that he has used due diligence to comply with the provisions of this Part and that the other person has committed the offence in question without his knowledge, consent, or connivance, the other person shall be summarily convicted of the offence.

(2) If an offence is proved under subsection (1), the court may order the employer or the other person convicted thereunder to pay to the employee any sums found to have been lawfully owed under the provisions of this Part, and the order may be enforced in the same manner as a judgement or order in a civil case.

(3) The power of the court to issue an order under subsection (2) shall not be in derogation of any right of the employee to recover the sum by any other proceeding provided that no employee shall be entitled in any other proceeding to recover any amount which the court has ordered to be paid under subsection (2).

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