Developments For HR Practitioners To Watch Out For This Year
First Published in The Bermuda Chamber Of Commerce Newsletter (Chamber Insider), January 2022
Last year was a busy one in the world of labour and immigration law. A raft of changes were made to the Employment Act 2000, including new rights and obligations in relation to bullying and harassment policies and the use of probation periods. Wholesale changes to labour law were also brought in, including amendments to the certification and de-certification processes, and the creation of a new, amalgamated Employment and Labour Relations Tribunal. As for immigration law, December saw the introduction of new Permanent Resident’s Certificate rights for certain long-term residents.
Although unlikely to see the same level of activity as 2021, there are a number of potential developments for HR practitioners to watch out for this year, as discussed below.
Minimum/living wage
A Wage Commission was established in 2019 to research and make recommendations on a minimum hourly wage, which may in time result in a ‘living wage’. In May last year, the Minister of Labour laid before Parliament the Commission’s first report, setting out three options for a minimum wage ranging from $13.19 to $17.28 per hour.
The Government has undertaken to review those recommendations with the aim of tabling a minimum wage Bill. That may happen later this year and when it does it will be interesting to understand how the law will apply in practice.
Guidance on independent contractors
One of last year’s changes to the Employment Act 2000 was the introduction of a power for the Manager of Labour Relations to issue guidance as to the question of whether a relationship more closely resembles that of an employee than an independent contractor. This is an important issue, as employees benefit from the protections and entitlements set out in the Employment Act 2000, whereas independent contractors do not.
This is obviously an issue on the Government’s radar. In November, the Minister of Labour highlighted this new power as part of a statement on reports of perceived unfair practices in the labour market. He referred to concerns voiced by workers that employers are seeking to take advantage of the current economic climate by offering contracts which do not provide for the benefits to which employees are entitled by law.
The boundary between employee and self-employed status has been explored at length in recent years in other jurisdictions. In the UK for example, there has been a string of successful claims for statutory employment rights by ‘gig economy’ workers (such as taxi drivers, couriers and food deliverers), despite their contractual agreements labelling them as independent contractors. To date, this has not been a fertile area of litigation in Bermuda, but government guidance on this issue may be the starting point for future developments.
Further changes to the Employment Act 2000
In a recent tweet, the Minister of Labour stated that “the Government will continue to expand the rights of workers in Bermuda throughout 2022”. While no specific details of further legislative developments have been announced, it is worth noting that in 2019 the Minister’s predecessor announced a raft of changes under consideration as part of the intended modernisation of labour law. Many of these changes have now come into force, but those still outstanding include:
- Employment protections for persons currently designated as non-employees including casual, temporary and part-time workers;
- Protection for employees coerced into working unpaid overtime;
- Legislation on the receipt of tips and gratuities; and
- Managing expectations regarding out of hours contact for employees.
New law in any of these areas would represent a significant and potentially controversial development, but whether they form part of Government’s agenda this year remains to be seen.
Changes to Human Rights law
The One Bermuda Alliance table a Bill in the House of Assembly late last year which would have wide-ranging implications for equalities and human rights law. Proposals included the creation of an Equality Council, responsible for promoting equality and equal pay in the workforce, and measures aimed at promoting equality of race and gender in Government boards and committees.
The Bill would also extend to the Employment and Labour Relations Tribunal to ability to determine workplace discrimination claims and exercise other powers currently held by the Human Rights Commission, including rights to make certain costs orders against litigants. The proposed legislation would also expand the remedies for discrimination, most notably by introducing new civil penalties of up to $100,000 for large employers.
As an Opposition Bill, it is unlikely these proposals will come to pass but it will be interesting to see whether any make their way into Government policy.
Immigration
The Ministry of Labour’s 2021 year-end review stated Government’s belief that the 12-month ‘Work From Bermuda’ residential certificate policy has been a success, with over 200 successful applicants now on-island. It is expected this policy will remain in place for the time being.
In other immigration developments, the Ministry has recently announced that prohibitions and restrictions on new work permits in certain categories have been extended to the end of July 2022. The list of jobs in the ‘closed category’, for which there is a moratorium on new work permits, has been slightly expanded. We can also expect the Department of Immigration’s increased scrutiny of work permit applications to continue, given the economic conditions and the Government’s stated desire to improve the job prospects of Bermudians.
Please reach out to a member of the team if you would like to discuss the issues addressed in this article.
