Workplace lawyers churn up fears over bill

| 23/07/2015 | 52 Comments
Cayman News Service

Huw Moses at the Chamber of Commerce

(CNS): The draftsmen need to go back and have another look at several provisions in the labour bill, local lawyer Huw Moses has said. As employers packed the Chamber of Commerce meeting room Wednesday, Moses and attorney Venesha McLean gave an overview of the draft labour law, stirring up concerns about the challenges the legislation would present to employers. From the effective removal of a probationary period to the possibility of employees holding their bosses to ransom, Moses said the legislation had to be “tweaked”, otherwise there was trouble ahead.

Government officials, however, accused the lawyers of scaremongering and said that the draft was still a work in progress and everyone’s contribution would be considered. Director of Labour and Pensions Mario Ebanks said that many of the fears raised by Moses in his presentation to local employers would be addressed during the refining process.

All previous efforts at modernizing Cayman’s labour law have run up against backlash from employers, and on Wednesday it was clear from the point by point critical review of the draft and the reaction of employers present at the session that the Chamber of Commerce membership is likely to stall the law once again.

During the ‘Be Informed’ session at the Chamber’s visitors’ centre Moses, Managing Director at HSM, acknowledged that many of the troublesome clauses in the law were as a result of a much-needed attempt to crack down on rogue employers. However, he said that because of “naughty employers running around the islands” there were requirements in the law that would present significant difficulties and would see employers needing to take significant legal advice on all employment contracts.

He said the increase in the period of time for legal cases to progress against employers from six months to two years was too long and government should increase its enforcement resources not the timeline it takes to prosecute. Moses also undermined the position of the minister and government officials that an employer could not be subject to a legal challenge for letting go a work permit holder in favour of a Caymanian.

The change in the legislation providing for claims of unfair dismissal during the first few months of employment had removed the concept of a probationary period, Moses said. He also claimed that in some circumstances employees would be able to hold employers to ransom over the retirement age, as the bill stands at present over the need for post-retirement contracts. He pointed to new complex and challenging health and safety rules as he poked holes and identified ambiguities throughout the legislation.

The lawyer listed numerous problems, potential pitfalls and costly penalties, not just for rogue bosses but also for employers who are trying to do the right thing. Nevertheless, he did commend government for “having a stab at” the new legislation.

A review of some clauses and rewrites to remove ambiguity and provide more clarity could, the lawyer said, result in a law that worked if there were more protections for employers. He said that the goal really should be to arrive at a document that neither employers nor employees think goes far enough and that way government would know it had struck the right balance. Moses warned employers not to start implementing or acting on any of the provisions in preparation for its arrival because there had to be changes

Acknowledging the long wrangle over labour legislation for over a decade, Chamber CEO Wil Pineau urged members to make representations about their concerns and not “just resist” the legislation. He noted that the Chamber had come out vigorously against the 2004 draft but this time it wanted to see the law get to a point where the business association “could support it”. He said the Chamber Council would undertake a comprehensive review of the law and would submit that to government.

Meanwhile, government will hold its final public meeting on the legislation in East End this evening. The consultation period, however, continues until the end of next month and both employers and employees are being urged to submit their comments, concerns and ideas to the ministry. Employment Minister Tara Rivers, who is steering the legislation through the process, has said that all submissions will be considered and the current draft will be refined and re-written before it goes before her Cabinet colleagues.

While the ministry hopes to push the legislation through before the year-end in order to facilitate the implementation of a minimum wage in March next year, the minister may find herself pressing through legislation in the face of resistance from employers or forced, like her predecessors, to go back to the drawing board.

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Category: Jobs, Laws, Local News, Politics

Comments (52)

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  1. Anonymous says:

    As long as there is no need to hire or promote more locals on basis other than talent then I suppose businesses can live with it.

  2. anonymous says:

    10: 48? Bona fide….bona in Latin is good and fide is faith.
    OK?????…good faith…..
    Grammar on here is something else too.
    Oh well. Never to late to keep reading and these computers have spell checks. Keep learning sports fans!!!!

    • Anonymous says:

      “Never too late”. With your poor quality English and over-use of question marks and exclamation marks, I would stay from the grammar-led post if I were you.

  3. Anonymous says:

    Increased costs to employers with no benefit to them. More lawsuits by disgruntled ex staff which mean more pay offs because fighting them is not worth. More structural reasons to keep local hires to the minimum.

  4. Anonymous says:

    We need new labour legislation yes. However I am not saying that the bill in its current form is what we need. For far too long the merchant establishment has gotten away with everything and employees have been left hanging. I agree with the fines however I also feel that there should be strict fines attached to ALL aspects of the Bill and not just a few sections. With those 2 cents said, my other serious concern is enforcement- the current Law does not seem to be being fully enforced, although I have seen a serious and concerted effort in the area of safety and health, a new Law will be for naught if we don’t have enforcement officers out there pounding the pavement.

  5. Anonymous says:

    Chasing money brings on slavery. Government is corrupt and so is the (il)legal system.

    • Anonymous says:

      Government themselves, Immigration to name the entity, issues a work permit to someone, this person gets fired, the employer sends a letter in explaining the situation, ex employee gets another permit for the same position in another company, said ex employee gets fired again for the same thing….and here they go again, another work permit!!! How can Immigration keep issuing work permits when there is documentation stating what happened. Yes there are three sides to a story, but, if it is a reputable company don’t you think maybe Immigration should query this directly to the employer

      • Anonymous says:

        That’s interesting usually when a permit is canceled the next permit is refused perhaps you did not do something correctly to insure said employee did not get another work permit or perhaps your just a lying piece of shit that made unbelievable accusations,
        and to say its a reputable company makes me wonder what the truth really is

  6. Anonymous says:

    The employers are ‘pretending’ that it’s a bad deal for them and would hope employees believe that too, therefore C4C/PPM get to pass a Bill without substance and actual enforcement mechanisms.

    Don’t listen to the employers, they’re happy and want us to avoid demanding more!

    MOST of the information was already set out in Mr Roy Bodden’s Employment Law (2004), which they could have improved modernised, instead they pretend to have new laws for our protection.

    1. Why isn’t the civil service subject to these rules?
    Yes we know the PFML governs the cig but that’s the problem, it gives the foreign workers more protection, jobs don;t have to be advertised, so the contracted worker in cig is better off and how many leave? They bring many dependents whom we have to educate for free, but expat workers in private sector have to send their children to private school. So yes contracted workers in CIG are better off than locals and other expat workers and we know where the majority come from.

    2. Where are the modern sections to deal thoroughly with constructive dismissal, indirect discrimination and reverse discrimination?

    3. The maternity and paternity leave sections do not come close to UK, Canada and you would think with a young Minister of Employment & Gender Affairs, she would have seen first hand the benefits of leave and work-baalnce initiatives in employment laws.

    • Anon says:

      This is not true. The proposed Bill is much more akin to the 2004 Employment Law than the current 30 year old piece of law. There are a lot of amendments to better provide for enforcement and protection and the Bill provides for a much better balance between employer and employee relations.

      In relation to maternity, this bill is in line with other Caribbean jurisdictions. It is impossible to compare it with other jurisdictions like the UK because maternity pay is funded by the state there and not the employer ie from tax revenue. with regards to paternity, every labour code has to start somewhere and it is a commendable gender step to recognise that fathers have a role and responsibilities too.

      I agree in relation to discrimination. The discrimination provisions of the labour law have always been a joke and it would be nice to see an opportunity be taken to make them enforceable.

      • Anonymous says:

        The cost of living in the Cayman is much more expensive than any other Caribbean jurisdiction

      • Anonymous says:

        That is what I said, the Bill is simply using the Employment Law for most part and that was passed when R Bodden was Minister.

        Interesting point re maternity leave but aren’t jurisdictions in the Caribbean also taxed? Maybe the issue isn’t in the comparison with the UK but we’re allowed to change our minds and I agree.

        Leave maternity at that rate or lower because native caymanians aren’t having the children anyway so why keep changing laws to benefit foreign workers who could return home to much better benefits in UK, Canada & Australia etc

    • Anonymous says:

      “It gives the foreign workers more protection, jobs don’t have to be advertised”. Utter, total nonsense. Clearly you have never read the relevant law and regulations. And the law you mean is the PSML not the PFML. You undermine any credibility your comment might have when you get things so hopelessly wrong.

  7. Anonymous says:

    Could the Government please explain why it did not include Private Sector expertise before now?

  8. Anonymous says:

    This Bill is a joke because it doesn’t even begin to address the issues of maternity leave etc. 6 weeks paid?!?!? THESE ARE CHILDREN THEY NEED MORE THAN 6 WEEKS WITH THEIR MOTHERS! The entire 3 months should be paid (at a minimum!)

    • Anonymous says:

      If you want to have kids great, go have them. Just stop thinking that someone else should pay you to do so. If you want socialism go to France and enjoy being taxed to death!

      • Anonymous says:

        An avid Fox news watcher. Apparently protecting the interests of children is “socialism”. Must be easy and sad to live with such a simplistic, divisive and insane view of the world.

        • Rupert Mordoc says:

          Children are only deserving of overarching state protection when in the confines of the womb. Everybody knows that. Once out they become “labor” and warrant no protections!

      • Anonymous says:

        Maybe your mother should not have had you. The world would probably have been a better place

      • Anonymous says:

        I guess women have kids for themselves only. Wow !! Women should stop have children .. let’s see what happens.

    • Anonymous says:

      You paying?

    • anon says:

      Are you going to make a suggestion on how this could be paid for without making women in their childbearing years unattractive to employers? Will the employer just have to suck it up and pay for the full 3 months or do you think government (i.e fee and duty payers) should subsidize? Would this apply to ex-pats or just Caymanian women? Do you think it is responsible or in the best interests of children to be born to parents who lack the ability to save 6 weeks salary in order to have a full maternity leave?

  9. Rock Lover says:

    We all need to bear in mind that the employers will grumble about this law if it seem to favour the employees in any way shape or form. it will need tweaking and re- write along the way and that is why Minister Rivers has decided to take it on the road to get collaboration from employees as well as employers. It is not perfect but it is the only real effort in a long time to address the issues in labour relations in the Cayman Islands . Please give your comments/ ideas to Minister Rivers so that we can come away with a law that is amicable . Remember that some employers still has the mindset of maters and slaves. Please do not throw out the baby with the bath water.

    • Anonymous says:

      Sent to Hon Tara Rivers???
      I would share them but every time I offer input I usually get the reply,

      “Well, that is not my responsibility OR that will require other ministries, multi-disciplinary support which I cannot guarantee, OR I will pass you on to the person in the Ministry/Department actually responsible for that”

      And if it calls for a vote in the LA, she has conveniently been ‘absent’ when it mattered to many to hear her opinion, and so the blind followers in WB will believe her IF she says in 2017, she would have voted certain way if not absent;

      but as opposers of OMOV try to claim, if you don’t vote it means you meant no, so IF we follow those with that argument, at least that’s one way of coming up with an answer.

      • Anonymous says:

        You got a reply? Well done – I am still waiting for replies to several communications over the last couple of years. Had such faith and hope when she was elected, have got none now.

    • Anonymous says:

      Minister Rivers. Now that was a failed experiment. Hopefully never again. Please do not let this rampant socialist damage our rock any more.

  10. Anonymous says:

    “Don’t come to our islands to live and establish business(es) for profit, if you are going to hire majority locals! You’re business plan should include at least 60% Cayman/Local employment before you come on-board (with excuses about lack of qualifications, lack of experience, cultural-based entitlement issues, incompetence and/or laziness)”

    Close your law firms if you are not content with the bill. Take you businesses elsewhere. The laws in Cayman should always be for the natives of these lands.

    What you don’t like here, in the Cayman Islands, then GO BACK HOME!

  11. Anonymous says:

    Who needs more protection- employees or big companies???

    • anon says:

      Big companies in Cayman rarely have labour issues – they have professional HR departments etc.The issues are generally with small employers – these are Caymanian owned businesses. so the answer is employers and workers both deserve fair and equitable laws. If the law is unbalanced towards the local worker we will see significant amounts of outsourcing of administration tasks to low cost jurisdictions using technology to facilitate. If the law is unbalanced towards the employer we will see local workers being taken advantage of and having a poor quality of life. We need to strike the balance.

  12. Anonymous says:

    Do you have a direct email address where our comments can be submitted?

    CNS: Yes you can send them to nickywatson@caymannewsservice.com

  13. Anonymous says:

    Bottom line? This Bill if it became law will require companies to hire more deadwood and make it more expensive to get rid of underperformers. It will harm business and the wider economy.

    • Anonymous says:

      Are there any provisions for keeping “temps” for a maximum of 3 months only? This has been a way of keeping out Caymanians from jobs. They are hired as permanent temps basically and never given permanent status while expats are hired right away and their permits renewed over and over. This is not right but of course many of these agency owners are big supporters of politicians.

    • Anonymous says:

      10:48am, You must be a “bonified driftwood”, huh?

    • Anonymous says:

      That is not actually true at all. The proposed law has provisions for getting rid of underperforming, incompetent employees but instead of being an outdated employers charter that it was, it attempts to strike a balance between employees rights and employers. For the main part it is a fair and acceptable piece of legislation, long overdue. Cayman ‘ labour code needs to move on and demonstrate to the world that Cayman is a modern and progressive Caribbean jurisdiction while attempting to protect the high proponderance of small businesses in the islands.

      • Anonymous says:

        Nope, it is just more protectionism and added cost for employers.

      • Anonymous says:

        Why would we aspire to be a Caribbean jurisdiction. Can we not just be a modern jurisdiction and stop associating ourselves with total disasters by way of comparison or otherwise?

        • Anonymous says:

          exactly… and otherwise we are way more “developed” than the Caribbean- of course only when that suits us

          • Anonymous says:

            Our politics are becoming pretty third world, but then, look at where we are importing our new generation of voters from!

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