The Minimum Wage Bill 2017 was recently debated in the Houses of Parliament. The long title describes it as being “[a]n Act to make provision for (a) the establishment of a Minimum Wage Board; (b) the making of Minimum Wage Orders by the Minister to establish either a minimum wage to be applied generally or a minimum wage for employees in a specified group or sector; (c) for the repeal of the Wages Council Act, Cap. 362; and (d) related matters.”
Section 3 of the Bill establishes the Board whose function is to advise the Minister (one assumes the Minister responsible for Labour) on the question of a national minimum wage, group/sector minimum wage and “terms and conditions of service and the minimum work conditions of an employee to whom a minimum wage applies.” In discharging this function, the Board is required to gather and keep statistical information, continuously review it and report to the Minister, “consider and advise the Minister” and make recommendations as to what the minimum wage should be.
Mind you, there is no requirement that a minimum wage be fixed. Section 5 simply states that “the Board, where it is of the opinion that the Minister should fix a minimum wage or make specific provision regarding the minimum terms and condition of service, forward a recommendation to the Minister.” The recommendation should be based on a consideration of the “rate of inflation, cost of living and general level of wages in Barbados, contributions payable and benefits provided under the National Insurance Act, Cap. 47; the taxes to be deducted; economic factors including the requirements of economic development, level of productivity and the desirability of attaining and maintaining high levels of employment; payment for similar jobs…in CARICOM.”
The discretion rests fully with the Minister whether to impose a minimum wage or not. If so, a ministerial order must be issued pursuant to section 6. Such orders may be revoked or amended by further order. Public notice must be given allowing any interested person time in which to object to the making of the order and those objections are reviewed by the Board. At the end of the day, however, section 7 still allows the Minister the discretion to do as he feels like (the language of the Bill is “as he thinks fit” but poh-tay-toh /poh-tah-toh).
Obviously where a minimum wage is prescribed, any employer must comply and pay at least the minimum wage in addition to any overtime, commission or allowance to which the employee would have otherwise been entitled. Section 9 also mentions a duty to keep records (which already exists in other legislation) and section 10 creates a duty to advise employees that a minimum wage order exists and to publish it in the workplace. All offences under this Act are subject to a penalty of $10,000 and/or 2 years’ imprisonment and a further $500.00 for each day that the employer continues to be in breach.
The Chief Labour Officer usually has oversight in relation to such matters and, true to form, section 11 allows him to require production of records and enter the work premises, interview employees and employers and require the signing of a “declaration of the truth in respect of the information” given in relation to the matter under investigation. Someone incidentally remembered the constitution and tacked on the proviso that “no person shall be required to incriminate himself” but we are not told if guilt is to be inferred from the failure / refusal to sign the declaration.
Passing legislation is all well and good but here are my thoughts, comments and/or queries:
1. Yes, we need minimum wage legislation because we still have ‘massa’ in different guises in this country.
2. Why on earth do we need a Board to do functions already assigned to other people? For example, does the Statistical Department not have the job of recording certain information?
3. Do we need a Board of nine persons to be paid out of the Treasury to advise a minister that people need to be paid more than chicken feed? Mind you, these nine persons are going to be paid more than chicken feed.
4. Should the Minister have so much discretion to ignore the Board and fail to make an order after we’ve wasted so much money in the first place?
5. Part of the factors to be considered are the wages paid for similar jobs in CARICOM. Last time I checked, we were boasting or complaining (depending on which side of the fence you sit on) that Barbados has the highest wages in the Caribbean and that it keeps us out of the market for labour intensive jobs.
6. Frankly, no one seems to realize that there is a difference between a minimum wage and a living wage. You can be paid a minimum wage and with only the basics, still not be able to survive.
7. I have no idea why union leaders are so happy. This Bill is similar to those sheer curtains that you use as decoration behind the real curtains. If someone actually turns on a light, you can see straight through them.
8. The Board composition is really a mini social partnership (three government appointees, three employers’ representatives and three union representatives). I believe one trade unionist had previously described the partnership as “sinister” and being used as “a tool to undermine the working class.” The same employers who have to be told that they must pay a minimum wage are involved in determining that wage?
9. The only good thing about this legislation is that it binds the Crown (the Government) but they already pay higher wages and benefits anyway.
10. Can we please have holistic labour legislation instead of the piecemeal approach to workers’ rights?
(Alicia Archer is an attorney-at-law in private practice)