By *Jomo Sanga Thomas
(“Plain Talk”, July 31, 2020)
Did Finance Minister Camillo Gonsalves misstate the law when he said neither Sandals Resort International nor the government owes the workers who were employed at Buccament Resort? The law as outlined in the Protection of Employment Act and the National Insurance Service Act contradicts what a smiling Camillo Gonsalves told a nation last week.
However, Gonsalves correctly stated the law when he declared that the government could properly acquire private land for a stated public purpose and turn it over to a private developer. As early as 1969, in a case Williams v Gov’t of St. Lucia, the Privy Council ruled that “the expression ‘the development of tourism’ does state a purpose which is a public purpose”.
Announcing the arrival of Beaches Sandals, Camillo Gonsalves declared, “legally Sandals doesn’t owe them (workers) any obligations, nor does the state. Legally, their rights still exist against Harlequin, because Harlequin is the one who hasn’t paid them and there’s a process by which the bankruptcy trustee has to pay out debtors and creditors”.
The law of our country does not support this view. The Government and or Sandals are responsible for the money and benefits owed to the workers.
Section 20 of the Protections of Employment Act captioned Sale of business not to affect right of employee says:
(1) The change of ownership by sale or other disposition of a business or any part thereof shall not affect the rights accruing or accrued to an employee at the time of sale or other disposition and the buyer and seller shall be jointly and severally responsible for such rights.
Section 21 captioned “Winding Up” at 21(3) says:
Where an employer’s business is wound up or a receiver has been appointed, an employee or any person legally entitled to claim on his behalf payment to which he is entitled shall have priority over all other creditors including the Crown for the following sums—
(a) wages, overtime pay, commissions and other forms of remuneration relating to work performed during the twenty-six weeks preceding the date of the institution of winding up proceedings or the appointment of a receiver?
(b) holiday pay that is owing as a result of work performed… ?
(d) severance pay, compensation for unfair dismissal and other payments that are owing in respect of the termination of employment.
Yet Camillo Gonsalves, who proudly declared that the government acquired the property and turned it over to Sandals, says it will pay white foreign property owners but have no responsibility to pay Vincentian workers. The law gives priority to our workers; Camillo and his father prefer to pay white foreign investors.
Clause 37 of National Insurance Service Act captioned Offences and penalties states: (1) Any person who fails to pay at or within the time prescribed for the purpose any contribution which he is liable to pay under this act, is guilty of an offence and is liable to a fine of ten thousand dollars.
Ames and his company refused to pay Vincentian workers salary for months. They also refused to turn over to the NIS deducted contributions from workers. The government and its agencies, NIS and the Labour Department refused or failed to protect the workers. Eventually, Ames spirited out of the country and escaped criminal prosecution.
Clause 23 of the regulation that accompanies the National Insurance Service Act captioned “Succession to a Business” states: This regulation applies where there has been a change in the employer from whom an employed person receives wages in respect of his employment in any trade, business, concern or undertaking or in connection with any property, or from whom that person receives any annuity other than a pension.
(2) Where this regulation applies, in relation to any matter arising after a change of employer, the employer after the change shall be liable to do anything which the employer before the change would have been liable to do under these Regulations if the change had not taken place.
(3) The employer after the change shall not be liable for the payment of any contributions which were deductible from wages paid to an employed person before the change, unless such contributions were also deductible from wages paid to the employed persons after the change took place, or of any corresponding employer’s contribution.
What then is the basis for Camillo Gonsalves’ claim that neither Sandals nor Government owes poor Vincentian workers?
Sec 41 of the National Insurance Service Act Captioned Proceedings for benefits lost by employer’s default states:
(1) Where an employer has failed or neglected to pay any contribution which he is liable to pay in respect of or on behalf of any insured person, and by reason of such failure or neglect such person or any other person becomes disentitled to any benefit, or entitled to a benefit on a lower scale, the Director may, on being satisfied that the contribution should have been paid by the employer, pay to the person or the other person benefit at the rate to which he would have been entitled if the failure or neglect had not occurred and the Board shall be entitled to recover from the employer as a civil debt a sum equal to the amount of benefit so paid or the contributions not paid whichever be the greater.
The afore-mentioned clauses in the Protection of Employment Act and the National Insurance Service Act are valid and binding. Our Minister of Finance, a former Minister of Labour, cannot be unaware of these laws. We would hate to believe he intends to pull the wool over the eyes of the exploited and long-suffering former employees of Buccament Bay Resort.
Because the government took over the sole asset (Buccament Bay Resort) which was owned by Ames’ company Harlequin, we are of the view that Camillo Gonsalves improperly and incorrectly stated that neither Sandals nor the state owes the workers any obligations.
Once the Government assumed ownership of what was owned by Harlequin and Ames, the laws clearly say that the company that takes over another company is responsible for the salary, benefits and severance of the previous owner. Why then would Camillo Gonsalves, a former Labour minister, claim that neither the government nor Sandals has an obligation to pay the workers?
On whose side is this “labour” government working, the workers of the country or foreign investors? The labouring masses must look beyond the rhetoric of our labour government for real answers.
*Jomo Sanga Thomas is a lawyer, journalist, social commentator and a former Speaker of the House of Assembly in St. Vincent and the Grenadines.
The views expressed herein are those of the writer and do not necessarily represent the opinions or editorial position of iWitness News. Opinion pieces can be submitted to [email protected].