Hon. Fraser clarifies New Labour Code for Business Community


The business community, previously up in arms with government over the proposed new Labour Code, can now rest a little easier, following a very successful meeting with Minister of Natural Resources and Labour the Honourable Julian Fraser.
The BVI Chamber of Commerce and Industry (BVICCHA) hosted the November 7th meeting at the Minister’s request. He spared no effort in clarifying the many concerns expressed, focusing extensively on the more prominent and thorny issues of work permit term limits and the establishment of a tribunal. In general, he pointed out that this is the principal legislation to be augmented by subsidiary legislation.

On term limits, Minister Fraser explained that the Commissioner of Labour, upon receiving an application for a work permit would continue to conduct an investigation surrounding the application for a new permit or a renewal or extension and report to the Minister. A work permit granted is effective for a period of up to one year at a time, but in any case, not exceeding a total of five years as the Minister may allow. “The reason for the review is to ensure that there is a system of understudy…whereby some local would someday rise up to be your company’s executive.”

Upon application, a work permit may be renewed or extended by the Minister from time to time. A person might be granted a work permit for a further period if it is shown that the person has, after the five-year period, lived outside the Virgin Islands for a determined period. But generally, no extensions would be permitted beyond a further period of three more years.
“The BVI community has made a clear statement that the BVI should not be host, in the future, to a large number of long term residents,” Hon. Fraser stated. He said to achieve the community’s wishes, it will be necessary for the Minister to exercise the right to limit the amount of time an individual remains in the BVI on work permit.

He said given his two and a half years experience as Minister with responsibility for Labour, he does not want to bear the burden of determining who should or should not stay in the territory for five years or beyond. He believes that this should be the mandate of either the Executive or Legislative Council.

“There will be no term limits on work permits for those jobs where, judged on the zero base immigration policy, there are no British Virgin Islanders available in these areas,” Minister Fraser stated. “Where a case can be made that the required skills are not available locally, the work permit holder will be designated as key; accordingly, there will be no term limit put on such a person’s employment in the British Virgin Islands, unless and until there is a shift which reflects that a BVIslander is able to produce and is in fact producing the numbers required to sustain the economy.”
The Minister said the aim is to enact policy which recognizes the diversity of the BVI economy and its reliance on international business as a key component of the economy and therefore to produce policies which work in tandem to maintain and sustain key personnel. He pointed out that key persons could be found in all levels and in all areas of a business.

For an employee to be categorized as key, the company must demonstrate that the person is among the best practitioners in the world, has rare specialized expertise, there is a severe shortage of the person’s particular skills, that without the continued presence of the individual the company will be seriously injured to its own detriment and to that of the interest of the BVI and BV Islanders, the person has crucial business contacts critical to the company’s continued success or the individual is directly responsible for creating well-paying jobs to which BV Islanders can aspire or for training BV Islanders in worthwhile careers.
“Term limits has nothing to do with any man, woman and child in the BVI at this time or up until the time this Bill is passed,” Minister Fraser reiterated. “It is not our intent to stifle the growth of your business; it is not our intent to interfere with the way you wish to run your business. We have one goal in mind and that’s to empower those people that we consider to be Belongers.”
He said government acknowledges that the BVI does not have unlimited resources. “We pride ourselves in borrowing from that which came to us…if you look around the community you would notice that we have inter-marriages…we learn in our schools from people who came here to teach us…so, there is no prejudice here…with this Code.”

Regarding the other issue of the tribunal and settlement of disputes, the Minister for Natural Resources and Labour noted that it has always been the practice for disputes to go to the Labour Commissioner and then to the Minister. But he said the problem with that was that there was no finality to a dispute, except if both parties had the wherewithal to end up in court.
“I find it to be extremely frustrating when as Minister I issue an order for a dispute to come to finality and nothing takes place,” Hon. Fraser stated. He said it seems that employers are becoming more vigilant as to their rights and engage their attorneys even before the dispute reaches the Labour Department. “Once that step is taken, it is literally almost out of our hands.”

According to the Minister, the time has come when it’s in the best interest of both Labour and management to get to talking to each other and solving their problems. He said there are two choices in the matter if it is the Minister’s and the government’s position that disputes must come to closure - either the Minister becomes the final arbiter (which he said he doesn’t want to be) or a tribunal is established.

He said the Minister would appoint the tribunal, which will comprise one person appointed by the Minister by order on such terms and conditions he may determine and two assessors (one representing the employer and the other the employee and be nominated by the respective organizations).
Members of the business community spent sometime dialoguing with the Minister after his presentation, discussing issues also including severance pay, redundancy and the timing of the Bill’s introduction.

There were suggestions that this whole mêlée could have been avoided had government taken the time to elaborate on the issues before taking the Code to the House. It was also recommended that government engage in damage control, with a clear message that the BVI does in fact welcome potential investors and tourists.
The Bill had its first reading in late September. Minister Fraser has assured the public that while this Bill will pass, it might not receive its second and third readings at the November 15th and 22nd sittings of the Legislative Council.