THE EMPLOYMENT RIGHTS Act has been gradually entwined into the working equation of most employers in Barbados. However, what remains a major point of concern for employers and employees is the fact that the act specifically governs the employment relationship and therefore is applicable to employees and employers.
Thus, independent contractors are not covered under this legislation.
The act defines an employee as “an individual who has entered into or works under, or, where the employment has ended, worked under a contract of employment.”
The act further identifies factors to be taken into consideration in determining the existence of a contract of employment; these are found in the First Schedule (Section 3). These points of reference can aid in determining whether a worker can be categorised as an employee or a contractor. Some factors to be considered: There is an obligation on the part of the employee to give personal and exclusive service; the work is done according to the instructions of the employer, and the manner in which the work is carried out is subject to the control and direction of the employer; the work is carried out within fixed hours or at a workplace or workplaces specified or agreed by the employer; the employee is subject to the procedures of the business for addressing grievances and disciplinary matters.
Please note, however, the act states that the list is not exhaustive and the factors outlined are elements to be considered in determining the nature of the contract.
Despite the aforementioned schedule, grey areas remain for employers and employees. They often arise as a result of how the contract of employment is drawn.
Both parties to the relationship should be reminded that common law principles have generally been adopted in an effort to define an independent contractor. These principles focus on the level of control an employer has over a service or product, meaning, whether the employer actually defines what is being done and how it will be accomplished.
Other considerations when identifying someone as an independent contractor may include: if the worker supplies his or her own equipment, materials and tools; if all necessary materials are not supplied by the employer; if the worker can be discharged at any time and can choose whether or not to come to work without fear of losing employment; if the worker controls the hours of employment thus indicating they are acting as an independent contractor; whether the work is temporary or permanent.
Again, the nature of the work will help define the relationship. When work is considered integral to the business, it is more likely that the person is an employee. On the other hand, work that is temporary and non-integral may imply independent contractor status.
As mentioned in Schedule 1 in the ERA, with reference to the factors to be considered in determining the existence of a contract of employment, “ . . . the factors outlined are all elements in a balancing exercise to determine the nature of the contract”.
No one factor, therefore, is by itself conclusive, and the weight to be attached to any one of the factors is a matter for adjudication.
In the event that a case does have to be adjudicated by the tribunal, the relationship and its operation will be evaluated, along with any written agreement.
All contributing factors will be used to determine the category under which the worker will fall.
Employers are reminded that we at the Barbados Employers’ Confederation can assist and/or offer full services for contract and/or agreement compilation as well as human resources consultancy services.
We implore people who are unsure when writing contracts, to contact us or any other professional who may be able to guide you accordingly and aid in clarifying the grey areas.
