I will tell you what happened. You take from my story what you want. Feel free to discard the rest.
In late 1980, I was in the
last of my four years as Magistrate, Registrar of the Supreme Court, and Registrar
of Companies of Anguilla. Reginald
Lucie-Smith was the Attorney General, and at that time the only other lawyer besides
me in the public service. Ronald Webster’s
party was victorious at the polls. He
was the new Chief Minister. He dropped
into my office at the Courthouse unannounced.
He explained that he had a little job for me. Reggie was on vacation. In Reggie’s absence, Ronald decided that he
wanted me to draft a law for him to make trades unions illegal in Anguilla.
His mind was on St Kitts and
Antigua. During the 1940s, 50s and 60s,
strong trades unions were, with the help of the British Labour Party,
established in those islands. They
formed political parties and sought political office. They were successful and pervasive. It took some forty years before any other
political grouping challenged their hold on power.
Ronald was determined not to
allow this to happen in Anguilla. He had
previously been forced out of office by a splinter group of his party. He considered he had crushed them in the
general elections of earlier that year. The
tourist industry was beginning to take off in Anguilla. More and more workers were going into that
industry. He was concerned that they
might become organised. He recognised
that worker organisation might pose a threat.
He feared trades unionism becoming a contending political force in
Anguilla. His solution was to pass a law
banning trades unions. I told him I would
have a go at drafting it for him.
After a few days, I went to
see him empty handed. I told him that I
had done the research. Britain had
signed up to a Geneva Convention that made it illegal for a country to
criminalise trades union activities. The
Constitution was against him. It protected
the fundamental right of Anguillians to associate together in unions.
Ronald was not fazed by my
failure. He had a back-up plan. He would create a Labour Department that
would be so pro-worker that no trades union would ever be needed in
Anguilla. He would make sure that his
administration was so protective of workers’ rights that it would never occur
to them to form a union.
And so was born the Labour
Department Act and the Fair Labour Standards Act. Ronald next secured the passage into law of the
Social Security Act. Employers
and workers contribute to a fund. The
fund provides sickness benefits and pensions to workers in the private sector,
like the arrangements then existing only for public sector workers. And so, Ronald accidentally completed Anguilla’s
workers’ protection scheme.
Minimum Wage Law
Until about the year 1978, Anguilla offered its
people little by way of wage labour. The
first modern hotels (as distinct from family-owned and -run guest houses) were
Cinnamon Reef, Cul de Sac and Malliouhana.
These pioneers were obliged to train their own labour force, since there
was no previous hospitality industry to do so for them. Indeed, Leon and Lyane Royden famously bought
the Cul de Sac hotel from the aging Ruth Goodnow to use as a training school for
their staff for their soon-to-be-opened Malliouhana Hotel. Once the Malliouhana opened, they sold the
Cul de Sac as no longer needed.
Hotel workers accepted
whatever salary was offered by these early employers. Previously, the women had been unemployed
housewives, or, in the case of the men, salt pickers, fishermen and
construction workers. If the wage offered
was unsatisfactory, the worker could always resign. There were plenty others to take his or her
place.
As the years passed, a corps
of trained front office, housekeeping, and restaurant staff grew in the island. Grumbling began about wages and other work
conditions. Starting in the mid-1980s,
political parties seized on the minimum-wage issue for electioneering purposes. Both the island’s two main political parties
took up the refrain. They both promised
to introduce minimum wages during their term of office. Despite setting up committees to conduct
research and produce reports, nothing concrete came of it.
What was preventing the
passage of the appropriate law? The cynic
answers that the big hotels were major contributors to party campaign
funds. In this way, they captured each
administration.
A little research reveals another
kettle of fish. It seems that the major
(foreign-owned) hotels pay well above the average, when share of gratuity is factored
in. Every hotel and restaurant guest
pays a 10-15% tip, service charge or gratuity, on top of their bill. This money is typically pooled and controlled
by a workers’ committee at each place of employment. The gratuities are usually distributed to the
workers on a point-based system. This
share of gratuity forms a substantial part of each worker’s remuneration. In many months, I understand, it exceeds the
basic pay.
Many locally owned hardware
stores, groceries, restaurants and guest houses are fair and generous to their
workers. But there are exceptions. Here is where most employee complaints come
from. Foreign hotel owners don’t have
the vote. Local employers do. Guess which ones each government is more
afraid of offending by introducing minimum wages. Each time there is an initiative to introduce
minimum wage legislation, it is lobbying by local employers that stops
progress.
The Gig Economy
Ronald’s intention was to have the Labour
Department stand between worker and employer, and always favour the worker. To this end, mandatory mediation and
conciliation procedures were introduced by his new labour legislation. A Labour Commissioner was appointed,
empowered by law to descend on any allegedly offending employer and demand to
see the books. The Labour Commissioner could
disrupt the work of the employer and call meetings of the workers. Through “conciliation” the Commissioner could
persuade employers to make concessions satisfactory to the workers.
If the Labour Commissioner was
not successful in mediating the dispute, there was a statutory provision for
the Minister of Labour to intervene to “conciliate” the dispute. The Minister of Labour was usually the Chief
Minister, a powerful office. The
Minister of Labour was the person who issued work permits, a necessity for foreign-owned
hotels and restaurants. There were
occasions when members of staff were dismissed for gross misbehaviour such as
stealing, and either the Labour Commissioner or the Chief Minister forced a
backdown and reinstatement of the worker.
Due to these and other abuses,
employers cast about for a method to free themselves from the more tiresome
aspects of local labour. Replacing them
by foreign labour was not a good solution.
The Minister of Labour could not always be persuaded to issue the needed
work permit in time. The solution hit on
was to alter the relationship between worker and employer so fundamentally that
the oppressive provisions protective of workers no longer applied. Convert long-term employees into short-term
employees on annual contracts. At the
beginning of each new tourism season, make previous employees apply for
employment afresh. They might or they
might not be offered employment, on the same or different conditions. This solution required official approval, or
at least condonation. Some foreign employers
got it.
Anguilla is not the first
country to find employers replacing full-time staff with short-term contracts,
usually of one year. This arrangement is
often referred to as the “gig-economy.” A
gig, an abbreviation for “engagement”, originally described short-term
employment in the entertainment industry.
A musical band going on tour would require temporary electricians, stage
carpenters, and electronic technicians, to accompany them. They were said to be doing a gig. At the end of the gig, these short-term
employees would be released from their employment. A gig worker was not a permanent employee,
but instead classified in employment law as an independent contractor. Consequently, there were no pension costs or
holiday pay obligations as with permanent employees. Unless the Social Security Act was
amended, as was done in the UK but not in Anguilla, there was no obligation for
the employer of an independent contractor to contribute to the social security
scheme.
Slowly, hotel by hotel, Anguillian
hotel workers were re-classified as “self-employed” and placed on one-year or
shorter contracts. Any recalcitrant
worker need only be endured until the end of the contract and then, without
risk or cost, be permanently let go. The
fierce anti-firing procedures originally developed by Ronald became
redundant.
This arrangement is of no
benefit to the worker. It is solely
created for the benefit of the employer.
It does not benefit society. In
the event of termination after several years of steady employment, no severance-type
benefit applies, since this was merely an annual contract. If the hotel is sold, the new owner is not
obliged, as the law requires for permanent employees, to take on the employees
on the same or better terms, since these are annual contracts.
This annual contract arrangement
would be illegal under the provisions of the Fair Labour Standards Act,
if the Act was strictly enforced. The
Act was quietly ignored. There was no
trades union to take up the interests of the workers.
Government squeezed one
concession out of the major employers. Without
special provision in the law, an employer of an independent contractor is not legally
obliged to pay social security contributions.
No such provision was made in the law in Anguilla. Even though it was not strictly legally
required, the short-term contract employers in many cases agreed to continue to
make the social security contributions in return for enjoying the benefits of
being able to classify their workers as independent contractors and not as
employees. And so, with a minimum of
expenditure and cost, most of Ronald’s scheme for protecting Anguilla’s workers
was dismantled.
The new Labour (Relations)
Act of 2019 is touted to bring changes to employer/employee relations in
stages in the coming years. Will it bring
real reforms to Anguilla? Or, will it
become dormant like so many other legislated social reforms before it?
