Impact of the Employment Amendment Act 2020 and Labour Relations and Trade Union (Consolidation) Act 2020

Tuesday, January 12th, 2021

Today, the Minister of Labour released the following statement on the impact of two critical pieces of legislation to the Bermuda labour force:

  • The Employment Amendment Act 2020; and
  • The Trade Union and Labour Relations (Consolidation) Act 2020.

The overarching aim of the Ministry of Labour is the expansion of jobs within Bermuda. In order to ensure that this is achieved, the legislative framework in place must be up to date, comprehensive and fair.

The amendments to the Employment Act 2000, which sets out the minimum standard for employment relationships in Bermuda, strengthens employers and employees' rights and obligations.

Before these amendments, the Human Rights Act was the only legislation that spoke to sexual harassment and bullying. With the amendments to the Employment Act 2000, not only is there a comprehensive definition of both terms, but employers are now required to have a policy in place that protects all persons from sexual harassment and bullying in the workplace.  Employers who do not have such a policy in place now have the opportunity to protect their workforce from such acts with the guidance provided in the legislation. Employees can rest assured that there are protections in place at their place of employment.

The Ministry has seen a notable rise in contractor agreements. It is expected that this will continue as we work our way through this medical crisis and the economic impacts it is having on our economy. However, it should be made clear that the concern for the Ministry is “involuntary” contractor agreements, that is, those who are coerced into executing independent contractor agreements when their relationship with the employer is in fact that of an employee and should be treated as such. 

The Ministry understands that the current pandemic has financially impacted many businesses. However, there is a distinction between an employee and an independent contractor. It is hoped the legislative amendment that allows the Manager to issue guidance on this matter, helps educate employers and employees on this distinction and protect workers’ rights. This guidance will be agreed by the Labour Advisory Council, which is a tripartite committee of Government, Union and Employer representatives before it is provided to the public.

Another important amendment to the Employment Act 2000 is the inclusion of meal breaks in a worker’s statement of employment. This provided that every worker or employee (excluding the expressed exceptions) is entitled to a 30-minute meal break after five continuous work hours. This amendment is in line with international best practice and is long overdue.

Employers are now required to conduct a performance review of employees during their probationary period to ensure that employees are aware of their performance and areas that may require improvement and foster effective communication between an employer and employee.

Two amendments that are considered essential for the family are the relaxed requirement to work for one completed year before being entitled to paid time off from work to attend ante-natal appointments and bereavement leave being extended to include grandparents, great-grandparents, grandchildren and great-grandchildren.

Another important amendment is the requirement that an employer shall provide final payment of wages or other remuneration pay within seven days of termination or at the next regular payment cycle, whichever is the longer.  

The Opposition has requested that this amendment be amended to state within 14 days or of termination however we believe that it is important that persons are paid what is rightly owed to them at the end of their employment, in a timely manner. When the next regular payment after termination is in less than seven days, employers have the opportunity to use the full seven days to ensure that all remuneration is calculated and paid. This Act sets out the minimum standard, and it is important to recognize that persons who, in most instances have lost their primary source of income, should not have to wait an inordinate amount of time to be compensated. 

In addition to the amendments to the Employment Act 2000, the Ministry sought to modernize and clarify areas of the existing labour legislation to ensure that it is in line with international best practices. This was achieved by consolidating the Labour Relations Act, the Trade Union Act and the Labour Disputes Act into one Act, entitled the Labour Relations and Trade Union (Consolidation) Act 2020 (the “TULRCA”).  

Amendments to the TULRCA address the various challenges posed by the labour legislation and bring it in line with modern principles for laws governing the relationship between businesses and trade unions, and between employers and employees. 

One of the major amendments that concern this Act and amend the Employment Act 2000 is the consolidation of the various tribunals, arbitration panels, and boards into one Tribunal designed to hear all labour and employment-related disputes. This will allow for the expedient resolution of disputes and the streamlining of disputes.

The Tribunal will be comprised of not more than 30 persons, being not more than 10 persons with experience to represent interests of employers, not more than 10 persons with experience to represent interests of employees and not more than 10 barristers or attorneys of not less than either years’ standing who possess Bermudian status.

The establishment of civil penalties and a civil penalty regime to replace most offences requiring court appearances will lend to faster less laborious processes with both the Labour Relations Manager and the Employment and Labour Relations Tribunal being able to impose penalties. 

In relation to the certification and decertification process, the definition of management person has been amended to make clear that only those position with management responsibility is considered management persons. The previous definition included persons who exercise disciplinary control; however, this was problematic as disciplinary control was not quantified and included a wide range of discipline, from verbal warnings to terminations and everything in-between. We found that it was necessary to be very clear within the legislation regarding management persons' role to avoid non-management persons from being incorrectly classified.

Additionally, the certification process has been amended to allow for automatic certification and decertification where the union (in respect of certification where the employer agrees) and the workers (in respect of decertification) can show that more than 60 per cent of the workers in the bargaining unit support the same.

Another important amendment for the certification process is the agency shop. Currently, where an agency shop is in place, a worker who is not a union member may choose to pay 100 per cent to a union or contribute 100 per cent to a charity. Under the TULRCA, agency shop will be automatic upon certification, and non-union members will be required to pay appropriate contributions to the respective union in lieu of membership. It goes without saying that all workers within the bargaining unit, union members and non-union members benefit from the union's negotiations on their behalf. As a result, this Act provides for appropriate contribution in this respect.

Pursuant to the third schedule of the TULRCA, prisons have been added as an essential service. An assessment of the current list of essential services found in the First Schedule to the Labour Relations Act 1975 was conducted and factors considered were the work conditions, environmental circumstances, probability, or even the possibility that human life or public safety would suffer if a work stoppage interrupted the duties of these workers. Along with other considered amendments, it was determined that ‘Prisons’ be added to the list of essential services under this Act. This would encompass all staff working within the Bermuda Prison system.

It was proposed by the Opposition that amendments be made to this Schedule to add specific services conducted on the ports and docks. However, the Schedule is clear that port and dock services are covered as essential work and require a 21-day strike notice. It is in line with the wording and intention of the Act to leave the current wording in the Schedule, similar to the provision for “Prisons and Corrections” and “Electricity” and “ Hospital and Nursing”.

These amendments will come into operation on 1 June 2021 to allow employees, employers and their respective representatives to familiarize themselves with its provisions and make the necessary changes to their current employment contracts and/or handbooks, to ensure compliance.

The Ministry has met with the Unions regarding their concerns as it pertains to the decertification process and the parties have agreed on a way forward. 

The Ministry of Labour is confident that these necessary amendments will support workers, enhance their rights, and are in Bermuda's best interest.

Thank you.

 

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