Approximately five months after the new Shops Act came into effect, there are concerns being expressed by employers about some definitions contained in the legislation.
The Act removes general public holidays from being closed days, with the exception of Good Friday, Easter Sunday, Independence Day and Christmas Day.
However, employers say there is need for clarity on what category of workers and industries were included and how payments for holidays should be administered. They also say there are issues relating to shift workers, transportation and security of workers after certain hours.
The new Act allows for shops to remain open for business from 7 a.m. on Mondays continuously through to 10 p.m. on Sundays.
During a recent panel discussion on The Mechanics of the Shops Act at the Lloyd Erskine Sandiford Centre, Executive Director of the Barbados Employers’ Confederation (BEC) Tony Walcott said the legislation was not brought to Parliament with the level of engagement the BEC would have desired.
“Ambiguities have flourished and queries have been bountiful,” he said.
He added that not only was there concern about the definition of “shop assistant”, which could include administrative and support staff, “additionally, ambiguity arises in cases of a receptionist or restaurant supervisor, for example, whose core duties may involve some of those listed under the shop assistant definition in the Act”.
Walcott said members had also raised questions as to whether commercial banks and other financial institutions were covered by the Act.
Under the legislation, a shop means any premises or place in which a person conducts, manages or carries on any retail or wholesale trade or business or conducts business by providing services in respect of the sale or hire of commodities. It also includes any place used for the storage of goods, receipt of order for goods or the dispatch or delivery of goods dealt with in the business.
Meanwhile, shop assistant is defined as any person, except a member of the occupier’s family, directly and indirectly employed in operations carried on for the purpose of the sale or hire of articles or employed in connection with the trade or business of a shop, including clerical or other office work.
“We may want to reconsider the origin of the development of the Shops Act and what types of enterprise was intended to be covered, what ‘shop’ meant and the category of employee which the legislation sought to protect in the post 1938 period. The new Act certainly casts its net so wide that almost every business establishment is caught,” said Walcott.
He said when it comes to flexible work arrangements, perhaps one of the biggest challenges would be “resistance from the labour unions”, adding that there would be a need for renegotiation of collective agreements among other things.
“I think the union would see that as a loss of acquired rights,” said Walcott.
However, Senior Labour Officer Wayne Sobers gave the assurance that there could be “hardly any disagreement with the desire and need for flexibility”.
Agreeing that the Act was not perfect, he acknowledged that there would be need for continuous dialogue and mutual agreement from all sides.
Meanwhile, attorney at law, Patterson Cheltenham, QC, warned that with the new Shops Act, employers should be careful to ensure they recognized the religious day of observation of their employees.
He also cautioned employers not to give workers “labels” or “titles” so they could fall within the definition of “shop assistants”.
“There is still a lot of work to be done with it. And I think the Labour Office certainly has a lot of mechanical work to do with it,” said Cheltenham, as he raised the issues of security and transportation for workers at night.
He pointed out that it was expected that the new Act, “like all new pieces of legislation” would be “fraught with difficulty” because the “wrong” word was used in some cases or words that did not fully convey the meaning intended.
Earlier, the Barbados Workers’ Union had indicated that while it was not opposed to the idea of a 24/7 society, a number of infrastructural changes would have to be put in place, including childcare and elderly care facilities and other supporting services such as the public transportation system and improved street lighting.