On Friday May 22, 2020, I had the pleasure of giving a short presentation to the Living Water Community’s Ministry for Migrants and Refugees on the impact on migrant workers in Trinidad and Tobago of the COVID-19 pandemic.
COVID-19 has affected hundreds of Venezuelan migrants in Trinidad and Tobago who are employed at restaurants, bars, retail stores and other businesses which have been temporary closed as a result of the Public Health Regulations.
I was invited by the Living Water Community to give a short webinar presentation as part of their continuing ‘Know Your Rights’ campaign on some of the employment and labour issues arising from the pandemic.
Here is the main text of the presentation:
Let’s start with the basic entitlements that all workers are entitled to in Trinidad and Tobago.
The minimum wage in this country is $17.50 per hour and all persons are entitled to this.
There are typically two types of arrangements for workers:
The first is a contract OF SERVICE. This is an agreement between an employer and an employee.
The second is a contract FOR SERVICES. Here, an independent contractor, such as a self-employed person or vendor, is engaged for a fee to carry out an assignment or project.
For this presentation, we will focus on the contract of service or employer/employee relationship.
The terms and conditions of employment are contained in the employment contract. This may be written or oral. So it is important to note that even if you do not have a written contract, you still have a valid oral contract.
The Government of Trinidad and Tobago has implemented COVID-19 Public Health Regulations which sets-out that only certain types of essential businesses can be open and the manner in which they can operate.
The Government has also embarked on a ‘phased reopening’ of the economy and unfortunately many employers are still unable to open for business in the first two phases.
There are a few phrases that we have been hearing in the labour and employment world as a result of COVID-19. These are:
– Temporary layoffs or ‘furlough’; and
As a general rule, employers can validly terminate employees on the grounds of redundancy where the workers are ‘surplus’ to the operational needs of the business.
If businesses are forced to close due to COVID-19, there may certainly be surplus workers.
Employers should give you reasonable notice of this layoff. Because COVOID-19 is an unprecedented emergency, what may be considered as ‘reasonable’ may be very subjective.
There are laws that protect workers from layoffs, which allow for the payment of severance benefits, but these laws do NOT apply to:
– domestic workers;
– estate constables;
– workers with less than a year service;
– workers serving a probationary period;
– casual workers;
– most seasonal workers;
– workers employed under a fixed term contract;
– Persons employed for a specific purpose and for a specific period; and
– independent contractors.
So for these jobs, the employer does not have to pay severance benefits.
But if you are not in any of those categories, there are certain requirements that your employer must follow.
There is also the concept of a temporary layoff or ‘furlough’.
The Industrial Court of Trinidad and Tobago has recognised a temporary layoff as a valid industrial relations practice.
The temporary layoff must be for a ‘reasonable’ period of time and cannot be indefinite. Your employer should give you advance notice of how long the temporary layoff will last, but because of this unprecedented situation of COVID-19, that may be difficult to predict.
Generally a temporary layoff should not last longer than three months, except in exceptional circumstances.
You will not be paid during a temporary layoff.
Any change in salary is a variation of the contract of employment and must be effected by mutual agreement between you and your employer.
A unilateral variation of the terms and conditions of employment by your employer will not be valid unless and until you consent to it. Employers must therefore consult and obtain your agreement before implementing such a change.
You may be able to bring action to the court against such employers for breach of contract, if your salary has been reduced without your agreement or consent.
But you may want to agree to a reduction if it means that you are able to save your job, where the only other option is a layoff or furlough.
Let’s talk about health and safety.
Employers have a general duty to ensure the health, safety and welfare of all workers.
Depending on the nature and type of business, this may include the issuance of personal protective equipment, mandatory wearing of face coverings and protocols for social distancing as well as sanitisation and hygiene.
If you believe that your employer is not providing a safe working environment, you should contact a lawyer for legal advice.
Of course, if you contract the virus because of unsafe working conditions, you may be able to bring an action before the court in negligence against your employer.
Before we end, let’s talk briefly about paid leave.
Any paid leave such as vacation or sick leave is generally determined by the employment contract or may depend on the length of time you have been working at the employer.
There may also be different rules, depending on the type of business where you work.
If you have been exposed to or contract COVID-19 and are required by the law to self-isolate or to be quarantined and therefore cannot go to work, you may be entitled to receive your salary, particularly if you have medical records or orders from the Chief Medical Officer. Whether you are entitled to this will depend on your particular circumstances.
There is no specific law to guide this, but if an employer withholds a salary in these circumstances, it may be considered to be ‘a breach of good industrial relations practice’.
In closing, I just want to remind you that whatever is said here today is general information but you may need specific legal advice depending on your individual circumstances, so if you are unclear about anything, please contact a lawyer.
Remember, you must have the legal right to work in Trinidad and Tobago.And if you have any questions, please contact the Living water Community at 299 -5526.