This article is the second in a two-part series on the proposed legislation.

Donald DeCastro was on the first committee to redraft the Labour Code under the last Virgin Islands Party government. He remembers it being set aside under the National Democratic Party. Now, he says, whatever flaws the proposed code has, it should be passed.

“The old code was outdated,” Mr. DeCastro said in an interview yesterday. “There are a number of things in it that I didn’t like, but if they don’t pass it, or try to amend it, we will never get anything.”

For many, Mr. DeCastro’s opinion rings true. The existing Labour Code was passed in 1975, and in the interim, the VI has fallen woefully behind in international and regional standards for work safety, childhood labour, equality of treatment in employment and severance and gratuity pay.

“We all know that the 1975 Labour Code that we now have on the books has not kept pace with the economic and social development of the territory and the time has long passed for government to enact a new code,” Natural Resources and Labour Minister Omar Hodge said last year, when the draft law was released.

On Monday, his permanent secretary, Clyde Lettsome, echoed his remarks. “No time is a good time for some of these things, but the reality is that the code we have at the moment is by far outdated, and we need something modernised for the business and working community.”

But for others, the code’s shortfalls may spell disaster if addressed after the fact. A limitation on the employment period granted under a work permit could drive prospective employees away from the territory’s lucrative financial sector, they argue, and the knockdown effect may dry up home and car rentals, restaurant revenue and retail receipts.

Employee rights

Clive Pegus, a labour consultant hired by the government to assist in redrafting the code, said many of the reforms would be good for everyone. Improving health and safety requirements, he argued, would benefit the employee and reduce employer liability.

Speaking from his office in Trinidad, Mr. Pegus said that the existing Labour Code falls below both Caribbean and international agreements. “The current proposal would seek to bring the BVI as close as possible to Caribbean standards,” he said.

Mr. Pegus, a labour specialist who has authored reviews for the governments of St. Lucia, Jamaica, and elsewhere in the region, identified other critical issues that were reformed in the draft legislation.

Under the proposed act, trade unions can be recognised as bargaining agents; and tribunals and boards can be established to resolve workplace disputes.

According to BVI Bar Association President Tana’ania Small-Davis, the Bar welcomes the new protections, calling the introduction of unions a “significant step.” However, the group is apprehensive about the law’s administration.

“We were concerned about the process of settling labour disputes, as, in the past, there was not necessarily uniformity of application of what was termed ‘policy’ but which remained largely unknown to the public,” Ms. Small-Davis explained. “The current draft makes provisions that make the process more transparent … although much will depend on the manner in which the provisions are put in practice.”

The proposed law also defines discrimination; codifies standards for the equality of treatment and pay in the workplace; bans sexual harassment; and establishes fines and remedies when the law is broken.

Also under the proposed law, fathers are entitled to one month’s paternity leave, without pay.  

Moreover, the section on occupational safety and health has been expanded; power of inspectors to enter premises and interview employers and employees strengthened; and protections for children and young people in the workplace added.

All this, Mr. Pegus said, will certainly protect the rights of employees in the VI.

Perhaps the most divisive issue in the proposed code has been the introduction of a limitation on the term of a work permit. When a proposed four-year limit was brought up in a public meeting last year, the audience balked.

“Quite a lot of expatriates will rethink coming into the VI, for any company or industry, if they knew they would be limited to four years,” said one man, who argued that many expatriates live their entire lives here.

According to Mr. Pegus, that is precisely the problem.

“The purpose of a work permit is to facilitate the temporary entry of a foreign worker,” he said at the time. Expatriate workers, he argued, place “great political and social difficulties on the people of the VI,” and “could compromise the individual rights of the indigenous people.”

Since last year, drafters have lengthened the proposed term limit from four to seven years.

Craig Williams, chairman of the VI Association of Registered Agents, said members were pleased that the term limit was extended. “I think for a lot of the employers, it is better than the 2005 draft,” he said yesterday morning. “There is still an issue of whether we are making ourselves uncompetitive because we are placing limits. I think we need to recognise that politically there needed to be something there.”

Judy Haycraft, the senior manager of Deloitte Human Capital and the vice president of the Virgin Islands Human Resources Association, said a solution is needed to ensure belongers have access to senior positions in financial firms — but stopped short of fully endorsing the limit.

“I think it is going to affect the level of commitment expatriates may feel living in the BVI, because it is not necessarily going to be a long-term place for them to stay,” she said.

Financial sector

A major draw for prospective employees, explained Ms. Haycraft, is the territory’s vibrant financial sector. Any contraction in the sector, she added, could mean a knockdown effect for the sector and the territory’s associated industries. “If we can’t address the best talent on the market, it could affect our competitiveness on the international level,” she said.

For the Bar Association, the situation is similar. While many within the Bar agree that changes made to the proposed 2005 limits are positive, concerns remain that obstacles in hiring qualified professionals could impede growth and development.

“It is not readily evident that the introduction of term limits does much in effectively dealing with the issue from the point of view of strengthening the indigenous work force,” Ms. Small-Davis explained. “We would think that for a jurisdiction such as this, it is infinitely more important to be seen to be employing the best person for the job, the highest qualified, the most efficient.”

Second reading

“What we have sought to do is create a balanced code,” the Natural Resources and Labour permanent secretary said on Monday. “We went from community to community, talking to the business community, in their settings, hotels, associations … [and] we had some very wide representations.”

Mr. Lettsome explained that the next step is for House of Assembly members to meet in committee and discuss the draft. His ministry has transcribed responses, and the document will be sent to committee with the draft bill.

“As [HOA members] go through, clause by clause, the issues that are of concern to the public, they will look across and say, there is a concern about ‘xyz.’ Members will be able to change or update the draft that is before them,” he said, adding, “All the issues that we received from the public are being taken very seriously.”