By Angela Burns Piper

If the new Labour Code for the British Virgin Islands is passed as is, Non-Belonger employees would not be granted work permits for more than five years in the first instance.

That’s one of the main features that form the proposed amendments in the draft Labour Code 2001 that is now being circulated for comment from the general public. But if the business community has its way, that provision has to be removed!

Undoubtedly, this and other provisions would have widespread implications for the economic development of the British Virgin Islands. With this in mind, government is engaging in a series of public consultations to get the views of the business community and the general public on the proposed changes.

On Wednesday, members of the BVI Chamber of Commerce and Hotel Association (BVICCHA) heard from Labour Commissioner Wendell Potter during the Chamber’s monthly general luncheon meeting held at the Fort Burt Hotel. The businessmen and women are vehemently opposed to certain aspects of the new Code and they made no bones about letting Mr. Potter know of their concerns.

The Labour Commissioner pointed out some of the proposals in the draft, explaining that modern legislation is part of an overall commitment by the Labour Department to strengthen the department and for the department to become more proactive in the field of labour. “We have begun to shift from a department whose primary activities are work permit processing and handling labour complaints. We’ve begun to move towards a more proactive leadership in areas of job placements and training.”

The current labour standards have been in existence for over 20 years. The draft Bill has been in the making for several years now, has been discussed amongst government’s social partners, takes into account regional and international labour standards and ultimately proposes increases to existing standards.

For example, the draft new Labour Code would increase vacation pay by 25%, employers would be required to give more notice of termination to employees with more than 10 years service, maternity leave is specifically catered for, there is an increase in severance pay and the requirements for qualification has been expanded, procedures for terminating service has been revised and clarified and imprisonment as one penalty for labour offences has been eliminated.

In addition, there would be specific provisions for the Labour Commissioner to provide a report to the Minister on the work of the department, specific provisions have been made for meal intervals, for workers to be compensated at time and a half if called in on a rest day and there would be an exact procedure on how gratuity (to be calculated at 5%) should be distributed. The draft Bill also mandates that employees be officially given notice of change of ownership in the business.

“We have (also) looked at the dispute situation,” Mr. Potter stated. As it stands now, if a dispute goes to the Labour Commissioner, the means to arrive at a settlement has to be voluntary, where the Labour Commissioner calls the parties together, hear from both sides, try to mediate and arrive at a settlement that is satisfactory to both parties.

“Now, that is no easy task and very often, some disputes can go on and on where settlement cannot be reached…(so) we need a little more,” he stated. What is now being proposed is for the establishment of a tribunal or Board of Inquiry.

As far as the work permit situation is concerned, the same pertains in the new as with the old ordinance, that persons who belong to the British Virgin Islands and military personnel are exempt from having to get a work permit. For all other persons, applications for work permits, renewals and extensions must still be filed with the Labour Department.

“A work permit may be issued for a period up to one year at a time and be renewed or extended, but a new 5-year limit on work permits will come into effect,” the Labour Commissioner announced. This is a new feature of the draft Code that has been added since its first introduction in the House in 1998.

“A 5-year limit means that an employee who has held work permits for a period of five years must leave the British Virgin Islands with his or her dependents and remain outside the territory for a period to be determined by the Governor-in-Council before that person can be considered for re-employment or new employment,” he explained.

Mr. Potter said the limits on work permits are seen as needed to ensure that businesses and firms have a genuine interest in recruiting and training BV Islanders. He said there would be flexibility in the system to ensure that the British Virgin Islands continue to have the ability to attract skilled workers that are in short supply not just in the BVI, but also around the world.

“It would be wrong indeed if term limits would lead us to lose these important workers, therefore provisions will be made to exempt positions and persons who have proven to be key to the success of the company,” he however stated. He said companies must make a case to have the worker or boss exempted.

“But only companies who are good corporate citizens would be considered,” the Labour Commissioner pointed out. He said a company would be considered a good corporate citizen by its record of training and employing BVIslanders, producing clear and correct job descriptions and submitting properly completed work permit applications, among other things.

Counting towards the 5-year limit on work permits may date back one or two years or may commence immediately if this provision is accepted by government. “We believe that the time has come for us to put procedures in place that we are certain that the citizens of the country do not feel left out…that every effort is being made by…employers to attract and seek out belongers and train them,” Mr. Potter said.

Throughout the question and answer period, the Labour Commissioner reiterated that this draft new Labour Code was not cast in stone and that there is still opportunity for dialogue. “It’s not just an academic exercise; we come to you genuinely, giving you an opportunity to dialogue with regards to the Labour Code.”

Members of the business community were quick to call on government to consider whether it was the right time to effect changes in the Labour Code, given the world economic situation in light of the September 11th attack on America. They questioned whether businesses would be made to hire persons who do not qualify for a position, simply because they are BVIslanders and suggested that this would be crippling to their businesses.
They also questioned who would be responsible for the severance pay if this 5-year limit is implemented. It was noted that an estimated 80% of permits are renewals and the fate of these employees must be considered.Statistics from the Labour Department suggest that the BVI currently issues and renews up to 6,000 work permits annually. Of those, about 1,500 are new ones and half of that are 5-year renewals.

The businesspersons suggest that this new 5-year limit would have an effect on naturalization, on the viability of smaller businesses that would be forced to make redundancies and it would adversely affect the investment potential for the territory.

On another front, one businessman suggested that any tribunal established would be biased, while another questioned the necessity of granting special time for employees to cash their cheques.

Residents of the BVI are encouraged to get involved in this debate and give their feedback on the draft Labour Code 2001, especially in light of the tremendous implications it can have for the BVI.