New Employment Amendment (No2) Act: Commence June 1st 2021

As announced in November 2020, Bermuda’s Labour Code, which consists of the Trade Union and Labour Relations (Consolidation) Act 2021 and the Employment Amendment (No2) Act 2021, will come into force on 1 June 2021.

It will bring Bermuda in line with international best practices by strengthening the rights and obligations of employers and employees in Bermuda’s labour force, modernising and clarifying areas of the existing legislation, and revising the labour dispute mechanisms in Bermuda.

The public will recall that the Trade Union and Labour Relations (Consolidation) Act 2021 is a consolidation of:

• The Trade Union Act 1965;
• The Labour Relations Act 1975; and
• The Labour Disputes Act 1992.
One of the more significant changes in this comprehensive and ground-breaking legislation is that the ten Tribunals and Boards of Inquiries will be streamlined and consolidated across all labour and employment legislation into one, known as the Employment and Labour Relations Tribunal.
This Tribunal will manage all employment complaints and labour related disputes and is a significant improvement in the current state of affairs.

Some of the significant amendments to the Employment Act 2000 include:

1. Restricting Probationary Periods
2. Allowing Ante-natal Care before completion of one year of employment.
3. Extending Bereavement Leave to Grandparents and Grandchildren. .
4. Mandating timely Payment upon Termination
5. Clarifying Independent Contractor to protect an employee’s rights
6. Ensuring Meal Breaks throughout the workday; and
7. Mandating workplace policies against Bullying and Sexual Harassment.

I consider the mandating of policies against Bullying and Sexual Harassment in the workplace as one of the major additions to the Employment Act 2000. It requires all employers to have a policy statement against bullying and sexual harassment in the workplace.

This addition stemmed from 2019 when the International Labour Organization (ILO) adopted the Violence and Harassment Convention 2019 and the Violence and Harassment Recommendation 2019, which outlines and reminds member States that they are responsible for promoting a general environment of zero tolerance towards harassment of any kind.

Government has always held the protection of workers at the forefront of its agenda. In 2018, the then Minister responsible for Labour, the late Minister Walton Brown, hosted international speaker Ms Minna Salami in Bermuda to discuss sexual harassment and sensitivity towards sexual orientation within the workplace. In 2018 and 2019, the Ministry of Labour sent a tripartite delegation to the International Labour Conference in Geneva to participate in the Standard-Setting Committee on Violence and Harassment in the World of Work.

It was at this event the ILO adopted the Violence and Harassment Convention and Recommendation. In December 2020, the House of Assembly passed amendments to the Employment Act 2000, including providing a policy statement against bullying and sexual harassment in all workplaces to align with this international standard.

In Bermuda, the prevalence of bullying and sexual harassment in the workplace is alarming. Also, many bullying and sexual harassment cases are not reported out of fear of retaliation, being ostracised or blacklisted, and the distress of recounting and reliving the trauma caused by the experience.

The Human Rights Commission or HRC continues to do tremendous work in this area. In their 2018 Annual Report, the section on discrimination reported that 34% of their intakes (intakes are comprised of complaints and queries) were for workplace harassment, which is the second-highest, surpassed only by workplace discrimination. Of the active investigations into discrimination conducted by the HRC in 2018, Harassment and sexual harassment in the workplace accounted for 31% and 14%, respectively.

According to the HRC’s 2019 Annual Report, discriminatory harassment and sexual harassment in the workplace together amounted to 33% of their intakes.

This amendment to the Employment Act 2000 signifies how necessary it is for employers to ensure that employees are allowed to work in environments free of bullying and sexual harassment while also having the appropriate protocols in place to deal with such actions and demonstrating the zero-tolerance approach that all employers should have to bullying and sexual harassment in the workplace.

Effective 1 June 2021, employers will be required to have a zero-tolerance policy statement for bullying and sexual harassment in the workplace and recourse for employees for any contravention of the policy. The Ministry of Labour will assist employers by providing employers with template policy statements for their businesses if required.

All employees must be presented with the policy statement, and the employer is to help ensure employees understand it. Any employer who contravenes this requirement will be liable to a civil penalty imposed by the Labour Relations Manager or the Employment and Labour Tribunal.

Policies are an effective step to mitigate the occurrence of violence and harassment in the workplace. We must all work toward eradicating unacceptable behaviours, including bullying and sexual harassment from the world of work.  These amendments are a start, but ultimately, it is our responsibility to treat everyone fairly, with respect and dignity.
In closing, I want to remind everyone that each of us has a role to play in stopping the spread of the coronavirus.

Follow Public Health guidelines, wear a mask, practice good hand hygiene, maintain physical distance and download the WeHealth Bermuda app.

Do the research, talk with your doctor and make an informed decision about getting the COVID-19 vaccine.
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