Dear Editor,
Section 8 of the Labour Act Cap 98:01 reads as follows: (Note that the Committee referred to is an Advisory Committee composed of employers and employees and such other members the Minister may deem fit.)
“8. (1) On considering the recommendations of the Committee the Minister may, subject to negative resolution of the National Assembly, make an order prescribing the minimum rates of wages payable.
(2) The order may prescribe time-rates, piece-rates and overtime rates, or any of them.
(3) When a rate of wage is prescribed in respect of a part of Guyana the boundaries thereof shall be set out in the order.
(4) Any such rate as aforesaid or the revocation or variation of any such rate shall become effective on the date on which the order is published in the Gazette or on such earlier or later date as is specified in that behalf in the order:
Provided that –
(a) no date earlier than that on which the order is published in the Gazette shall be specified in any order under this subsection unless the Minister is satisfied that the circumstances of the case are such as to justify specially favourable treatment; and
(b) no date shall be so specified which is more than one month anterior to the date on which the order is published in the Gazette.
(5) The expression “overtime rate” means a rate (whether a time-rate or a piece-rate) to apply, in substitution for the prescribed rate which would otherwise be applicable, in respect of hours worked by an employee in any week or on any day in excess of the number of hours declared in regulations made by the Minister under this Act to be the normal number of hours per week or for that day in the occupation.”
Those who would not have troubled to search for Section 8 may be encouraged to do so after taking account of Section 9, reproduced hereunder.
“9. (1) Before the Minister makes an order under section 8 (1) or (3), he shall, in such manner as he thinks best adapted for informing persons affected, cause to be published notice of his intention to make the order, of the place where copies of the draft order may be obtained, and of the time, which shall not be less than thirty days, within which any objection made with respect to the draft order must be sent to the Minister.”
The remainder of Section 9 provides for the Minister to arrange for inquiry into specific grounds of objection in writing, as well as “omissions, additions or modifications asked for.”
Holiday with Pay Act: Cap 99:02
For the benefit of both employers and workers, reference to this Act should be relevant.
Section 3 reads as follows:
“3. (1) Every worker being in employment shall be allowed a period of holidays with pay of not less than one day for each completed month of employment computed from the date of engagement.
(2) Every worker who is employed on a daily or hourly basis, shall be allowed a period of holidays with pay of not less than one day for every period of twenty days or one hundred and sixty hours worked as the case may be.
(3) Every worker who is employed on a daily or hourly basis, shall be allowed a period of holidays with pay of not less than one day sixty hours worked as the case may be.
Section 4 goes on to insist that no employer can require ‘a worker to take his (her) holidays with pay in periods of less than six consecutive days’, but that Sundays or Public Holidays shall not be computed as holidays with pay.”
What the foregoing indicates is that the Order under discussion needs to be comprehended in relation to interconnected legislation.
Importantly, Paragraph 5 of the Order published on Sunday June 2, 2013 reference is made to:
(i) Labour (Conditions of Employment of Certain Workers) Act No 18 of 1978 (Cap 99:03;
(ii) Factories Act, Cap 95:02 (This should read: Hours and Holidays Act.)
Included in the Act listed at (i) above, are the following sections, amongst others.
“4. (1) Notwithstanding section 11 (d) and subject to sections 6 and 7 of the Shops (Consolidation) Act and notwithstanding section 5 of the Licensed Premises Act and subject to section 7 and 8 of the said Act and subsection (2) hereof, every worker who, at the request of his employer, works for any period exceeding seven and one-quarter hours in any one day, shall be paid in respect of every hour or part of an hour so worked in excess thereof at one and one half times the rate at which he should, but for this section, be paid.
(2) Except as otherwise provided under any law, every worker who is employed on a Sunday or a public holiday shall be paid a minimum of one and one-half times his hourly rate of pay for all hours worked on such days.
“5. Without prejudice to the provisions of sections 9 and 11 of the Shops (Consolidation) Act, the employer of any worker shall, on each working day, allow to such worker an interval from work of not less than one hour for luncheon or dinner, as the case may be, and when his duties require him to work overtime hours, the employer shall allow to such worker an interval of not less than one-quarter of an hour for the taking of a meal for ever four hours or part thereof worked as overtime.
“6. Without prejudice to the provisions of section 13 of the Shops (Consolidation) Act, the employer of workers shall provide a suitable room for the accommodation of workers during any intervals from work provided for by this Act.
“7. Every employer shall grant to every worker a holiday on one week-day in every week and, in addition, shall grant such worker a half-holiday on every alternate Sunday.
“8. (1) Every employer of workers shall keep a register in such form as the Minister may approve in which shall be entered –
(a) particulars of wages paid to workers employed by him;
(b) the date on which each worker entered his employment.
(2) Every such employer shall produce the register for the inspection of any officer of the Labour Department designated for the purposes of section 30 (1) of the Labour Act, when requested to do so.
“9. For every three waiters employed in any hotel by an employer a trainee-waiter shall be employed by him.
“10. (1) Every worker shall be supplied by his employer with at least one hot meal on every working day in addition to the appropriate wage payable to him under this Act.
Provided that if a worker is employed in any establishment which does not serve meals the employer shall pay him in lieu thereof, the cash value of any meal not supplied.
(2) The cash value of any meal not supplied shall be deemed to be the amount fixed as such by or under the terms of the worker’s employment, or if it is not so fixed, shall be as determined by the Chief Labour Officer.
(3) Where any worker is required to wear a uniform, such uniform shall be supplied and kept laundered, free of charge by his employer.
Part 1 of the Factories (Hours and Holidays) Act Cap 95:02 defines ‘factory’ as follows:
“(a) Any premises in which, or within the close or curtilage or precincts of which, persons are employed in any process for or incidental to any of the following purposes, that is to say:
(i) the making of any article or of part of any article; or
(ii) the altering, repairing, ornamenting, finishing, cleaning, or washing, or the breaking up or demolition of any article; or
(iii) the adapting for sale of any article; or
(iv) the generating, transforming or converting, or switching, controlling, or otherwise regulating electrical energy, and the work is carried on by way of trade or for purposes of gain and to or over which the employer of the persons employed therein has the right of access or control:
“Provided that no place situate within the close, curtilage, or precincts forming a factory and solely used for some purpose other than the processes carried on in the factory, shall be deemed to form part of a factory, but such place shall, if otherwise it would be a factory, be deemed to be a separate factory; any premises or undertaking specified in the Schedule (shown at Annexe 4) where persons are employed in manual labour and the Schedule may be amended by order made by the Minister.”
Hours of work in relation to the New National Minimum Wage
With regard to the specification of the 40 hour work week being restricted by the order, to Monday through Friday, the following excerpt from a GINA press release published in Stabroek News of June 11, 2013 makes the position quite clear.
GINA quoted the minister as saying that shift workers who are employed to work on weekends will benefit from a premium rate of pay, as the rate will be based on the fact that they work on weekends and holidays, regardless of whether they are over or under the regulated 40-hour work week. He advocated, “Those who are working under conditions less advantageous should be brought up to the minimum conditions at least. Those who are earning higher should continue to receive it.”
The minister said that under the new minimum wage, no worker should be paid less than $202 per hour, $1,616 daily, $8,080 per week, or $35, 000 per month. With 40 hours per week in a five-day work week, he explained, “Should they be required to work beyond the stipulated work week, they have to be paid overtime in accordance with the various labour laws of the country.”
The minister acknowledged that government workers have a relatively higher salary scale where the minimum amounts to approximately $50,000 per month. This rate, he said, was set as a result of collective bargaining agreements between the government and trade unions.
Note the actual GS01 Scale in the National Estimates reads $37,657-42,969
According to the minister, “We didn’t want to put the national minimum wage to the public sector [rate] because for us to do that would put the private sector under pressure especially those who are struggling… that is why we work[ed] with the private sector and trade union officials to find a good balance.”
Explanatory Note to the New Minimum Wage Order
This is seen at the bottom of the Notice published in the press. It states as follows: “There is however a prescribed wage for Public Servants which attracts an annual increase.”
The latter may well be a contentious formulation, just possibly inviting inquiry of the apparent differentiation of ‘worker’ from ‘public servant’, particularly since not necessarily all of the latter are ‘granted’, only on the administration’s decision, both in relation to amount and timing, e.g. as much as 8%, and inclusive of ‘contracted employees’ whose ‘wages’ are not ‘prescribed’.
There are also sectors of Public Service whose employees are ‘granted’ varying percentages. Additionally, it should be noted that no annual increase has been effected since before the general elections of 2011.
Impact of Work Week and Payment of Premium Time on Specific Budget Agencies
Included in the National Estimates are the Ministry of Health and the Georgetown Public Service Hospital Corporation, whose ‘workers’ must function on a shift system (not unlike GuySuCo, GPL and CJIA for example). It would be interesting to learn what adjustments will be instituted for weekend work.
Impact on Private Sector Organisation
If it is confirmed that shift work is also practised in such manufacturing organisations like DDL and Banks DIH, then they (and many others) must face the same challenges as their public sector counterparts. The hospitality industry would certainly have to ponder the financial costs involved. Similarly would also those enterprises which, in Regent and Robb Streets for example, anticipate Saturday as a peak day for shoppers.
Monitoring and Implementation of Provisions of the Order
In this regard it is difficult to contemplate the resources necessary for ensuring compliance with the Order.
Apart from the needed clarification of the meaning of
(a) “Television” vis-à-vis Cable Providers/Satellite (TV)
(b) Timber Grants, Lumber Yard Workers, and Sawmill Workers
(c) Machine Shop and Machinists/Fabricators/Welders
The above apart is the expansive geographic range to cover – from wash bays to wildlife farms, from chowmein factory to casino.
Importantly, however, there can be an element of discrimination when it comes to imposing compliance on foreign investors (who were attracted by generous concessions and who may assume immunity to the Order) to the possible disadvantage of local entrepreneurs.
Finally it is recommended that the above should be read in conjunction with the text of Mohammed Akeel’s letter in Stabroek News of July 19, 2013, and certainly in relation to this question: ‘Would sectoral Minimum Wage Orders continue to be made? – which he asked for the reason set out in his own words in the following excerpt, as an example:
“…this Order disturbs the differential between categories of workers in the sectoral minimum wage orders made by the Minister in 2012, eg, a labourer and a sales representative will now receive the same wage. Workers not covered by sectoral orders will be similarly affected for there is nothing in the Order to say that persons receiving above the national minimum shall be granted an incremental increase of a certain percent. On the contrary, the Order states that a worker receiving a higher rate shall continue to be paid such rate. So an unskilled, semi-skilled, skilled and a clerical worker in an enterprise may all end up receiving the same rate.”
Yours faithfully,
EB John
