|
AN ACT TO ESTABLISH MINIMUM STANDARD HOURS OF WORKING
AND VACATION WITH PAY FOR EMPLOYEES; TO PROVIDE FOR
THE GRANT OF MATERNITY AND FAMILY LEAVE; TO PROVIDE
FOR REDUNDANCY PAYMENTS TO EMPLOYEES; TO MAKE
PROVISIONS RELATING TO NOTICES TO TERMINATE CONTRACTS
OF EMPLOYMENT; TO MAKE PROVISIONS RELATING TO
SUMMARY DISMISSAL AND UNFAIR DISMISSAL; TO MAKE
PROVISIONS IN RESPECT OF THE EMPLOYMENT OF CHILDREN
AND YOUNG PERSONS; TO MAKE PROVISIONS IN RESPECT OF
THE WAGES OF EMPLOYEES; TO MAKE PROVISIONS RELATING
TO FINGERPRINTING AND LIE DETECTOR TESTS; AND FOR
CONNECTED PURPOSES.
Enacted by the Parliament of The Bahamas
PART I
PRELIMINARY
Short 1. (1) This Act may be cited as the Employment
title Act, 2001.
and - (2) This Act shall come into operation on such day as the
commenc- Minister may, by notice published in the gazette, appoint.
ement
Interpre- 2. (1) In this Act -
-tation.
"basic pay" means the rate of pay of an employee exclusive of all bonuses,
overtime payments and allowances;
"business" includes a trade or profession and any activity carried on by a body of
persons, whether corporate or unincorporated;
"contract of employment" means a contract of service or apprenticeship, whether
express or implied, and (if it is express) whether it is oral or in writing;
"day" means a period of twenty-four hours;
"employee" means any person who has entered into or works
under (or, in the case of a contract which has been terminated, worked under) a contract of employment, whether the contract is for manual labour, clerical
work or otherwise and whether it is a contract of service or apprenticeship, and any reference to employment shall be construed accordingly;
"employer", in relation to an employee, means any person or undertaking, corporation, company, public authority or body of persons including -
( a ) the owner of a business in which the employee is employed;
( b ) any managing agent of an employer
( c ) in relation to a person engaged in plying for hire with any vehicle or vessel
the use of which is obtained from the owner thereof under a contract of bailment
(other than a hire-purchase agreement), the allowances; "business" includes a trade or profession and any activity carried on by a body of persons, whether corporate or unincorporated; "contract of employment" means a contract of service or apprenticeship, whether express or implied, and (if it is express) whether it is oral or in writing;
"day" means a period of twenty-four hours;
"employee" means any person who has entered into or works under (or, in the case of a contract which has been terminated, worked under) a contract of employment,
whether the contract is for manual labour, clerical work or otherwise and whether it is a contract of service or apprenticeship, and any reference to employment shall be construed accordingly;
"employer", in relation to an employee, means any person or undertaking, corporation, company, public authority or body of persons including -
( a ) the owner of a business in which the employee is employed;
( b ) any managing agent of an employer
( c ) in relation to a person engaged in plying for hire with any vehicle or vessel
the use of which is obtained from the owner thereof under a contract of bailment
(other than a hire-purchase agreement), thesaid owner;
( d ) in relation to a person employed for the purposes of any game or recreation and
engaged or paid through a club, the manager, or, where the club is managed by
a committee, the members of the managing committee, of the club, who or which employs any person to work under a contract of employment or uses the services
of a commission agent or contract worker; and includes the heirs, successors and
assigns of an employer"
"Minister" means the Minister responsible for Labour
"redundancy" has the meaning assigned thereto by section 27;
"regulations" means regulations made under this Act and in the manner provided by this Act;
"remuneration" includes wages, benefits in kind and allowances;
"standard hours of work" means the hours of work described in subsection (1) of section 8;
"the Tribunal" means the Industrial Tribunal established under the Industrial Relations Act:
"wages" includes every form of remuneration for work performed, but does not include tips, bonuses, or other gratuities;
"week" means a period of seven days;"work" means work in the course of employment;
"year" means a period of fifty-two weeks.
( 2 ) For the purposes of this Act, any two or more employers are to be treated as associated if they are
"affiliated" as defined in section 2 of the Companies Act.
Applica- 3. (1) Subject to this Act, the provisions of this Act shall apply in relation to any employee
tionof employed in any form of employment in The Bahamas including any such employment
Act. or under the Crown in right of the Government of The Bahamas or by a local government authority or by any body corporate established by law for public purposes:
Provided that this Act shall not apply to service or employment, or to persons serving or employed, in a disciplined force and for this purpose "disciplined force" has the meaning given to that expression in paragraph (1) of Article 31 of the Constitution.
(2) The Minister may by Order after consultation with a confederation, being, in the opinion of the Minister, a confederation representative of a majority of employers and associations of employers generally and after consultation with an association of registered trade unions being an employees provide that any provision of this Act as are mentioned in the Order shall or shall not apply in relation to persons or employments of such classes as may be specified in the Order subject to such exceptions or modifications as may be so specified.
Saving of 4. The provisions of this Act shall have effect notwithstanding any other law and
more notwithstanding any contract of employment, arrangement or custom (being a contract
favourable of employment, arrangement or custom made or in being whether before or after
terms of The commencement of this Act) so, however, hat nothing in this Act shall be construed
employ- As limiting or restricting -
ment. t
( a ) any greater rights or better benefits of any employee under law, contract of
employment, arrangement or custom;
( b ) the right of any employee or trade union to negotiate on behalf of any such
employee, any greater rights or better benefits; or
( c ) an employer from conferring upon any employee right or benefits, that are
more favourable to an employee than the rights or benefits conferred by this Act.
Conditions 5. (1) A person employed after the commencement of this Act shall be informed by his
of employer as soon as practicable of the followings particulars -
employ - ( a ) the name of the employer or group of employers and where practicable of the
mentment. undertaking and of the place of employment;
(b) the name of the employee, the place of engagement and where practicable the place of origin of the employee, and any other particulars necessary for his
identification;
( c ) the nature of the employment;
( d ) where a person is engaged for a fixed period or in appropriate circumstances,
the duration of the employment and the method of calculating the duration;
( e ) the rate of wages and other benefits and method of calculation thereof, the manner
and period of payment of wages and other benefits, the advances of wages and
other benefits, if any, and the manner of repayment of any such advances;
( f ) where any work is to be performed not by the piece but by time, the number of
hours of daily work, and the hours of the day at which such work is to commence
and to terminate.
Non-dis- 6. No employer or person acting on behalf of an employer shall discriminate against an
crimination an employee or applicant for employment on the basis or race, creed, sex, marital status
and equal political opinion, age or HIV/Aids by -
pay for ( a ) refusing to offer employment to an application for employment or not affording
equal the employee access to opportunities for promotion, training or other benefits, or
work. or by dismissing or subjecting the employee to other detriment solely
because of his or her race, creed, sex, marital status, political opinion, age or
HIV/Aids;
( b ) paying him at a late of pay less than the rate of pay or another employee, for
work of equal value performed in the same establishment, the performance of which requires substantially the same skill, effort and responsibility and which is
performed under similar working conditions except where such payment is made pursuant to seniority, merit, earnings by quantity or quality of production or a differential based on any factor other than race, creed, sex, marital status, political opinion, age or HIV/Aids;
( c) pre-screening for HIV status: Provided that this section does not affect any
other law or contract term which stipulates a retirement age.
Disabled 7. Section 6 shall apply mutatis mutandis to Disabled employees unless the employer
employees. can show that the job requirements relied on as grounds for hiring the disabled
person at a lesser rate of pay are reasonable or the disabled person cannot be accommodated without undue hardship.
PART II
STANDARD HOURS OF WORK
Standard 8. (1) Except as otherwise provided by or under this Act, no employer shall cause or permit
hours. any employee to work in excess of eight hours in any day or forty hours in any week
(in this Part referred to as the "standard hours of work") without the payment of overtime pay in respect of any such excess in accordance with section 10:
Provided that the standard hours of work shall be:-
(a) forty-four hours in any week for the period February 1, 2002 to February 1, 2003"
( b) forty hours in any week after February 1, 2003.
( 2 ) Notwithstanding subsection (1), where by reason of the nature of any employment the hours of any employee for the purposes of such employment are required to be irregular, the standard hours of work in a day or week of any such employee may
be calculated as an average over a period not exceeding four weeks.
( 3 ) Notwithstanding subsection ( 1 ), in any industrial, construction, manufacturing or transshipment enterprise or in any essential service within the meaning of
section 75 (2) or the Industrial Relations Act or law enforcement service the hours of employment of an employee for the purposes of such employment may exceed the standard hours of work in a day up to a maximum of twelve hours and the Minister may be Order include other enterprises or services within this subsection as he deems fit.
( 4 ) This section shall not apply to a person who holds a supervisory or managerial position.
Day off 9. In every seven-day period, an employer shall allow each employee at least forty-eight hours of rest with not less than twenty-four of such hours being consecutive and a period of twenty-four hours rest is in this Act referred to as a day off.
Overtime 10. Where an employee is required or permitted to work in excess of the standard hours of
pay. work, he shall be paid in respect of such work at a rate of wages not less than -
( a ) in the case of overtime work performed on any public holiday or day off,
twice his regular rate of wages
( b ) in any other case, one and one-half times his regular rate of wages:
Provided that an employee in a tipped category in the tourism and hospitality
industry shall be paid at his regular rate of pay other than in respect of his second
day off in any week, and any wages paid or to be paid as required by this section are in this Act referred to as overtime pay.
PART III
SICK LEAVE
Sick leave. 11. ( 1 ) An employee who has been employed for at least six months is entitled to one week sick leave with pay in any year where he is prevented by illness from performing his duties at his place of work:
Provided that no employee shall be entitled to receive payment in respect of periods of sick leave which is only one day long nor to accumulate such leave from year to year.
( 2 ) Every employee shall be required to produce tohis employer a medical certificate e except in respect of the first days sick leave for any period of sick leave:
Provided that notwithstanding the proviso in subsection ( 1 ) an employee shall be entitled to receive payment in respect of the first days sick leave where he
presents a medical certificate to his employer.
( 3 ) An employer may, on processing a claim for sick leave by an employee, require such employee to be examined by an independent physician and may refuse such leave if the physician is of the opinion that the employee is fit for work.
PART IV
VACATION LEAVE
Annual 12. ( 1 ) Every employer shall give a vacation of at least two weeks to each employee upon
vacation. the completion of each twelve months of employment.
( 2 ) The vacation given under subsection ( 1 ) shall be extended by one day for every public holiday that occurs during the vacation.
13. ( 1 ) An employer shall pay vacation to an employee entitled to a vacation under section 12.
( 2) The vacation pay -
( a ) In respect of an employee who has been employed for six months or
more but under one year, shall be one week basic pay earned by
the employee during the year of employment in respect of which he
is entitled to the vacation;( b ) in respect of an employee who has been
employed for one year or more but under seven years, shall be two weeks basic
pay earned by the employee during the year of employment in respect of which he is entitled to the vacation;
( c ) in respect of an employee who has been employed for seven years or
more shall be three weeks basic pay earned by the employee during the year of employment in respect of which he is entitled to the vacation.
Commence- 14. The employer shall at least one day before the beginning of the vacation or such earlier
ment of time as may be prescribed, vacation pay to the employee the vacation pay to which he
with pay. is entitled in respect of that vacation.
Termination 15. ( 1 ) Where the employment of any employee ends before the completion of a year of
of employ- employment, the employer shall forthwith pay to the employee -
ment during
year (a ) vacation pay then owing to such employee under this Part in respect of any completed year of such employment; and
( b ) subject to subsection ( 2 ), on a pro rata basis of the basic pay earned by
the employee during the incompleted year.
( 2) Notwithstanding paragraph (b) of subsection ( 1 ), an employer is not required to pay to an employee any amount under that paragraph unless the employee has been
continuously employed by him for a period of ninety days or more.
PART V
MATERNITY AND FAMILY LEAVE
Definitions 16. In this Part
for Part V. "confinement" means labour resulting in the issue of a living child or labour after twenty- four weeks of pregnancy resulting in the issue of a child whether alive or dead;
"family leave" means a leave of absence under section 20.
"female employee" means any female employed for remuneration under a contract of employment;
"maternity leave" means leave granted to a female employee arising from or in contemplation of her confinement and includes additional leave granted under section 19;
"midwife" means a person who is registered as a midwife under Ch. 209. the Nurses and Midwives Act;
"parent" includes a person with whom a child is placed for adoption or a person who is in a relationship of some permanence with a parent of a child and who intends to
treat the child as his or her own.
Grant of 17. ( 1 ) Every female employee is, in addition to her annual holiday arising under
maternity this Act or under any other law or agreement pertaining to the conditions of her
leave. employment, entitled to maternity leave upon delivering to her employer
( a ) a certificate issued by a medical practitioner setting forth the expected date of her confinement; or
( b ) a certificate issued by a medical practitioner or a midwife setting forth the actual
date of her confinement;
and without prejudice to section 4 in addition to the grant of maternity
leave the payment to her by the employer during such leave once in every three years of a minimum sum equivalent to thirty-three and one-third per cent of that portion of her wages which does not exceed the National Insurance ceiling on insurable wage:
Provided that where the employee is not entitled to any benefit under the National
Ch. 320. Insurance Act during such leave by reason of the neglect of or conduct on the part of her employer the minimum sum payable to her under that Act and the foregoing provisions of this subsection but for such neglect or conduct.
( 2 ) Where an employee by reason of geographical or other circumstances beyond her control is unable to produce such certificates as are mentioned in subsection ( 1 ) an employer shall accept such other evidence as is produced by her in reasonable proof
of her entitlement to maternity leave.
( 3 ) A female employee
( a ) must in order to qualify for a grant of maternity leave, be employed for at least twelve months by the employer from whom she request such leave; and
( b ) is not entitled to maternity pay by the same employer more than once in every three years.
Duration of 18. ( 1 ) Except where an employee otherwise desires, maternity leave shall be for a period of
maternity not less than twelve weeks and shall be so arranged that the employee is allowed
leave.
( a ) such period, not less than one week, as she desires before the expected date of confinement; and
( b) a period of not less than eight weeks from the date of confinement.
( 2 ) Where
( a ) a confinement takes place without an employee having been granted maternity leave; or
( b ) the period of maternity leave before her confinement amounts to less than four weeks, the period of leave after confinement shall, if the employee so desires,
be extended so that the total period of leave does not amount to less than twelve weeks.
( 3 ) Where an employee has been granted maternity leave and the date of confinement is a later date than the date stated in the certificate issued pursuant to subsection ( 1 ) of section 17 as being the date on which confinement was expected, her maternity
leave shall be extended to include the period that elapsed between those date.
( 4 ) Where an employee has been granted maternity leave and the employee dies during such leave, the guardian of the child shall be entitled to any unpaid maternity benefits due to the mother from her employer and the National Insurance Board.
Additional 19. An employee who, after confinement, suffers leave. any illness arising out of such confinement shall be granted, an additional to the maternity leave to which she is entitled under section 17, such additional unpaid leave not exceeding six weeks as a medical practitioner recommends.
Family 20. ( 1 ) An employee who has been employed for at least months is entitled to family leave
leave. without pay for a period not exceeding one week per annum following
( a ) the birth of a child; or
( b ) the death or illness of a child, spouse or parent.
( 2 ) Every employee shall be required to provide to the satisfaction of his employer evidence of birth, death or illness, as the case may be.
Protection 21. ( 1 ) Subject to subsection (2), no employer shall
of employ- ( a ) dismiss or give notice of dismissal to a female employee at any time between
ment. the date of her delivery to him of a medical certificate under section 17 and the date of the expiration of her maternity leave or additional leave granted under section 19;
( b ) give notice of dismissal to an employee so that it would expire during her maternity leave or additional leave granted under section 19 or dismiss her during such leave;
( c ) dismiss an employee or require an employee to resign on the ground that she is pregnant; or
( d ) require an employee to resign during any of the times referred to in paragraph (a) or (b) and which paragraphs then apply to that employee.
( 2 ) Subsection (1) does not apply where ( a ) there has been serious default, or gross
negligence amounting to abandonment of duty, on he part of the female employee; or
( b ) there has been an express contract of service for a fixed term between an employer and the female employee which has expired.
( 3 ) Subject to subsection (2), it shall be presumed presumed for the purposes of any proceedings unless the contrary is shown that the dismissal of a female employee, who was at the time of her dismissal not less than six months in her pregnancy, was in breach of subsection (1) ( c ) or ( d ).
Protection 22. Where a female employee has been granted maternity leave she is, on her resumption
of seniority. of work after such leave, entitled to -
(a ) her seniority rights;
( b ) reinstatement in her former position or equivalent position, and she shall not by reason only of the fact that she went on maternity leave, be paid a smaller remuneration than she received before she went on maternity leave.
Contra- 23. Any employer who contravenes or fails to comply with any of the provisions of section
vention 21 or 22 shall be liable to a fine of five thousand dollars.
of section 24. An employer may in addition to the fine imposed on him be liable to pay to the female
21 and 22. employee any payment due to such employee under this Act.Application. 25. Sections
Power to 21 to 24 shall apply mutatis mutandis to family leave.
order
payment.
PART VI
REDUNDANCY PAYMENTS
Right to 26. ( 1 ) Where an employee who has been continuously employed for one year or
redundancy more is dismissed by his employer because of redundancy, his employer
payment. is, subject to the provisions of this Part, liable to pay to him a sum (in this Act
referred to as a "redundancy payment" or "redundancy pay") calculated in accordance with subsection (2).
( 2 ) Subject to subsection (3), the amount of the redundancy payment shall be calculated by reference to the date of the employees redundancy by starting on that date
and reckoning backwards the number of complete years of employment and allowing
( a ) where the employee has been employed for twelve months or more
(i) two weeks notice or two weeks basic pay in lieu of notice, and
(ii) two weeks basic pay (or a part thereof on a pro rata basis) for each year up
to twenty-four weeks;
( b ) where the employee holds a supervisory or managerial position
(i) one months notice or one months basic pay in lieu of notice, and
(ii)one months basic pay (or a part thereof on a pro rata basis) for each year up to
forty-eight weeks.
( 3 ) Notwithstanding subsection (1), the employer shall have the right to appropriate any monies owing to him by the employee from any monies payable under subsection (1).
( 4 ) Where an employer provides a gratuity or non-contributory pension for an employee, the employee is not which he prefers.
Meaning of 27. For the purposes of this Part, an employee shall be deemed to be dismissed because
Redundancy. of redundancy if his dismissal is wholly or mainly attributable to
( a ) the fact that his employer has ceased, or intends to cease, to carry on the business for the purposes of which the employee was employed by him, or has ceased, or intends to cease, to carry on that business in the place where the employee was
so employed; or
( b ) the fact that the requirements of that business for employees to carry out work
of a particular kind, or for employees to carry out work of a particular kind in
the place where he was so employed, have ceased or diminished or are expected to cease or diminish:
Provided that an employee shall not be deemed to be dismissed because of redundancy where such employee is required to carry out work for a fixed term of less than two years in respect of a specific construction project and such term has come to an end.
Recovery of 28. (1) Payment of redundancy pay shall be made on or before the date of the employees
redundancy redundancy.
payments. (2) A redundancy payment may be recovered as a debt due to the employee in proceedings before the Tribunal.
(3 ) A redundancy payment shall be a preferred Debt in all cases involving bankruptcy or liquidation.
PART VII
TERMINATION OF EMPLOYMENT WITH NOTICE
Period 29. (1) For the purposes of this Act, the minimum period of notice required to be given by
of notice. an employer to terminate the contract of employment of an employee shall be
( a ) where the employee has been employed for six months or more but less than
twelve months;
( b ) where the employee has been employedfor twelve months or more
(i) two weeks notice or two weeks basic pay in lieu of notice, and
(ii) two weeks basic pay (or a part thereof on a pro rata basis) for each year up to twenty-four weeks;
( c ) where the employee holds a supervisory or managerial position
(i) one months notice or one months basic pay in lieu of notice, and
(ii) one months basic pay or a part thereof on a pro rata basic) for each year up to forty- weeks.
(2 ) An employee shall not terminate his employment until after the expiry of
( a ) two weeks notice to the employer if the period of employment is one year or more but less than two years; or
( b ) four weeks notice to the employer if the period of employment is two years or more, unless the employer has been guilty of a breach of the terms and
conditions of employment.
( 3 ) Notwithstanding subsection (1), the employer shall have the right to appropriate any monies owing to him bythe employee from any monies payable under subsection (1).
Provisions 30. ( 1 ) Any notice which under this Part is required or authorized to be given by an
as to employer to an employee may be given orally or in writing by being delivered
notices. to the employee, or left for him at his usual or last-known place of residence, or sent
by prepaid registered post addressed to him at that place.
(2) Any notice which under this Part is required Or authorized to be given by an employee to an employer may be given either by the employee himself or by a person authorized
by him to act on his behalf, and, whether given by or on behalf of the employee
( a ) may be given orally or in writing by being delivered to the employer, or sent
by prepaid registered post addressed to him at the place where the employee is or
was employed by him; or
( b ) if arrangements in that behalf have been made by the employer, may be given by
being delivered to a person designated by the employer in pursuance of the
arrangements, or left for such a person at a place so designated, or sent by
prepaid registered post to such a person at an address so designated.
PART VIII
SUMMARY DISMISSAL
Summary 31. An employer may summarily dismiss an employee without pay or notice when the
dismissal employee has committed a fundamental breach of his contract of employment or has acted in a manner repugnant to the fundamental interests of the employer:
Provided that such employee shall be entitled to receive previously earned pay.
Grounds for 32. Subject to provisions in the relevant contract of employment, misconduct which
summary may constitute a fundamental breach of a contract of employment or may be repugnant
dismissal. to the fundamental interests of the employer shall include (but shall not be limited to) the following
( a ) theft;
( b ) fraudulent offences;
( c ) dishonesty;
( d ) gross insubordination or insolence;
( e ) gross indecency;
( f ) breach of confidentiality, provided that this ground shall not include a report
made to a law enforcement agency or to a government regulatory department or agency;
( g ) gross negligence;
( h ) incompetence;
( i ) gross misconduct.
Proof of 33. An employer shall prove for the purposes of or may be repugnant any proceedings
misconduct. before the Tribunal that he honestly and reasonably believed on a balance of probability that the employee had committed the misconduct in question at the time of the dismissal and that he had conducted a reasonable investigation of such misconduct except where
such an investigation was otherwise unwarranted.
PART IX
UNFAIR DISMISSAL
Right of 34. Every employee shall have the right not to be
employee. unfairly dismissed, as provided in sections 35 to 40, by his employer.
Fairness
of dis- 35. Subject to sections 36 to 40, for the purposes dismissal of the employee was fair or unfair
missal. shall be determined in accordance with the substantial merits of the case.
Dis- 36. ( 1 ) For the purposes of this Part, the dismissal of an employee by an employer shall
missal be regarded as having been unfair if the reason for it (or, if more than one, the
relating principle reason) was that the employee:-
to trade ( a ) was, or proposed to become, a member of
-union ( b ) had taken, or proposed to take, part at any appropriate time in the activities of
member- an independent trade union; or
ship. ( c ) was not a member of any trade union, or of had refused or proposed to refuse to
become or remain a member.
( 2 ) Any reason by virtue of which a dismissal is to be regarded as unfair in consequence of subsection ( 1 ) is in this part referred to as an "inadmissible reason".
( 3 ) In subsection (1) "appropriate time" in relation to an employee taking part in the activities of a trade union, means time which either
( a ) is outside his working hours; or
( b ) is a time within his working hours at which, in accordance with prior
arrangements agreed with or consent given by his employer, it is permissible for
him to take part in those activities; and in this subsection "working hours", in relation to an employee, means any time when, in accordance with his contract of employment, he is required to be at work.
( 4 ) In this section, unless the context otherwise requires, references to a trade union include references to a branch of section of a trade union.
Dismissal 37. Where the reason or principal reason for the dismissal of an employee was redundancy
on ground but it is shown that the circumstances constituting the redundancy applied equally to one
of redun- Or more other employees in the same undertaking who held positions similar to that held
dancy. by him and who have not been dismissed by the employer and either
( a ) that the reason (or, if more than one, the principal reason) for which he was
selected for dismissal was an inadmissible reason; or
( b ) that he was selected for dismissal in contravention of a customary arrangement or agreed procedure relating to redundancy and there were no special reasons justifying a departure from that arrangement or procedure in his case, then for the purpose of this Part the dismissal shall be regarded as unfair.
Dismissal 38. An employee shall be treated for the purposes of this Part as unfairly dismissed
ground of if the reason or principal reason for her dismissal is that she is pregnant or
pregnancy. is for any other reason connected with pregnancy.
Dismissal of 39. Where an employer:-
replacement ( a ) on engaging an employee informs the employee in writing that his employment
employee. will be terminated on the return to work of another employee who is, or will be, absent wholly or partly for any reason; and
( b ) dismisses the first-mentioned employee on the return to work of that other employee,
then, for the purposes of this Part, the dismissal of the first-mentioned employee
shall not be regarded as having been unfair.
Dismisal 40. ( 1 ) The provisions of this section shall have effect in relation to an employee
In connec- (in this section referred to as "the complainant") who claims that he has been unfairly
tion with dismissed by his employer where at the date of dismissal-
a lock ( a ) the employer was conducting or instituting a lockout; or
-out, ( b ) the complainant was taking part in a lawful industrial action. or agreed procedure relating
strike (2) In any case mentioned in subsection (1), the Tribunal shall not determine
or other whether the dismissal was fair or unfair unless it is shown
industrial ( a ) that a relevant employee of the same employer has not been dismissed; or
action.; or ( b ) that any such relevant employee has, before the expiry of the period of
three months beginning with the date of dismissal of the complainant, been
offered re-engagement and that the complainant has not been offered
re-engagement.
(3) Where it is shown that the condition referred to in subsection (20) (b) is fulfilled, the provisions of sections 35 to 39 shall have effect as if in those sections for any reference to the reason or principal reason for which the complainant was dismissed there were substituted a reference to the reason or principal reason for which he has not been offered re-engagement.
(4) In this section
"date of dismissal" means
( a ) where the complainants contract or employment was terminated by notice, the
date on which the notice was given by the employer; and
( b ) in any other case, the effective date of termination;
"relevant employee" means
( a) in relation to a lock-out, an employee who was directly interested in the dispute
in contemplation or furtherance of which the lock-out occurred; and
( b ) in relation to a strike or other industrial action, an employee at the establishment
of the employer at or from which the complainant works who was taking part in it at the date of dismissal of the complainant; and, in this section, any reference to an offer of re-engagement is a reference to an offer (made either by the original employer or by a successor of that employer or an associated employer) to re- engage an employee, either in the job which he held immediately before the date of dismissal or in a different job which would be reasonably suitable in his case.
Complaint. 41. Where, under the Industrial Relations Act, a trade dispute relating to unfair dismissal is referred to the Tribunal such dispute shall be dealt with by the Tribunal as a complaint in accordance with the provisions of this Part.
Remedies 42. (1) Where on a complaint made under section 41 the Tribunal finds that the grounds
for unfair of the complaint are proved it shall explain to the complainant what orders
dismissal for re-instratement or re-engagement may be made under section 43 and in
what circumstances they may be made, and shall ask him whether he wishes the
Tribunal to make such an order, and if he does express such a wish the Tribunal may make an order under section 43.
(4) If on a complaint made under section 41 the tribunal finds that the grounds of the complaint are proved and no order is made under section 43, the Tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with
sections 46 to 48, to be paid by the employer to the employee.
Order for 43. (1) An order made under this section may be an order for reinstatement
reinstate- (in accordance with subsections (2) and (3) or an order for re-engagement
ment (in accordance with subsection (4)), as the Tribunal may decide.
re-engage-
ment. (2) An order for reinstatement is an order that the employer shall treat the
complainant in all respects as if he had not been the employer shall treat the
dismissed, and on making such an order the Tribunal shall the employer shall treat the
specify
( a ) any amount payable by the employer in respect of any benefit which the
complainant might reasonably be expected to have had but for the dismissal;
( b ) any right and privileges, including to have had but for the dismissal;
( c ) the date by which the order must be complied with.
( 3 ) Without prejudice to the generality of subsection (2), if the complainant would have benefited from an improvement in his terms and conditions of employment had
he not been dismissed, an order for reinstatement shall require him to be treated
as if he had benefited from that improvement from the date on which he would have
done so but for being dismissed.
( 4 ) An order for re-engagement is an order that the complainant be engaged by the employer, or by a successor of the employer or by an associated employer, in employment comparable to that from which he was dismissed or other suitable employment, and on making such an order the Tribunal shall specify the terms on which re-engagement is to take place.
Enforce 44. (1) If an order under section 43 is made and the complaint is reinstated or, as the
ment of case may be, re-engaged but the terms of the order are not fully complied
order with, then, subject to section 48, the Tribunal shall make an award of compensation,
made to be paid by the employer to the employee, of such amount as the tribunal things
under fit having regard to the loss sustained by the complainant in consequence of the
section 43 on failure to comply fully with the terms of the order.
and com- (2) Subject to subsection (1), if an order under section 43 is made but the complainant
pensati is not reinstated or, as the case may be, re-engaged in accordance with the order,
award. ( a ) the Tribunal shall make an award of compensation for unfair dismissal, calculated in accordance with sections 45 to 47 to be paid by the employer to the employee; and
( b ) unless the employer satisfies the Tribunal that it was not practicable to comply with t he order, the Tribunal shall make an additional award of compensation to be paid by the employer to the employee of an amount of not more than twenty- six weeks pay.
Compen- 45. Where the Tribunal makes an award of compensation for unfair dismissal under
sation compensation for unfair dismissal under subsection (2) of section 42 or subsection
for unfair (2) (a) of section 44 the award shall consist of a basic award calculated in accordance
dismissal. with section 46 and a compensatory award calculated in accordance with section 47.
Calculation 46. (1) Subject to the following provisions of this section, the amount of the basic award
of basic shall be the amount calculated by reference to the date the employee was dismissed
award. by starting on that date and reckoning backwards the number of complete years of employment falling within that period, and allowing three weeks pay for each year of employment.
(5) Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall, except in a case where the dismissal was by
reason of redundancy, reduce the amount of the basic award by such proportion as it considers just and equitable having regard to that finding.
(6) Where the Tribunal considers that any conduct ofthe complainant before the dismissal (or, where the dismissal was with notice, before the notice was given), other than conduct taken into account by virtue of subsection (3), was such that it would be just and equitable to reduce or further reduce the amount of the basic award to any
extent, the Tribunal shall reduce or further reduce that amount accordingly.
(7) The amount of the basic award shall be reduced, by the amount of any payment, made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise.
Calcula- 47. (1) Subject to section 48, the amount of the compensatory award shall be such amount
tion of as the Tribunal considers just and equitable in all the circumstances having regard
compen to the loss sustained by the complainant in consequence of the dismissal in so
satory far as that loss is attributable to action taken by the employer.
awards.
(2) Such loss shall be taken to include -
(a ) any expenses reasonably incurred by the complainant in consequence of the
dismissal; and
( b ) subject to subsection (3), loss of any benefit which he might reasonably be
expected to have had but for the dismissal.
(3) On determining, for the purposes of subsection (1), how far any loss sustained by the complainant was attributable to action taken by the employer no account shall be taken of any pressure which, by calling, organizing, procuring or financing a strike or other industrial action, orthreatening to so do, was exercised on the employer to dismiss the employee, and that question shall be determined as if no such pressure
had been exercised.
(4) Where the Tribunal finds that the dismissal was to any extent caused or contributed to by any action of the complainant it shall reduce the amount of the compensatory award by such proportion as it considers just and equitable having regard to that finding.
(5) If the amount of any payment made by the employer to the employee on the ground that the dismissal was by reason of redundancy, whether in pursuance of Part VI or otherwise, exceeds the amount of the basic award which would be payable but for
subsection (4) of section 46 that excess shall go to reduce the amount of the compensatory award.
Limit on 48. (1) The amount of compensation awarded to a person calculated in accordance
compensa- with section 47, shall not exceed eighteen months pay:
tion Provided that where the employee holds a Supervisory or managerial position the award shall not exceed twenty-four months pay.
(2) It is hereby declared for the avoidance of doubt that the limit imposed by this
section applies to the amount which the Tribunal would, apart from this section otherwise award in respect of the subject matter of the complaint after taking into account any payment made by the respondent to the complainant in respect of that matter and any reduction in the amount of the award required by any written law.
(3) Where the Tribunal considers that any conduct of the complainant after the dismissal was such that it would be just and equitable to reduce the amount of the award to any extent, the Tribunal shall reduce that amount accordingly.
PART X
CHILDREN AND YOUNG PERSONS
Defini- 49. In this Part -
-tions "child" means any person under the age of fourteen years;
for "industrial undertaking" includes -
Part ( a ) a mine, quarry, or distillery, or a sugar, spirit compound, match, soap
X. cigar or cigarette factory, or any undertaking in which articles are
manufactured, altered, cleaned, repaired, ornamented, finished, adapted for sale, broken up or demolished or in which materials are transformed, including shipbuilding and the generation, transformation and transmission of electricity
and motive power of any kind, or any agricultural undertaking;
( b ) construction, reconstruction, maintenance, repair, alteration or demolition of any building, railway, tramway, harbour, dock,pier, canal, inland waterway, road, tunnel, bridge, viaduct, sewer, drain, well, telegraphic or telephonic installation,
electrical undertaking, gas work, water work, or other work of construction, as
well as the preparation for or laying the foundation of any such work or structures;
( c ) transport of passengers or goods by road or rail or inland waterway including the handling of goods at docks, quays, wharves and warehouses but excluding transport by hand;
"night work" means work in an industrial undertaking during any time between the hours of eight oclock in the evening and six oclock in the morning;
"parent" includes guardian or other such person who is liable to maintain or has actual custody of a child or young person;
"young person" means a person who is fourteen years of age and upwards and under the age of eighteen years.
Prohibition 50. (1) A child shall not be employed in any undertaking except as expressly provided
of employ- in the First Schedule.
ment of a (2) The Minister may be order after consultation with a confederation, being, in the
child pinion of the Minister, a confederation representative of a majority of employers and associations of employers generally and after consultation with an association of registered trade unions being an association in the opinion of the Minister
representative of a majority of employees subject to affirmative resolution of the
House of Assembly, amend the First First Schedule.
Schedule.
Prohibition 51. A child or young person shall not be employed in any work to be performed during
of employ- any hours during which any school at which such person is pupil is ordinarily
ment during in session, or during such other periods as may prejudice his attendance at such
school school or render him unfit to obtain the full benefit of the education provided for him.
hours.
Penalty 52. (1) If any person employs a child or young person contrary to any of the provisions
for of this Part, he shall be liable to a fine of one thousand dollars.
employ- (2) If any parent or guardian of a child or young person has consented to the
ment. commission of the alleged offence by wilful default, or by habitually neglecting to exercise due care, he shall be liable to the like fine.
Liability 53. Where he offence of taking a child or young person into employment contrary
of agent or to any of the provisions of this Part is committed by an agent or employee
employer of the employer, such agent or employee shall be liable to a fine as if he were the employer.
False 54. Where a child or young person is taken into employment in contravention of this
certificate Part, on the production, by or with the consent of the parent or guardian, of a false or
or repre- forged certificate, or on the false representation of his parent or,
sentation guardian that the child or young person is of an age at which employment is not in
as to age contravention of this Part, that parent or guardian shall be liable to a fine of one thousand five hundred dollars.
Presump- 55. If in charge for an offence under this Part it is alleged that the child or young
tion of person in respect of whom the offence was committed was under the age of fourteen
age. or eighteen years, as the case may be, at the date of the commission of the alleged offence he shall, unless the contrary is proved, for the purposes of this Part be presumed at that date to have been under the age of fourteen or eighteen years, as the case may be.
Prohibi- 56. It shall not be lawful to employ any young person under the age of sixteen upon any
tion of ship other than a ship -
employ- ( a ) upon which only members of the same family on are employed; or
ment ( b ) within the waters of The Bahamas.
on ships
General 57. (1) It shall not be lawful to employ a child in night
prohibition work.
of night (2) It shall not be lawful, except as expressly provided in this Part and
work. the Second Schedule to employ young persons in night work.
(3) The Minister may by order after consultation with a confederation, being, in the
opinion of the Minister, a confederation representative of a majority of employers and associations of employers generally and after consultation with an association of registered trade unions being an association in the opinion of the Minister representative of a majority of employees subject to affirmative resolution of the House of Assembly, amend the Second Schedule.
Second 58. In all industrial undertakings in the case of exceptional circumstances demanding
Schedule. it, the Minister may, by order. after consultation with a confederation
Exceptional representative of employers and associations of employers generally and after
circum- consultation with an association of registered trade unions being an association
stances. in the opinion of the Minister representative of employees subject to
affirmative resolution of the House of Assembly, suspended the prohibition
of night work for such period as he may deem necessary.
Conditions 59. A young person may work outside school hours under the following
in respect conditions
of young ( a ) in a school day, for not more than three hours;
persons. ( b ) in a school week, for not more than twenty-four hours;
( c ) in a non-school day, for not more than eight hours;
( d ) in a non-school week, for not more than forty hours.
PART XI
WAGES
Wages to 60. (1) In any contract of service hereafter to be made for the employment
be paid of any employee for the performance of any work within The Bahamas
in the the wages of such employee shall be made payable and be paid
currency at regular intervals of not more than one month to the individual employee in
of The the currency of The Bahamas and not otherwise.
Bahamas
(2) Subsection (1) shall not be construed so as to prevent or render invalid any
contract for the payment, or any actual payment, to such employee as aforesaid
of the whole or any part of his wages, in drafts or orders for the payment of money
to the bearer on demand, drawn upon any person lawfully carrying on the
business of a banker in The Bahamas, if such employee freely consents, to receive
such drafts or orders and all such payments shall for the purposes of this Act be
as valid and effectual as if such payments had been made in the currency of The Bahamas.
(3) If any draft or order as mentioned in subsection (2) shall be dishonoured or not
paid on presentation to such person lawfully carrying on the business of a banker
the employer to whom such draft or order has been delivered in such part payment
or payment of wages shall in addition to any other liability which such employer
may incur by reason of such dishonour or non-payment pay to such employee or
to a holder in due course of any such draft or order so dishonored or unpaid as
aforesaid a sum of money equal to fifteen per cent of the amount specified in such
draft or order and such sum shall be recoverable before the magistrate of the district
in which any such employee resides.
Register 61. (1) Every employer shall keep a register of wage payments and accounts in
of wages. respect of each employee for a period of three years.
(2) This section shall not apply in the case of domestic employees.
Order for 62. (1) In any action brought by an employee for the recovery of his wages, the
goods as a employer shall not be entitled to any set-off or counter-claim in respect
deduction of any goods supplied to the employee by the employer or by any person
from under any order or direction of the employer, or any agent of the employer,
wages and the employer or any agent of the employer, or any person supplying
illegal. goods to the employee, under any order or direction of such employer or agent,
shall not be entitled or direction of such employer or agent, shall not be entitled to
sue the employee for or in respect of any goods supplied by such employer or
agent, or under such order or direction, as the case may be.
(3) Nothing in subsection (1) shall be deemed to apply to any tools or implements
supplied to any such employee employed as aforesaid, or to goods not exceeding
the value of fifty dollars supplied to any such employee at the request of such
employee at the request of such employee when there shall not be within five miles
of such employment any store at which such employee could have purchased the
goods so supplied.
Require- 63. (1) Payment of wages shall be made on working days only and shall be made by cash,
ments cheque or by deposit in the employees bank account.
relating (2) Except in the case of an employee who is ordinarily employed therein, wages shall
to pay- not be paid to any employee on any premises licensed for the sale of intoxicating
ment liquor under the provisions of the Liquor Licences Act or in any shop or store.
of
wages.
Restric- 64. (1) An employer may make deductions from wages payable to an employee in accordance
tions on with the terms of any agreement made with such employee for the repayment
deduc- of money advanced to him by way of loan from the employer, but the total
tions amount of all such deductions made in any one period for which any payment
from of wages is made shall not exceed one-fifth of the amount of the wages payable
wages to such employee in respect of such period.
if em-
ployees.
(4) This section shall not affect any arrangements for deductions entered into before the commencement of this section.
No con- 65. No employer shall directly or indirectly by himself or his agent impose as a condition,
tracts express or implied, in or for the employment of any employee any terms as to the
with em- place or the manner in which, or the person with whom, any wages or portion of wages
ployees paid to the employee are or is to be expended, and no employer shall be himself or
as to his agent dismiss any employee from his employment for or on account of the place at
spending which, or the manner in which, or the person with whom, any wages or portion of wages
wages at paid by the employer to such employee are or is expected or fail to be expended.
any parti-
cular
shop, etc.
Penalty. 66. If any employer or his agent contravenes Any of the provisions of this Part the
employer or agent, as the case may be, is guilty of an offence and shall be liable on summary conviction to a fine of five hundred dollars for the first offence and to
a fine of one thousand dollars for a second or subsequent offence.
PART XII
FINGERPRINTING AND LIE DETECTOR TEST
Prohibi 67. No employer shall, as a requirement for employment or continued employment,
tion. require any person to furnish a set of his fingerprints or take a lie detector test.
Exception. 68. The provisions of sections 67 shall not respect of which licences are issued under the Lotteries and Gaming Act.
Offence. 69. Any person who contravenes section 67 is guilty of an offence and shall be liable to a fine of five thousand dollars.
Return 70. (1) Where the fingerprints of any person have been furnished to an employer
of prior to the commencement of this Act, such fingerprints and all copies and records
records. thereof shall be returned to that person within fourteen days after the commencement
of this Act.
(5) An employer who fails to comply with subsection (1) is guilty of an offence and shall be liable to a fine of five thousand dollars.
PART XIII
GENERAL PROVISIONS
Information 71. Every employer shall
and returns. ( a ) make and keep for such period as may be prescribed after the work is
performed, such records of the names,addresses, ages, wages, hours worked,
annual vacations and other conditions of work of each of his employees
as may be prescribed; and
( b ) if requested by the Minister, furnish to the Minister such information in
respect of his employees relating to the matters mentioned in paragraph
(a), and make such returns thereon in such manner as may be prescribed.
Change of 72. (1) Where a change occurs (whether by virtue of a sale or other disposition
ownership or by operation of law) in the ownership of any business for the purposes of
of business. which an employee is employed, and after such change of ownership such employee continues to be so employed without interruption, the person who immediately after the
change occurs is the owner of the business shall be deemed to be the employer
("the new employer") of that employee, and the employment shall be deemed to be c continuous, notwithstanding the change.
(6) Any change in the ownership of a business shall be binding upon any successor, administrator, transferee, executor and assign of the company, or surviving entity in the
control of the company regardless of the nature of transfer or control including but not limited to purchase, sale, merger, consolidation, acquisition, leasing of operation, reorganization, arrangement for the benefit of creditors, or bankruptcy.
(7) Any dispute filed with the Tribunal and subsisting at the time of the change between the employee or his trade union and the former employer shall be deemed to be transferred to the new employer,notwithstanding the change and notwithstanding any agreement to the contrary between the former employer and the new employer.
Pay 73. (1) An employer shall, at the time of making any payment of wages to an
state- employee, furnished to the employee a statement in writing setting out
ments. ( a ) the period for which the payment of wages is made;
( b ) the number of hours for which payment is made;
( c ) the rates of wages;
( d ) details of any deductions made from the wages; and
( e ) the actual sum being paid to the employee.
(2) The Minister may, by order, exempt any class of employer from any or all of the requirements of subsection (1).
(3) This section shall not apply in the case of domestic workers.
Notice 74. (1) Where the Minister or any person is authorised to require a person to furnish
to furnish information under this Act or the regulations, he may require the information
informa- to be furnished by by a notice to that effect served personally or sent by registered
tion. mail addressed to the last known address of the person for whom the notice is
intended, and such person shall furnish the information within such reasonable time
as is specified in the notice.
(2) A certificate of the Minister or other person as aforesaid certifying
( a ) that a notice was sent by registered mail to the person to whom it was
addressed, accompanied by a truecopy of the notice and by an identifying
certificate of such registration issued by or on behalf of the Postmaster-General; or
( b ) where the Minister or other person is authorized to require a person to furnish
information under this Act or the regulations, that the information has not
been furnished, shall be prima facie evidence in any proceedings of the facts
stated in the certificate.
(3) A certificate of the Minister or other person aforesaid certifying that a document was made by or on behalf of the Minister shall be admissible in any proceedings as prima facie evidence of that fact.
(8) A certificate under this section signed or purporting to be signed by the Minister or other person aforesaid shall be admissible in evidence in any proceedings
without proof of his appointment or signature.
Offences. 75. Any person who
( a) contravenes any provision of this Act or the regulations or any order made
there under for the contravention of which no penalty is prescribed elsewhere
in this Act or in the regulations or order; or
( b ) dismisses or threatens to dismiss any employee or reduces his wages or alters
the terms or conditions of his employment to terms or conditions less favourable to
him, or alters his position relatively to other employees employed by that person
because such employee
(i) has testified or is about to testify in any proceedings had or taken
under this or any other Act, or
(ii) has given any information to the Minister or an inspector as required
under any law regarding the wages, hours of work, annual vacations or
other conditions of work of the employee or any of his fellow
employees, is guilty of an offence and shall be liable, to a fine of five thousand
dollars.
Additional 76. Where an employer is found guilty of an offence under this Act in
powers of respect of any employee, the court may, in addition to any other penalty,
convicting order the employer to pay to the employee any overtime pay, vacation pay,
court. or other wages to which the employee is entitled under this Act, the non-payment
or insufficient payment of which constituted the offence.
Savings. 77. (1) No civil remedy of any employee against his employer for arrears of wages or for breach made under this Act shall be suspended or otherwise be affected by this Act.(2) This Act shall not apply to any industrial agreement registered with the Tribunal on the coming into
operation of this Act but shall apply on the expiration of such an agreement.
Annual 78. The Minister shall, within six months from the end of every year,
report prepare an annual report on the administration of this Act and cause such report to be laid before both Houses of Parliament.
Regula- 79. The Minister may make regulations for carrying out the purposes
tions. of this Act and, without prejudice to the generality of the foregoing, may make regulations
( a ) for calculating and determining, otherwise than for the purposes of this
Act, wages received by an employee in respect of his employment;
( b ) providing for the payment of any wages of an employee to the Minister or to some
other person in the event that the employee cannot be found, or in any other case;
( c ) providing for the establishment of committees to advise the Minister on any
matters arising in relation to the administration of this Act; and
( d ) for any other matter required or authorised by this Act to be prescribed.
Repeals 80. The Acts mentioned in the Third Schedule are repealed or amended to the extent
and specified and therein.
amend-
mants.
Third FIRST SCHEDULE (Section 50)
Schedule. EMPLOYMENT OF CHILDREN
For a period of five years from the coming into operation of this Act, a child may be employed in the following undertakings
( a ) grocery packers;
( b ) gift wrappers;
( c ) peanut vendors;
( d ) newspaper vendors.
SECOND SCHEDULE (Section 57)
EMPLOYMENT OF YOUNG PERSONS IN NIGHT WORK
A young person may be employed in the following undertakings
( a ) hotels;
( b ) restaurants;
( c ) food stores;
( d ) general merchandise stores;
( e ) gas stations.
THIRD SCHEDULE (Section 80)
REPEALS
Chapter Acts Extent of Repeal
Ch. 288 Truck Act The whole Act
Ch. 289 Contracts of Service The whole Act
Ch. 291 Employment of Children The whole Act
Prohibition Act
Chapter Acts Extent of Repeal
Ch. 292 Employment of Young The whole Act
Persons Act
Ch. 295 Fair Labour Standards The whole Act
Act
Ch. 296 Industrial Relations Act Section 53E
(3), (4) and (5)
8 of 1988 Female Employees (Grant The whole Act
of Maternity Leave) Act |
