Supplement to Oficial Gazette No. 52 dated 18th June, 2012

EMPLOYMENT RIGHTS ACT, 2012 - 9 (Corrected Copy)

Arrangement o Seclions f Section

PARTIPRELIMINARY1.

Short title. Interpretation. Contract of employment. Continuous employment.

2.

3.4.

ADMINISTRATION

5.

Functions of Chief Labour Officer.

EMPLOYMENT RIGHTS TRIBUNAL 6. Establishment of Employment Rights Tribunal. Function of Tribunal. Exclusivejurisdiction ofTribunal in certain casesand manner of making complaints. Form of summons.

7.8.9.

10. Appearance before Tribunal.1 1.

Tribunal hearings to be open to pilblic except in certain cases.

12. Immunity of Tribunal.

Section

EMPLOYMENT PARTICULARS

Right to statement of employmentparticulars

13. Statement of employment particulars.14. Note on disciplinary procedures.

15. Statement of changes.

16. Power to require employment particulars of further matters. Right to itemisedpay statement17. Itemised pay statement.18. Power to require pay statement particulars of further matters.

Enforcement in respect of statements ofparticulars, changes and pay19. Complaints to Tribunal in respect of statement of employment particulars, changes and pay.20.

Determination of complaints.

2 1. Time limit for section 19 complaints.

PARTVTERMINATION OF EMPLOYMENT

Minimum period of notice22.Rights of employer and employee to minimum notice.

Certificate of employment record23. Right of employee to certificate of employment record.

(iii)

Section Enforcement in respect of minimum period of notice of termination

24. Complaints to Tribunal in respect of notice.25. Complaints to Tribunal in respect of certificate of employment record.

UNFAIR DISMISSAL

Dismissal26. Circumstances in which an employee is dismissed.

The right not to be unfairly dismissed27. The right. 28. Effective date of termination.

Fairness29. Fairness generally.

Contravention o f the right30. Unfair dismissal. 3 1. Redundancy.

Enforcement and remedies in respect of unfair dismissal32. Complaints to Tribunal in respect of unfair dismissal. 33. Remedies generally.

34. Order for reinstatement. 35. Order for re-engagement. 36. Reduction of employer's liability under section 34 or 35. 37. Award where order for reinstatement or re-engagement not made or not complied with.

PART VIIOTHER RIGHTS Rights in relation to luy-offund short-time 38. Protection in relation to lay-off and short-time. 39. Complaint to Tribunal in respect of lay-off or short-time.

40. Priority in hiring in certain cases.41. Complaint to the Tribunal in respect of priority in hiring.

PART VIIIDISPUTE SETTLEMENT PROCEDURE 42. Complaints to be referred to Chief Labour Officer in first instance. 43. Settlement of complaints by Chief Labour Officer. 44. Proceedings by Tribunal where settlement not achieved. 45. Action by Chief Labour Officer in respect of non-compliance.

Section

PARTIXMISCELLANEOUS

46. Tribunal's decisions final on matters other than law.47. How Tribunal's decisions may be enforced. 48. Appeal from Tribunal on questions of law. Regulations and Orders. Calculation of a week's wages.

49.

50.

5 1. Exemptions. 52. Commencement. FIRST SCHEDULE SECOND SCHEDULE THIRD SCHEDULE FOURTH SCHEDULE

FIFTH SCHEDULESIXTH SCHEDULE

BARBADOS

I assent ELLIOTT F. BELGRAVE Acting Governor-General 18th May, 2012.

pel

3 V I L 3

An Act to make new provision for the rights of employed -.-- . . - l , c - J .. rc ,. IL-.. ., .,U I L U JVII G L U L G U I I L U L L C I 3.

(By Proclamation.) ENACTED by the Parliament of Barbados as follows:

commencement.

PRELIMINARY1.

This Act may be cited as the Employment Rights Act,.2012.

short title.

2Interpretstion.

EMPLOYMENT RIGHTS ACT, 20 12 - 9

2.

(1) . In this Act,

"business" includes any trade or profession and any activity carried on by a body of persons, whether corporate or unincorporated; "Chief Labour Officer" means the person so appointed in the Public Service, and any person authorized in writing by the Chief Labour Officer to act on his behalf; "company" means a body corporate that is incorporated or continued under the Companies Act; "complaint" means a complaint made to the Tribunal under this Act by way of the Chief Labour Officer; "continuous employment" has the meaning given by section 4; "contract of employment" has the meaning given by section 3; "disability", in relation to an individual, means a physical or mental impairment of the individual that has a substantial and long-term adverse effect on his ability to carry on normal day-to-day activities; "effective date of termination" has the meaning given by section 28; "employee" means an individual who has entered into or works under, or, where the employment has ended, worked under, a contract of employment; "employer", in relation to an employee, means the person by whom the employee is, or, in a case where the employment has ended, was, employed; "employment" means employment under a contract of employment;

Cap. 308.

EMPLOYMENT RIGHTS ACT, 2012 - 9

3

"family member", in relation to an individual, means the spouse, father, mother, uncle, aunt, grandfather, grandmother, greatuncle, great-aunt, stepfather, stepmother, son, daughter, nephew, niece, grandson, granddaughter, great-nephew, great-niece, stepson, stepdaughter, brother, sister, brother of the half-blood or sister of the half-blood of the individual; "job", in relation to an employee, means the nature of the work which he is employed to do in accordance with his contract of employment and the capacity and place in which he is so employed; "lay off' and "lay-off' are to be construed in accordance with section 38(2); "lock-out" means the closing of a place of employment, or the suspension of work, or the refusal by an employer to continue to employ any number of persons employed by him in consequence of a dispute, done with a view to compelling those persons, or to aid another employer in compelling persons employed by him, to accept terms or conditions of or affecting employment; "medical practitioner" has the meaning given by section 2 ofthe Medical Profession Act; "normal working hours" has the meaning given by section 13(3); "position", in relation to an employee, means the following matters taken as a whole:(a)~ c2011-1. t

his status as an employee; the nature of his work; and his terms and conditions of employment;

(b) (c)

"redundancy" is to be construed in accordance with section 3 l(2) and (3); "short-time" is to be construed in accordance with section 38(3);

4

EMPLOYMENT RIGHTS ACT, 2012 - 9

"spouse" includes a party to a union other than marriage within the meaning of section 39 of the Family Law Act; "strike" means the cessation of work by a body of persons employed, acting in combination, or a concerted refusal, or a refusal under a common understanding, of any number of persons employed, to continue to work for an employer in consequence of a dispute, done as a means of compelling their employer or any person or body of persons employed, or to aid other employees in compelling their employer or any person or body of persons employed, to accept or not to accept terms or conditions of or affecting employment; " S U C C ~ S S O ~relation to the employer of an employee, means, in ~ ' , subject to subsection (2), a person who, in consequence of a change occurring, whether by virtue of a sale or other disposition or by operation of law, in the ownership of the business for the purposes of which the employee was employed, has become the owner of the business or a part of the business; "trade union" has the meaning given by section 2 of the Trade Unions Act: "Tribunal" means the Employment Rights Tribunal established by section 6; "wages" means remuneration or earnings, however designated or calculated, which are capable of being expressed in terms of money, are fixed by mutual agreement or by law and are payable by an employer to an employee by virtue of a contract of employment; "week" means a period of 7 consecutive days; "workplace" means any place where persons work or are employed under a contract of employment.

Cap. 214.

Cap. 361.

.

EMPLOYMENT RIGHTS ACT, 20 12 - 9

(2) The definition of "successor" in subsection (1) has effect, subject to the necessary modifications, in relation to a case where

(a) the person by whom a business or part of a business isowned immediately before a change is one of the persons by whom, whether as partners, trustees or otherwise, it is owned immediately after the change; or

(b)

the persons by whom a business or part of a business is owned immediately before a change, whether as partners, trustees or otherwise, include the persons or one or more of the persons by whom it is owned immediately after the change,

as it has effect where the previous owner and the new owner are wholly different persons.

3. (1) For the purposes of this Act "contract of employment" means a contract of service or apprenticeship, whether express or implied and if it is expressed, whether oral or in writing.(2) The factors set out in the First Schedule shall be considered in determining, in any particular case, whether a contract of employment exists.

contract of employment.

.

First

4. (1) The period of continuous employment of an employee shall begin from and include the first day on which he begins to work for an employer, including any probationary period, and shall continue up to and include the date of termination of his employment.

continuous employment

(2) It shall be presumed, unless the contrary is shown, that the employment of an employee with the same employer is continuous, whether or not the employee remains in the same job throughout the employment.

EMPLOYMENT RIGHTS ACT, 2012 - 9

(3) The absence of an employee from work is not to be treated as an interruption of his continuity of employment where the absence from work occurred for any of the following reasons:(a)

that he was gt'anted and took holiday with pay, or any other leave to which he is entitled under any enactment or under a contract or agreement binding on him and his employer; that he was (i) for not more than 2 consecutive working days, on sick leave that was not certified by a medical practitioner provided that he had, on each day, notified the employer of his absence;

(b)

(ii) on sick leave certified by a medical practitioner provided that he submitted to his employer, the certificate of the medical practitioner; or (iii) on a combination of both types of sick leave described in sub-paragraphs (i) and (ii);

(c) that he was suspended, with or without pay, in accordancewith an enactment or with a contract or agreement binding on him and his employer; (d) that after his contract had been terminated, he was reinstated;

(e) that after his contract had been terminated he was re-engaged under this Act or another enactment or under a contract or agreement binding on him and his employer, unless and to the extent that this Act or that enactment or contract or agreement provides to the contrary;

fl

that he was laid off by his employer; diskase or a work-related accident;

( ' that he was unable to work on account of an occupational

EMPLOYMENT RIGHTS ACT. 20 12 - 9

(h) that there was a lock-out by his employer;(i)that the agreement of his employer was given;

.

0)

that he was required to perform a national duty described in section 30(2),

and any period of time that elapsed in the circumstances described in paragraphs (a) to 0 ) counts for the purpose of calculating his period of continuous employment.(4) A period of time during which an employee is absent from work because of his participation in a strike is not to be treated as an interruption of his continuity of employment.

(5) Short-term contracts granted to an employee in succession at intervals of less than 42 days count for the purpose of calculating his period of continuous employment.(6) Where

(a) a transfer from a previous employer to a successor occurs,whether by virtue of a sale or other disposition or by operation of law, in the ownership of the business for the purposes of which an employee is employed; (b) the employment of the employee is not expressly terminated by the previous employer nor is any severance payment paid or payable under the Severance Payments Act in connection with the transfer; and

Cap. 355A

(c) the successor, without interruption, employs the employee for the purposes of the business,then the employment of the employee with the successor, beginning on the date of the transfer, shall be deemed to be continuous with his employment with the previous employer immediately before that date, and the 2 periods of employment shall be deemed to be a single period of continuous employment with the successor.

EMPLOYMENT RIGHTS ACT, 2012 - 9

ADMINISTRATIONFunct~ons Labour officer

5. (1) The Chief Labour Officer shall be responsible for the application, administration and enforcement of this Act and for such other matters relating to employment rights as the Minister may direct.(2) The functions of the Chief Labour Officer are to

(a) receive and investigate all representations made to himconcerning this Act;

(b) provide information and advice to employers and employees on the application of this Act or any other enactment relating to employment rights; (c) make periodic inspections of places of employment to ensure that there is full compliance with all laws relating to employment rights, conditions of employment and the protection of employees in their occupation and where necessary, provide information and advice as to the means of and time frame for, compliance with such laws; and (d) prepare such reports on matters of employment rights as may be required under this Act.( 3 ) The Chief Labour Officer shall have the power to

(a) enter, examine or inspect at any reasonable time, whether byday or night, with or without previous notice, any premises or place in which he has reasonable cause to believe that any person may be employed, or which he believes to be liable to inspection;

(b)

take with him any other person, including a member of the Police Force, to enable him to carry out or to assist him in carrying out his functions;

EMPLOYMENT RIGHTS ACT, 2012 - 9

(c) carry out any examination, test or enquiry which he considers necessary in order to satisfy himself that the laws relating to employment are being strictly observed; (d) question, alone or in the presence of witnesses, the employer or his employees on any matter concerning the application of any law relating to employment in so far as it affects them;(e)

require an employer to provide any information requested by him as to the wages, hours of work or other conditions of employment of his employees; apply to any other person for information where he considers the information necessary in the discharge of his functions;

(

(g) require the production of any books, registers or other documents, the keeping of which is required by any law relating to employment, in order to determine whether they are in conformity with such law;(h) copy or take extracts from such books, registers or other documents or, where he considers it necessary or expedient to do so, remove such books, registers or documents;

(i)

take or remove for the purpose of analysis, samples of materials or substances used or handled by employees in the course of their employment; and direct the posting of notices required by this Act or any other enactment relating to employment.

)

(4) The Chief Labour Officer shall notify the employer or his representative of his presence before carrying out an inspection pursuant to subsection (3), unless he considers that such notification would be prejudicial to the performance of his functions.

EMPLOYMENT RIGHTS ACT. 2012 - 9

(5) Where the Chief Labour Officer takes or removes any article pursuant to subsection (3)(h)or (i), he shall give to the employer or his representative, written notification of the article taken or removed and shall provide for the safe custody of the article until such time as the article may be returned or where appropriate, discarded.(6) Any person who

(a) wilfully obstructs, hinders or delays the Chief Labour Officer in the exercise of any of his functions under this Act;(b) without reasonable cause, fails to comply with any lawful direction given or made by the Chief Labour Officer under this Act;(c)

without reasonable cause, fails to produce any book, register or other document which he is required to produce under this Act; conceals any employee who is required to appear before or be questioned by the Chief Labour Officer, or who otherwise prevents any such employee from so appearing or being questioned; wilfully or without reasonable cause, refuses or neglects to supply within the specified time, information required by the Chief Labour Officer under subsection (3);

(d)

(e)

wilfully supplies or causes to be supplied to the Chief Labour @ I Officer any false information; or

(g) refuses to answer any question lawfully put by the ChiefLabour Officer for the purposes of this Act, is guilty of an offence and is liable onsummary conviction to a fine of $20 000 or to imprisonment for 6 months or to both.

EMPLOYMENT RIGHTS ACT, 2012 - 9

(7) Notwithstanding subsection (6), a person who fails or refuses to answer any question or make any statement that may incriminate him is not guilty of an offence under that subsection.(8) The Chief Labour Officer may institute proceedings in his own name against any person for any contravention of, or offence committed under, this Act, and may appear in and conduct any such proceedings. (9) No prosecution for any offence under this Act shall be instituted after the expiration of one year from the date of the commission of the offence.

EMPLOYMENT RIGHTS TRIBUNAL 6. (1) There is established a tribunal called the Employment Rights Tribunal. (2) The Second Schedule has effect as to the constitution of the Tribunal and otherwise in relation to the Tribunal. (3) Subject to this Act, the Tribunal shall regulate its own procedure and may make Rules for that purpose.7. (1) The function of the Tribunal is to enforce the rights conferred upon persons by this Act and for that purpose to exercise the jurisdiction specified in subsection (2).Functionof Establishment of Employment ~i~htsSchedule.

n,' :y

(2) The jurisdiction of the Tribunal is to determine complaints made to it under this Act and, subject to section 48, to make awards and other decisions in relation to those complaints in accordance with its powers under this Act. (3) Subject to subsection (4), sections 11,12,13,14,15 and 21 of the Commissions of Inquiry Act apply in respect of the determination of complaints by the Tribunal, with such modifications and adaptations as may be necessary, as those sections apply in relation to an investigation by a commission under that Act.

Cap. 112.

12

EMPLOYMENT RIGHTS ACT, 20 12 - 9

Cap. 112

(4) Where there is a conflict between this Act and the Commissions of Inquiry Act, this,Act shall prevail.8. (1) The remedy of a person for infringement of a right conferred on him by this Act, where provision is made for a complaint to the Tribunal, is by way of a complaint to the Tribunal and not otherwise. (2) A complaint to be made to the Tribunal shall, subject to sections 42 .to 44, be made through the Chief Labour Officer.

Exclusive jurisdiction of Tribunal in certain cases and manner of making complaints.

(3) A complaint shall be taken to have been made to the Tribunal on the date that it is presented to the Chief Labour Officer pursuant to section 42.Form of summons

9. A summons to be issued by the Tribunal pursuant to its function in section 7 shall be

Third Schedule.

(a) in the form prescribed in the Third Schedule; and(b) signed by the Chairman of the Tribunal.

Appearance before Tribunal.

10. A person may appear before the Tribunal in person or may be represented by

(a) legal counsel;(b) a representative of a trade union or an employer's association; or (c) any other person whom he desires to represent him.Tribunal hearings to be open to public except in certain

11. Except in cases where sexual harassment is alleged, which shall be held in camera, hearings of the Tribunal shall be open to the public.

cases.

EMPLOYMENT RIGHTS ACT, 2012 - 9

13ImmunityOfTribUna'.

12. Every member of the Tribunal and the Secretary of the Tribunal shall have the like protection and privileges in case of any action or suit brought against him for any act done as is by law given to any magistrate in the execution of his office.

EMPLOYMENT PARTICULARS

Right to statement of employment particulars13. (1) Where a contract of employment is contemplated, the employer shall, prior to or forthwith upon the commencement of the contract, give the employee a written statement of the particulars of the employment.

2;;':"'

statement of

(2) The statement shall contain

(a) the name of the employee and the name and address of the employer;

(6)

the date when the employment begins or began, as the case may be;

(c) the date on which the period of continuous employment of the employee begins or began, as the case may be, taking into account any employment with a previous employer which counts towards that period;(d) the title of the job which the employee is employed to do; (e) a description of the work for which he is employed;@

the scale or rate of wages, or the method of calculating wages;

(; the intervals at which wages are paid; g)(h) the normal working hours;(i)

the period of probation, if any;

EMPLOYMENT RIGHTS ACT, 2012 - 9

)

the length of notice which the employee is obliged to give and entitled to receive in respect of termination of his contract of employment;

(k) the period for which the employment is expected to continue where the employment is not intended to be permanent; or the date when the employment is to end, where it is for'a fixed term;(I)

the place of work or, where the employee is required or permitted to work at various places, an indication of that and of the address of the employer;

(m) any collective agreements which directly affect the terms and conditions of the employment including, where the employer is not a party, the persons by whom the collective agreements were made; and(n) any terms and conditions relating to any of the following:

(i)

entitlement to holidays and holiday pay, the particulars given being sufficient to enable the entitlement of the employee, including any entitlement to accrued holiday pay on the termination of employment, to be precisely calculated;

(ii) incapacity for work owing to sickness or injury, including any provision for sick pay or a health scheme; (iii) pensions and pension schemes.

(3) The expression "normal working hours", in relation to an employee, means those hours which are stated in his contract of employment to be his normal working hours.

EMPLOYMENT RIGHTS ACT, 2012 - 9

15Note on disciplinary procedures.

14. (1) A statement under section 13 shall include a note that specifies

(a) any disciplinary rules applicable to the employee, or refers the employee to a document specifying those rules including a reference to the Standard Disciplinary Procedures set out in the Fourth Schedule; and(b) by description or otherwise(i) a person to whom the employee can apply where the employee is dissatisfied with any disciplinary decision relating to him; (ii) a person to whom the employee can apply for the purpose of seeking redress of any grievance relating to his employment. (2) The note in subsection (1) shall

Fourth Schedule.

(a) indicate the manner in which the application should be made; and(b) where there are any further steps to be taken as a consequence of the application, explain the steps or refer to a document explaining the steps.(3) An employer shall ensure that the documents referred to in subsection ( I ) are reasonably accessible to his employee. 15. (1) Where, after a statement under section 13 is given, there is a change in any of the matters, particulars of which are required by sections 13 and 14 to be included or referred to in a statement under section 13, the employer shall give to the employee a written statement containing particulars of the change. (2) A statement under subsection (1) shall be given at the earliest opportunity and, in any event, not later than 30 days after the change.statement changes.

16Power to require employment particulars of matters.

EMPLOYMENT RIGHTS ACT, 2012 - 9

16. The Minister may by Order provide that section 13 shall have effect as if particulars of such further matters as may be specified in the Order were included in the particulars required by that section; and, for that purpose, the Order may include such provisions amending section 13 as appear to the Minister to be expedient.

Right to itemisedpay statementItemised Pay statement.

17. (1) An employee has the right to receive from his employer, at or before the time at which any payment of wages is made to him, a written, itemised pay statement.(2) The statement shall include particulars of

(a) the gross amount of wages;(b) the amounts of any variable or fixed deductions from the gross amount, and the purposes for which those deductions are made;

(c) the net amount of wages payable; and

(d) the date of payment and the dates of the pay period.Power to require pay statement particularsmatter