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A victory over injustice

Pernell Grant’s victory in his four year quest for justice in his case of discrimination against Apex Limited is not only a story of one man’s courage and perseverance, but also highlights how Bermudians continue to be discriminated against even in the 21st century.

This sadly is not a story in isolation. During CURB’s presentations/workshops/forums over the past six years we have heard other construction workers/electricians tell us of similar experiences. Historically many Bermudian workers received overtime pay. However, since the introduction of the Employment Act 2000, an Act introduced to protect the employee, the right to overtime pay can be waived by an employee signing off on a letter (produced by their employer) that they will instead receive straight time pay. Initially this ability to waive overtime pay was not in the original drafts of the Act, but received so much pushback by the local business community, in particular the construction industry, that a compromise was reached and the ability to waive overtime pay was inserted. I recall two construction workers telling those present at a forum that they were now earning less than they were before 2000, and that they were pressured/coerced to sign away their overtime pay.

The result … Bermudians are hired, but when they refuse to waive their rights to overtime pay they are only allowed to work an eight-hour day and then sent home. The fact that there is specific terminology “Black faces in the hole” in and of itself indicates this is a frequent occurrence and speaks to the reality that employers have been using this strategy to appease the Immigration Department. The foreign workers on the construction site have signed the letter waiving their rights and consequently they are predominantly the ones that stay on the job site working longer hours or weekends. This is not to blame the foreign workers, they too are being used by the system and many of them are here to earn money to send home to their families.

Mr Grant states he was denied the opportunity to work overtime and when he objected he suffered reprisals. For many black Bermudians it seems that rights hard fought for are being taken away, and this resonates all too clearly with past injustices.

The Board accepted the discrimination existent in Mr Grant’s statement: “As a Bermudian we had no chance of promotion, there is no opportunity for training and coaching by the form carpenters. I believe they are afraid of Bermudians learning the job then there will be no need to renew their contracts. I could do the job if trained.”

So why was the issue of overtime pay not accepted by the Board? The Board stated that while they “appreciated the whole of the case”, they could not accept Mr Grant’s complaints in respect of overtime pay. I suspect that although the Board saw the unfairness that could arise from the policy, the Board was unable to rule in Mr Grant’s favour because their hands were tied; as the option to waive overtime pay is contained in Employment Act 2000, which protected the employer.

Additionally, the Board pointed out that other Bermudians on the site had signed away their right to overtime pay, however Mr Grant had refused to sign off on the letter which would have denied him the 1.5 times base wage for work beyond 40 hours, which the Board said was his right, but “is not a basis for complaint under the Human Rights Act 1981”.

Don’t get me wrong, the Employment Act 2000 is a very important piece of legislation and does provide many protections for the worker, but how is it that an Act, brought in to protect the employee, could have this devastating effect on Bermudian workers?

As with any legislation, it is usually put in place with all the best intentions, but as it plays out we discover it has negative impacts that were not foreseen. This is why every piece of legislation that is passed in Bermuda should go through a legally mandated Equality Impact Assessment. If the Employment Act 2000 had gone through such a review, the policy of having workers waive their rights to overtime pay would not have been allowed, because it would have been seen as a way to discriminate against Bermudians, particularly in the construction industry, the majority of whom are black.

A review of the Employment Act 2000 is long overdue and I think Mr Grant’s case will highlight to our legislators the need to bring it back to the table for revision.

Lynne Winfield is the former chairwoman of Citizens Uprooting Racism in Bermuda (Curb).

Lynne Winfield

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Published February 14, 2012 at 1:00 am (Updated February 14, 2012 at 6:36 am)

A victory over injustice

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