The Tribune

By NATARIO McKENZIE

Tribune Business Reporter

nmckenzie@tribunemedia.net

THE TRADE Union Congress’s (TUC) president yesterday urged the Government to “bring clarity” to vacation entitlements, arguing: “It’s either the practice or the law”.

Speaking with Tribune Business at the TUC Wulff Road headquarters, Obie Ferguson said that according to the Employment Act, a week is defined as seven days, although the practice is that a week is recognised as five days.

“That dispute should be cleared up because the way the law is now, there is some uncertainty. Your vacation should be based on seven days. That’s the law. There is some inconsistency there. Those kind of things need to be cleared up. Those kinds of things ought to be cleared up because it creates problems for the worker,” said Mr Ferguson.

He added: “You are required to work 40 hours a week. Most calculate that to five days because you work eight hours a day. They are now saying the week is five days, but a week in the Act is seven days.

“Your vacation should be seven days not five, because a week in the Act has been defined as seven days. We have been practicing five days.

“You have a practice and you have a law. The law must take precedence over the practice, and I suggested a long time ago that we amend the law. We can’t have the practice and the law running parallel. It’s either the practice or the law. If it’s the practice, then make the practice the law and repeal what you have.”

The vacation entitlement issue was brought to the fore last year when Harrison Lockhart, the Industrial Tribunal’s president, in an August 28, 2013, decision, ruled that the minimum paid vacation entitlements in the Employment Act did not include the 48 hours (two days) per week of rest that all employees are entitled to.

As a result, Mr Lockhart found that workers entitled to a minimum two weeks’ paid vacation per year were really allowed a minimum ‘14 working days’ or almost three weeks.

And those workers eligible for three weeks’ paid vacation, under his determination, were really entitled to 21 working days or more than four weeks off.

Bahamian employers and workers have operated on the basis that the ‘two week’ and ‘three week’ paid vacation legal minimums include the ‘48 hours of rest’. As a result, staff have received only 14 and 21 consecutive days off, respectively.

Mr Lockhart’s ruling stemmed from a determination he was asked to make over the industrial agreement between the Central Bank of the Bahamas and the union representing many of its staff. The union had asked him to determine whether, under the agreement, the Central Bank could base vacation entitlement upon an employee’s length of service.

The Court of Appeal ultimately quashed the Industrial Tribunal decision, noting that while the latter had been asked to make a determination on one question, its president “went on to determine something that was not before him”, and “enlarged the issue”.

“There was no reason for him to determine the interpretation of a week in the Employment Act; Article 25 is very clear. Why the president decided to go to the Employment Act and determine what a week is, we don’t know,” said Court of Appeal president, Anita Allen.