Caswell Franklyn’s Unraveling of the Shop’s Act: Did the Barbados Employers’ Confederation Lead Its Members Astray?

Former Senator and esteemed Employment Law Specialist, Caswell Franklyn, who serves as the General Secretary of the Unity Workers Union, recently sparked controversy by publicly challenging the Barbados Employers’ Confederation (BEC) regarding their interpretation of the Shop's Act. Franklyn's critique was prompted by his appearance on the Marcia Weekes Show, where he discussed the Act and received feedback from concerned individuals about an article published by the BEC.

The article, which purportedly offered guidance to its members, stated that Supervisors and Managers should not be considered shop assistants under the Act, effectively exempting them from its provisions. This interpretation, according to Franklyn, directly contradicted the law. He cited Section 2 of the Shop’s Act, which explicitly defines a shop assistant as any individual involved in shop operations related to sales or business activities, including clerical work.

Arguing passionately, Franklyn contended that even managers within a shop should be considered shop assistants, thus entitling them to overtime pay as stipulated in the legislation. He brought attention to instances where companies exploited this interpretation to sidestep paying supervisors and managers the overtime rates mandated by law, such as double time for work on bank holidays and time and a half for overtime.

Moreover, Franklyn expressed disdain towards certain unnamed restaurants for engaging in unlawful practices, including scheduling employees to work late into the night and then requiring them to report back for duty early the next morning. Citing Section 6(2)(b) of the Shop’s Act, which mandates a minimum 12-hour interval between shifts for shop assistants, Franklyn denounced these violations. He called upon the government to intervene and enforce existing labor laws to curb such exploitative practices.

Section 6 of the Shop’s Act stands as a pivotal provision, explicitly exempting only members of the employer's direct family from its regulatory purview. This clause, which deals comprehensively with matters such as hours of work and overtime, underscores the Act's commitment to preserving familial dynamics within business establishments. However, adherence to the Act's stipulations is not merely a suggestion but a legal imperative, as failure to comply can result in significant penalties. 

Upon closer examination, it becomes apparent that the Barbados Employers’ Confederation (BEC) may have fundamentally misinterpreted the Shop’s Act. The Act, which replaced the old Shops Act with the new Shop’s Act 2015-30, was specifically designed to enhance regulations governing various aspects of shop operations, including opening and closing hours, employment terms, and safety standards.

The BEC also suggested that for workers outside the category of “shop assistants,” overtime eligibility and applicable rates should be determined based on collective agreements. However, it appears that the BEC may have overlooked the Act's definition of a shop assistant. As previously indicated, a shop assistant encompasses any individual involved, directly or indirectly, in shop operations, excluding members of the occupier's family. This broad definition covers various roles within a shop's operations, whether involvement is immediate or indirect. The new Act is now broader in scope and inclusivity. 

In the context of this definition, "directly or indirectly" refers to the manner in which a person is involved in specified activities within a shop's operations. Direct involvement includes tasks directly related to sales or the shop's trade, such as assisting customers or managing inventory. On the other hand, indirect involvement encompasses roles that support shop operations without direct interaction with customers, such as handling financial records or maintenance.

For example, direct involvement may include a salesperson assisting customers in choosing products or a cashier processing payments. In contrast, indirect involvement may involve an accountant handling financial records or a janitor responsible for maintenance within the shop premises.

Thus, it is evident that the Shop’s Act extends its coverage beyond individuals with the job title of “shop assistant” to encompass all employees involved in various capacities within shop operations.

Section 14 of the Act, specifically addressing the employment of shop assistants at night, imposes stringent requirements on shop operators. Notably, before employing shop assistants or employees such as laundry workers during nighttime hours, the occupier must obtain a certificate of approval from the Chief Labour Officer (CLO). 

This provision reflects the Act's commitment to safeguarding the well-being and security of shop employees, mandating that adequate transportation arrangements and security measures be in place for those working during nocturnal hours. Thus, the Shops Act not only delineates the boundaries of familial exemption but also underscores the necessity of regulatory compliance to ensure the welfare and safety of all shop assistants.

In conclusion, the Shop’s Act provides comprehensive coverage for shop employees, encompassing a wide range of roles within shop operations. The BEC's interpretation, however, seems to overlook this inclusivity, potentially leading to misunderstandings and misapplications of labor regulations. It is imperative for stakeholders to align their understanding of the Act with its intended scope to ensure fair treatment and compliance with the law.