#BTColumn – In defence of Barbadian workers

The views and opinions expressed by the author(s) do not represent the official position of Barbados TODAY.

by Kenneth Burke

Kick the can down the road and our problems will miraculously disappear.

This seems to be the mantra of this Mia Mottley administration as the future of the least privileged in our society continues to be wantonly mortgaged.

While it is expressly stated that the Employment Rights Act does not bind government, government has a moral duty to act as a model employer.

Thus, it should not be seen to be taking acts which normally would be seen to be exploitative of its workers. How else could it be seen when this administration continues to employ workers, giving them contracts for service which if challenged would be of dubious legality?   

Any objective test of the work arrangements of these employees will lean heavily towards them being classified as employed under a contract of service rather than being employed under one for service.

There is adequate and abundant case law to guide our legal practitioners in their determination, but this government, with the blessing of the Attorney General’s department, confident in the mass support and overwhelming mandate, feel emboldened to continue unabated to trample long established and hard-earned rights of its workers.

This practice will have an adverse effect on these workers both in the short and long term. Can you imagine a worker employed by the National Conservation commission, using dangerous equipment getting injured on the job and cannot seek injury or disablement benefits from the N.I.S because self-employed persons are not contributors to that area of the fund.

It gets worse, this practice will have a deleterious effect on the viability of the N.I.S. itself as it will lose significantly on employee contributions.

Currently despite the vast numbers of persons employed in both the formal and informal sectors the role of self-employed persons in Barbados is just over 2,000.

The framers of the N.I.S regulations in their wisdom thought it best to put the onus on the employer to deduct contributions directly from the wages and salaries of workers rather than to rely on them to make their own contributions.

Who among us, working for meagre wages or salaries, would prioritise the payment of contributions over food, rent and other living expenses.

Further, it is clear and known by many that those self-employed professionals in the formal sectors, who are non-compliant, feel that they can take care of themselves and see the N.I.S. as an unnecessary imposition.

Already the N.I.S has taken a multimillion dollar hit as due to the structural adjustment process, adding another category of workers who will not be fully compliant with the scheme would further compromise it.

What is needed is for another Gladwyn Ophelia King to come forward and challenge this travesty in the law courts of this country.

It is doubtful if a court of first instance would want to overturn the well-reasoned judgement of Chief Justice Simmons in the Sagicor case.

It’s quite far-fetched to believe that a person engaged to answer the telephone in the police department or one hired to do landscaping in NCC or a person hired to provide home help care to our elderly, would be categorised as being employed under a contract for service/self-employed.

No one though wants to be a martyr and it is doubtful if an employee so contracted would want to challenge the validity of that contract for fear of victimisation.

I also posit that there is also a role for the N.I.S Board to play in these matters as under the Determination of Claims and Questions Regulations of the National Insurance and Social Security Regulations, the Board has the binding power to determine under which category a worker falls and their decision is final.

One however doubts that a Board appointed by the Minister would have the collective intestinal fortitude to make a decision that would overturn stated Government policy.

The High Courts may be the best option.

We are barreling full steam ahead in an effort to save this country economically. We appreciate that everyone must make a contribution to this effort, but the poor among us are being asked to pay too heavy a price. Just to hold a job to eke out an existence they are being made to give up their rights and to sacrifice their futures.

Surely the drafters of these accursed contracts know the test to determine a contract of service. They must know that these workers are not involved in businesses of their own and are not exposed to risk of loss if the organisation fails; their hours of work are fixed; they do not invoice the client for their services; they use the tools and equipment of Government; they are all subject to the discipline in their respective organisations; and, importantly they cannot sub-contract the work and therefore they cannot be deemed
to be self-employed. Madam Prime Minister, the Government that you lead is taking advantage of the under-privileged and that should not be allowed to happen “bout Hey.”

This column was offered as a Letter to the Editor.