Friday, October 8, 2021
Union chief fears COVID testing ‘setting bad precedent’
Making staff pay compromise with Brookfield policies
Ferguson: Multinationals cannot ‘disregard the law’
By NEIL HARTNELL
Tribune Business Editor
A trade union leader yesterday urged Atlantis’ owner to “obey the laws of The Bahamas” relating to COVID-19 testing, and warned the present situation “is setting a bad precedent”.
Obie Ferguson, the Trades Union Congress (TUC) president, told Tribune Business that the laws of a sovereign nation such as The Bahamas must take precedence over any worldwide policy implemented by Brookfield Asset Management and other multinational conglomerates with businesses and operations in this nation.
He added that the situation at Atlantis, involving the resort’s policy that unvaccinated staff must pay for their weekly COVID-19 tests, could encourage other major employers to “disregard the law” and follow suit - something he is “very concerned” about.
Mr Ferguson spoke after the Prime Minister said on Wednesday that he had asked Atlantis to reconsider this policy amid concerns from both the private sector and labour movement that it violates the Health and Safety at Work Act’s section nine, which seemingly stipulates that all expenses associated with maintaining a healthy workplace be paid for by the employer.
This, in essence, means such costs - including weekly COVID-19 testing - should not be passed on to employees. However, Mr Davis said he was informed by Atlantis executives that the unvaccinated worker testing policy was effectively a compromise devised by the resort given that Brookfield has mandated that all its worldwide employees be inoculated to continue in their jobs.
“She appreciates the concern we have about mandatory vaccination,” Mr Davis said of his meeting with Atlantis president, Audrey Oswell, “and she reached a compromise with her corporate office that at least if they were to ask persons who wanted to continue to work with Atlantis that they pay for their testing that might encourage them to get vaccinated
The situation highlights how a multinational investor’s own worldwide corporate policies may clash with, and run afoul of, Bahamian law. The Prime Minister’s comments indicate the Government has elected not to take a harsh line with Atlantis/Brookfield, which alongside Baha Mar is The Bahamas’ largest private sector employer and is playing a key role in the post-COVID recovery.
Mr Davis indicated that the Government is hoping its ‘free’ COVID testing plan, which has yet to be defined or rolled out, will help alleviate the Atlantis situation. However, no such testing is truly ‘free’ as it will simply mean that the financial burden is switched from those currently paying to the taxpayer.
And the incident is also providing an early test of the Government’s memorandum of understanding (MoU) with the two umbrella union bodies, and its labour-friendly pledges. However, Mr Ferguson, one of the MoU’s key signatories, told this newspaper: “I can’t say what the Government should or shouldn’t do.
“What I can say is that these multinational companies must be made to follow the laws of The Bahamas. The Bahamas’ laws must take precedence. Any multinational companies coming to The Bahamas must be guided and governed by the local laws.
“Unless changed or amended, those laws must be applicable to all employers, whether domestic or international. Whether you are trans-national or multinational, it doesn’t matter. The laws of the land must be the law that governs the contract between employer and employee,” he continued.
“It’s important we have a working relationship, but you cannot cherry-pick. Either the laws apply and are recognised, or what you’ll be doing is setting a bad precedent for employers that they can disregard the law of the land. I’m very concerned about that.”
While The Bahamas is heavily reliant on foreign direct investment (FDI) in its tourism and other major industries, the TUC president said the rights of investors and their desire to maximise profits must be balanced with the constitutional rights of Bahamians.
“Equally important is for them to have respect for, and be bound by, our laws,” Mr Ferguson added. “I do understand multinationals have policies, and some policies conflict with the laws of countries in which they do business.
“But every contract I have reviewed, be it insurance or whatever contract, notwithstanding what is in the contract is governed by the laws of your country. The Health and Safety at Work Act’s section nine governs how you behave in a situation of this nature. You cannot arbitrarily introduce a policy that contravenes it.”
Atlantis and other employers have also argued that they have little choice but to make unvaccinated staff pay for their weekly COVID tests as they have a responsibility to ensure a safe environment for guests, customers and staff, and simply cannot carry the financial burden any longer given the relatively strong vaccine hesitancy in The Bahamas.
Making unvaccinated staff pay for their weekly tests is also being viewed as an incentive for them to become inoculated, but trade unionists are countering that such a policy is illegal because the Health and Safety at Work Act’s section nine forbids Bahamian employers from imposing any financial “levy” on staff to ensure they comply with this law’s stipulations.
Labour representatives have also argued that making unvaccinated staff pay for their weekly COVID tests would amount to an illegal arbitrary, unilateral variation of employee working terms and conditions, while also potentially pushing minimum wage workers below the legal take-home limit if they have to use their salaries to cover testing costs.
Mr Ferguson reiterated: “We have a constitution, we are sovereign. Yes, we are a tourism-based economy and we want to work with investors to see that their investment is secured and they get maximum returns, but equally important must be the requirement to protect the citizens of our country.
“The first obligation of a country is to protect its citizens. We have laws in this country we have to follow. Bahamians are required to follow the law of the land. We can’t allow companies to come in and say they have a worldwide policy. Major organisations must abide by the rule of law, and evading it is a serious matter.”