Employment and Legislation Law - HRMATT

Employment Legislation / Employment Legislation / Labour LawLabour Law

Diana Mahabir-WyattHRMATT’s 9th Biennial ConferenceHilton Trinidad & Conference CenterDate: Monday, May 13, 2013

Copyright © 2013. All rights reserved.Copyright © 2013. All rights reserved.Its content cannot be used or distributed without the authorization of Personal Management Service Limited (PMSL).Its content cannot be used or distributed without the authorization of Personal Management Service Limited (PMSL).

HRMATT’s 9th Biennial Conference – May 13th & 14th, 2013 2

CONTRACT OF SERVICE CONTAINS

JOB TITLEPROBATIONARY PERIODHOURS OF WORKTERMS AND CONDITIONSBENEFITS

CONTRACT FOR SERVICES CONTAINS

SCOPE OF WORKCONDITIONS FOR PERFORMANCEBASIS AND PERIODICITY OF PAYMENT

CONTRACTS OF EMPLOYMENT BOTH BASED ON COMMON LAW

TYPES OF EMPLOYMENT CONTRACTS

OPEN ENDEDCASUALTEMPORARYTERM SPECIFIEDPIECE WORK

PROJECTFIXED TERMRENEWABLELABOUR ONLY

HRMATT’s 9th Biennial Conference – May 13th & 14th, 2013

RECOURSERECOURSE

MINISTRY OF LABOURINDUSTRIAL COURTCIVIL COURT

CIVIL COURTARBITRATION

CHARACTERISTICSCHARACTERISTICS

CONTROL IS EXERCISED BY THE EMPLOYER OF BOTH WHAT IS DONE AND HOW IT IS DONE.REQUIRES ATTENDANCE OF SPECIFIC EMPLOYEE USUALLY FOR REGULAR PERIODS OF TIME.

CONTRACTOR DETERMINES HOW WORK IS CARRIED OUT.SPECIFIC PERSON OR PERSONS NEED NOT BE PRESENT.

CONTRACT OF CONTRACT FOR

CHARACTERISTICSCHARACTERISTICS

PAYMENT IS ON A REGULAR BASIS AND RELATED TO A STANDARD PERIOD DURING WHICH THE WORK IS DONE.

EQUIPMENT, SYSTEMS AND CONTROLS ARE PROVIDED BY THE EMPLOYER AND SET FOR THE EMPLOYEE.

PAYMENT IS FOR SATISFACTORY DELIVERY OF CONTRACTED OUTCOME AND NOT DEPENDENT ON TIME.

CONTRACTOR PROVIDES HIS OWN EQUIPMENT AS WELL AS DIRECTION AND CONTROL.

CONTRACT OF CONTRACT FOR

INDUSTRIAL RELATIONS ACT

A. UNDER THE I.R.A.

1. Upon recognition - to treat and enter into negotiations in good faith - I.R.A. Section 40 (1).

2. Not to victimize workers for trade union activities

3. Unless the employer has specifically agreed otherwise (e.g. through a union agreement) the employer does not have

to pay any worker for time not spent working due to union activities (or, indeed, any other activities) - 42 (5).

MANAGEMENT RESPONSIBILITIES FOR INDUSTRIAL RELATIONS

•Definition - worker -Employer - non worker -Industrial Action

-Strike -Lockout

INDUSTRIAL RELATIONS ACT4. To ensure that no provision in a collective agreement applies

benefits to only members of a particular union -43 (5).

5. If a collective agreement has been registered, an employer cannot plead ignorance of the provisions in it. Even if the employer has genuinely never seen it, having just bought over the company from someone else for example, he is deemed to have seen it.

6. When employees are on a legal strike, an employer cannot dismiss such employees just on the grounds of that strike alone.

INDUSTRIAL RELATIONS ACT7. When employees are on an illegal strike, an employer can

terminate their employment on those grounds alone - (in fact what the Act says is that the employer can treat such action on the part of the worker as evidence that the employee has terminated his/her own employment). The employer cannot, however, take an employee back on after an illegal strike and then subsequently dismiss that employee for having taken illegal strike action.

8. Where any offence punishable under the I.R.A. has been committed by a company, anyone who at that time was a managerial employee of the company is deemed personally guilty of the offence, and can be fined or imprisoned, depending on what the penalty was unless he can prove both that the offence was committed without his 'consent and connivance' and that the he exercised all due diligence in preventing the commission of the act.

TRUCK ORDINANCE

B.1. An employer must pay actual

wages in money. This does not exclude the payment of some fringe benefits (e.g. free company products) in kind.

2. No deductions can be made from a worker's wages without his consent other than deductions due to fines, deductions under the law, or deductions under known work rules for negligence or injury to tools or equipment.

FOREIGN LABOUR CONTRACTS

C.1. A foreign employer wishing to hire Trinidadian

Labourers to take them to another country to work must have the written consent of the President and provide a contract of employment describing work to be done, the country, place and locality where it is to be done, the address of the employer, the amount and periodicity of wages and an assurance that the labourer will be repatriated at the end of the contract period.

TRADE DISPUTE AND PROTECTION OF PROPERTY

D.

1. An employer cannot sue a union for loss of business or loss of income sustained due to a legal strike.

2. An employer cannot sue a union for trying to persuade workers to break their contract of employment or interfering with people's (picketing) rights to dispose of their labour or their money as they wish.

RETRENCHMENT AND SEVERANCE BENEFITS ACT

E.

1. Where an employer intends to retrench five or more workers he must give notice in writing to each such worker, to the recognized union (if any) and to the Minister of Labour.

2. The minimum period of notice required is 45 days before the actual retrenchment takes place, although if an employer can prove to the Minister that genuinely unforeseen circumstances have arisen which have made that length of notice impossible, the Minister may accept a shorter notice period.

RETRENCHMENT AND SEVERANCE BENEFITS ACT

3. If less than five workers are to be retrenched at one time, providing others are also retrenched within the 45 day notice period, they will be counted together with the first ones.

4. If the recognized trade union objects to the retrenchment and asks the employer for further specific and relevant information about the reasons for the retrenchment, the employer must supply that information or, if the employer feels that disclosing the information requested would be detrimental to the company, he may refuse to do so. The union may take that refusal to the Ministry - or the Minister may intervene on his own.

5. If there is no union, a worker given notice may ask the Minister to intervene on his/her behalf. Where this happens, the employer must then respond to the Minister's intervention.

RETRENCHMENT AND SEVERANCE BENEFITS ACT

6. An employer must not refuse to give a worker under such notice time off in order to look for another job, unless this would interfere with "the operational needs of the business".

7. The employer must pay severance benefits within thirty days of the expiration of notice.

RETRENCHMENT AND SEVERANCE BENEFITS ACT

8. The minimum severance benefits payable by the employer are as follows:

(a) Where he has served the employer without a break in service for between more than one but less than five years, he is entitled for each such completed year of service to two weeks’ pay at his basic rate if he is an hourly, daily or weekly rated worker, or one half month’s pay at his basic rate if he is a monthly rated worker;

RETRENCHMENT AND SEVERANCE BENEFITS ACT

(b) Where he has served the employer without a break in service for five years or more, he is in addition to his entitlement under paragraph (a), entitled for the fifth year and for each succeeding completed year of service to three weeks pay at his basic rate if he is an hourly, daily or weekly rated worker, or three quarters month’s pay at his basic rate if he is a monthly rated worker.

(c) For each period of service amounting to less than a completed year of service and in respect of workers who qualify under section 3(1)(d), payment shall be calculated on a pro-rata basis.

WORKMEN'S WAGES (PROTECTION)

WORKMEN'S WAGES (PROTECTION)

G.1. An employer must not pay out wages to a

manual labourer in a rum shop or other place where intoxicating liquor is sold unless the labourer is employed in that establishment.

MINIMUM WAGES ACT NATIONAL MINIMUM WAGES & CERTAIN BASIC

CONDITIONS

IMPACTS OF THE ORDERS

CHANGES TO THE ACT ITSELF- DEFINITIONS- RIGHTS TO REDRESS- TRANSFER FROM CIVIL TO INDUSTRIAL COURT

$12.50 minimum wage now in effectStory Created: Jan 2, 2011 at 10:46 PM ECT EXPRESS NEWSPAPER

The new minimum wage in Trinidad and Tobago took effect on Saturday.

The Minimum Wages Order 2010 increased the wage from $9 per hour to $12.50 per hour.

The announcement of the increase was first made by Minister of Labour Errol McLeod during his national budget presentation last year. The order, which revoked its 2005 predecessor, highlighted some of the categoriesof workers that will benefit from the new legislation.

"The national minimum wage and provisions relating to overtime in this Order shallbe applicable to petrol filling station employees, catering industry employees, shop assistants, security industry employees and household assistants," the order read.

$12.50 minimum wage now in effectHowever, other terms and conditions that have been established in the respective pieces of legislation for these categories of workers will remain in effect.

There are also some categories of workers that will not benefit from the wage hike.

According to the order, the increase does not apply to:

"a. trainees in training schools approved by appropriate Government agencies such at the (i) Youth Training and Employment Partnership Programme (YTEPP); or (ii) National Energy Skills Centre;

"b. schemes developed from time to time by other Government ministries, departments or agencies;

"c. other schemes submitted to and approved by the Minister to whom responsibility for labour is assigned;

"d. registered apprentices;

"e. students on vacation jobs;

$12.50 minimum wage now in effect"And f. persons who volunteer services to registered charitable organisations and social services agenciesregistered with the Ministries responsible for social services, youth, sports, community development or genderaffairs." The legislation was careful to mention that its proclamationwas not meant to reduce the wages of employees whowere already earning in excess of $12.50 an hour.

"This order shall not be construed as authorising a. the reduction of wages paid to those employees who already receive wages in excess of the national minimum wage; and b. changes in theexisting terms and conditions of any worker to effect a lowering of such terms and conditions.“

Abby Brathwaite

NATIONAL INSURANCE

AMENDMENTS

IMPACTS

PENSIONS REFORM

COST IMPLICATIONS

NATIONAL INSURANCE AMENDMENTS

Effective March 4, 2013

Maternity Grant and special maternity grantincreased from $2,500 to 3,750

Retirement from $2,000 to 3,000

Funeral Grant from $5,000 to 7,500.

MATERNITY PROTECTION ACT

MATERNITY PROTECTION ACT

DEFINITIONS

EXTENDS AUTHORITY TO NURSES AND MIDWIVES

EMPLOYEE CAN GO STRAIGHT TO MINISTRY OF LABOUR

PRENATAL CARE – OFF WITH PAY

FULL PAY FOR FOURTEEN WEEKS

MATERNITY PROTECTION ACT

EXTENSION OF UP TO FOURTEEN WEEKS FOR MEDICAL REASONS

EXTENSION OF UP TO FOUR WEEKS NON-MEDICAL REASONS

CANNOT TERMINATE ON GROUND OR RELATING TO PREGNANCY

EQUAL OPPORTUNITY ACT

EQUAL OPPORTUNITY ACT

EQUAL OPPORTUNITY ACT

GENERALLY PROGRESSIVE

IMPACTS FOR EMPLOYERS

- JOB OPPORTUNITIES- ADVERTISING- GENDER ISSUES- SECTION 7

SECTION 7 1. A person shall not otherwise than in

private, do any act which-(a) is reasonably likely, in all the circumstances, to offend, insult, humiliate or intimidate another person or group of persons;

(b) is done because of the gender, race, ethnicity, origin or religion of the other person or of some or all of the persons in the group; and

(c ) which is done with the intention of inciting gender, racial or religious hatred.

SECTION 7 2. For the purposes of subsection (1), an act is

taken not to be done in private if it-(a) cause words, sounds, images or writing to be communicated to the public;

(b) is done in public place;

(c ) is done in the sight and hearing of persons who are in a public place.

3. This section does not apply to acts committed in a place of public worship.

OCCUPATIONAL SAFETY & HEALTH BILL

OCCUPATIONAL SAFETY & HEALTH BILL

TO REPLACE FACTORIES ACT

EXTENSIVE COMMENTS SUBMITTED

IMPACTS ARE FAR REACHING

CURRENTLY ON PARLIAMENTARY AGENDA

40

Phone: 625-9212/6239685E-mail: [email protected] (www.pmsl.org)

Copyright © 2013. All rights reserved.Copyright © 2013. All rights reserved.Its content cannot be used or distributed without the authorization of Personal Management Service Limited (PMSL).Its content cannot be used or distributed without the authorization of Personal Management Service Limited (PMSL).