Make your own free website on Tripod.com
Bahamas Gaming & Allied Worker's Union
Labour Laws Of The Bahamas

Home

History Of The Bahamas Gaming & Allied Worker's Union | Executive Committee | News Paper Archives & Press Releases | Join The Bahamas Gaming & Allied Worker's Union | Labour Laws Of The Bahamas | Bahamas Hotel Association Link | ILO - General Activities, Standards, Fundamental Principles And Rights At Work | The ILO In The Caribbean | Union & Employment Issues | Gaming Floor - Research & Education | Smoking In The Work Place

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

.