No. 4 Of 2010 VIRGIN ISLANDS LABOUR CODE, 2010 ARRANGEMENT .

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No. 4of 2010VIRGIN ISLANDSLABOUR CODE, 2010ARRANGEMENT OF SECTIONSSectionPRELIMINARY1.Short title and commencement.2.National policy underlying the Code.3.Interpretation.4.Application of the Code.5.Enforcement against Government as an employer.6.Establishment of working conditions above minimum standards in the Code.PART IADMINISTRATION7.Principles of administration.8.Labour Commissioner.9.Duties and responsibilities of Commissioner.10.Institution of proceedings.11.Commissioner to have powers of inspector.12.Designation of labour inspectors.13.Duties and responsibilities of inspectors.14.Powers of inspectors.15.Action of inspector in case of threat to safety or health.16.Inspection of premises where domestic servants are employed.17.Notification of presence.18.Limitations and restrictions on inspectors.19.Records and returns.20.Obligations of employers.21.Offences and penalties in relation to Commissioner and inspectors.22.Liability of employer for agent, etc.23.Victimisation.24.Annual reports.25.Limitation of liability.1

PART IISETTLEMENT OF DISPUTES26.Procedure for the settlement of disputes.27.Action by Minister.28.Referral to Tribunal or Board of Inquiry.29.Establishment of Arbitration Tribunal and Appointment of Members.30.Findings of Tribunal binding.31.Appointment of Board of Inquiry.32.Powers of Tribunal and Board to summon witnesses and administer oaths.33.Summons of Tribunal and Board to be obeyed.34.Failure to obey summons of Tribunal or Board.35.Tribunal and Board to regulate own proceedings.36.Arbitration Ordinance not to apply.PART IIIADVISORY COMMITTEES37.Tripartite consultation.38.Advisory Committees.39.Reports of Committee.40.Orders.41.Variation of Orders.PART IVBASIC CONDITIONS OF EMPLOYMENT42.Public policy.43.Conformity with the Code generally.44.Forms of employment contracts.45.Statement of working conditions.46.Probationary period.47.Rest periods and normal hours of work.48.Meal intervals.49.Premium pay.50.Limitation on overtime.51.Payment where employee stopped or prevented from working full day orshift.52.Pay for period of stand-by or being on call.2

53.Payment in respect of public holidays.54.Payment for work on public holidays.55.Form of wages.56.Wages to be paid to employee.57.Deductions.58.Statement of deductions.59.Limitation on attachment or seizure of wages.60.Gratuity.61.Periods and place of wage payments.62.Employee not to be required or coerced regarding manner of spendingwages, or to use stores or services.63.Employees’ leave rights generally.64.Vacation leave.65.Vacation leave pay.66.When vacation leave pay to be paid.67.Public holidays, etc. not to affect vacation leave.68.Mutual agreement affecting vacation leave.69.Vacation leave pay upon termination of employment.70.Sick leave.71.Sick leave for periodic employees.72.Sick leave pay and social security benefit.73.Entitlement to maternity and paternity leave.74.Additional period of leave.75.Payment of maternity benefits.76.Employee not to be given notice of dismissal while on maternity leave.77.Special leave for jury service and other purposes.78.Penalties and employee’s right to recover.79.Penalty for not paying minimum basic wage rate.80.Penalties where person other than employer may be violator.PART VTERMINATION OF EMPLOYMENT, DISCIPLINARY ACTION,AND CONTINUITY OF EMPLOYMENT81.Limitation on termination of employment by employer.82.Meaning of unfair dismissal.83.Constructive dismissal.84.Appeals against unfair dismissal.85.Burden of proof.86.Remedies for unfair dismissal.87.Retirement of employee entitled to age benefit under Social SecurityOrdinance.88.Termination of employment contract within probationary period and shortterm contracts.3

89.Termination of employment contract with notice.90.Notice periods.91.Payment in lieu of notice.92.Recovery of remuneration and notice pay.93.Winding up of employer’s business, etc.94.Death of employer.95.Certificate of employment.96.Continuity of employment.97.Rights of employees on change of ownership.98.Effect of sale of business.99.Commissioner to be informed of intended multiple terminations for reasonsof redundancy.100.Employee’s notice of termination.101.Summary dismissal for serious misconduct.102.Disciplinary action.103.Termination for repeated misconduct, breach of contract orunsatisfactory performance.PART VISEVERANCE PAYMENTS AND RETIREMENT BENEFITS104.Right of severance pay.105.Methods of calculation of severance pay.106.Entitlement to severance pay not to be affected by other payments.107.Severance pay, when payable; temporary termination; payment of interest.108.Reduction in pay because of redundancy.109.Limitation on severance pay.110.Recovery of severance pay.111.Retirements benefits.PART VIIEQUALITY OF TREATMENT IN finition of “discrimination”.115.Prohibition of discrimination.116.Bona fide occupational qualifications.117.Preference to Virgin Islander or Belonger.118.Special positive action.119.Sexual harassment.120.Equal remuneration.121.Partnerships.4

122.Employer and employee organisations.123.Inducement to discriminate.124.Burden of proof.125.Proof of exceptions.126.Offences and penalties under this Part.127.Remedies.PART VIIIPROTECTION OF CHILDREN AND YOUNG PERSONS128.Prohibition of employment of children.129.Liability of parent or guardian.130.Restrictions on employment of young persons.131.Registers to be kept.132.Government’s vacation work programme for students.133.False representation as to age.PART IXHEALTH, SAFETY AND WELFARE134.Interpretation.135.Duties of employers.136.Registration of workplaces.137.Risk assessment.138.Safety and health policy and emergency plan.139.Health.140.Safety.141.Welfare.142.Special protective measures.143.Protective clothing and devices.144.Hazardous chemicals.145.Special protection for pregnant employees.146.Employment of young persons on dangerous machines.147.Disposal of waste.148.Noise and vibration.149.Obligations of persons employed.150.Prohibition of deduction of wages.151.Regulations and Orders.152.Safety and health representatives.153.Joint workplace safety and health committees.154.Accident and safety programme.155.Special powers of inspector.156.Reports by employer.5

157.Duties of owner.158.Exemptions and extensions.159. Non-exclusivity of provisions of this Part.160.Offences161.Multiple offences.162.Penalties for specific offences.163.Penalties for offences for which no express penalty is provided.164.Power of court to order cause of contravention to be remedied.165.Penalty for person actually committing offence for which operatoris liable.166.Procedure where inspector or operator believes the offender to beother than operator.167.Records as evidence.168.Other Remedies.PART XWORK PERMITS169.Interpretation.170.Prohibition against employment.171.Applications for work permit and interim work permit.172.Application.173.Action upon application for work permit.174.Penalty applicable to employees or self-employed persons.175.Penalty applicable to employers.176.False statements in application, etc.177.Fees.178.Government policy on international migration for employment.179.Provisions relating to termination of employment.PART XIRECOGNITION OF BARGAINING AGENTSFOR BARGAINING UNITS180.Regulations.PART XIIMISCELLANEOUS181.Limitation upon referring dispute or complaint.182.Limitation upon prosecution.183.Labour clauses in public contracts.6

184.Conflict between the Code and any other law.185.Residual Penalty.186.Regulations.187.Repeals and savings.188.Consequential Amendment.SCHEDULE7

No. 4 of 2010Labour Code, 2010VirginIslandsI ASSENTDAVID PEAREYGovernor12th July, 2010VIRGIN ISLANDSNo. 4 of 2010An Act to provide for the improvement of the administration of labour, takinginto account applicable international standards, prescribing minimumconditions of employment, a system for labour administration, settlement ofdisputes and observance of labour laws generally, and to provide for therepeal of the Labour Ordinance (Cap. 292), the Labour Code Ordinance (Cap.293) and the Trade Disputes (Arbitration and Inquiry) Act (Cap. 299) and forother connected matters.[Gazetted 16th July, 2010]ENACTED by the Legislature of the Virgin Islands as follows:PRELIMINARYShort title andcommencement.1.This Act (referred to in this Act as the “Code”) may be cited asthe Labour Code 2010 and shall come into force on a date the Governor may,by Proclamation published in the Gazette, appoint.National policyunderlying theCode.2.The following expressions of national policy shall be used ininterpreting the Code:(a)the increase in production and in purchasingpower which will result from the application ofparagraphs (b) to (s) will benefit the workers,the employers, the consumers and finally willadvance the overall socio-economic level of theVirgin Islands;8

(b)the legitimate employment interests of VirginIslanders and Belongers shall be paramount andshall override all other competing expression onnational policy in this section;(c)there shall be the preservation of social balance,national cultural heritage, values and norms ofthe Virgin Islands;(d)standards for a competitive economy andefficient labour market shall be recognised andpromoted, with due regard to basic minimumconditions of work, and respect for thefundamental principles of human rights andsocial justice;(e)standards and conditions of work shall betransparent in their implementation;(f)there shall be a fair and equitable balance ofrights, interests and obligations betweenemployers on the one hand and employees onthe other t, employers and employees andsocial dialogue shall be promoted in the systemof labour administration;(h)fundamental international principles andstandards at work, adapted to the circumstancesof the Virgin Islands, shall be respected andpromoted;(i)labour enactments shall be practical in terms ofregulatory and administrative feasibility;(j)there shall be an easily accessible system inplace for the expeditious, fair and inexpensivesettlement of disputes between employers andemployees;(k)systems, procedures and institutionalframework for the effective implementation,monitoring and enforcement of the provisions of9

the Code and the system of labouradministration shall be given due attention;(l)the interests of employees, employers and thepublic shall be taken into account and theirrepresentative organisations duly consulted inconnection with the formulation and periodicrevision of the law relating to labour and inconnection with the resolution of issues arisingin the enforcement of those laws;(m)employers and employees shall be free, throughthe processes of collective bargaining orotherwise, to agree on wages and otherconditions of employment, provided theagreements do not infringe the minimumconditions prescribed in the Code;(n)employers and employees shall be free toassociate with one another, or with theirrepresentative associations, in order to improvetheir economic situation, without interference,restraint or coercion;(o)employees shall enjoy decent work inaccordance with the standards of theInternational Labour Organisation and suitableto the circumstances of the Virgin Islands;(p)social policy for the provision of retirementbenefits of employees shall be promoted, takinginto consideration the need for uniformity ofstandards, the need to stabilise industrialrelations practices, and the need for transitionalarrangements;(q)the employment conditions of employees shallbe those which serve to preserve their health,safety and welfare and to prevent industrialaccidents;(r)there shall be non-discrimination and equalopportunity in employment and occupation; and(s)employers shall aim to maximise profits bycompeting on the basis of managerial efficiency10

and use of entrepreneurial skills rather than byseeking to reduce or otherwise derogate fromtheir employees’ working conditions.3.In this Code, unless the context otherwise requires,Interpretation.“bargaining agent” means a trade union that acts on behalf of employees forpurposes of collective bargaining;“bargaining unit” means a group of employees on whose behalf collectivebargaining may take place;“basic wage” means that part of an employee’s remuneration for serviceswhich is payable in money for his or her normal hours of work;“Belonger” means a person who belongs to the Virgin Islands as defined in U.K.S.I. 2007No. 1678.section 2(2) of the Virgin Islands Constitution Order, 2007;“child” means a person under the age of sixteen years;“collective agreement” means any contract between one or more employers ortheir representatives and two or more employees or theirrepresentatives relating to the terms and conditions of employment orany other matter of mutual interest;“commercial establishment” includes supermarkets, shops and other similarestablishments;“commission agent” means an agent or employee who is remunerated bycommission;“Commissioner” means the person for the time being appointed to, or actingin, the post of Labour Commissioner pursuant to section 8;“conditions of employment” refers to the elements of hire and termination ofemployment, the remuneration, hours, duties and the surroundingterms of employment and to all other factors directly related to theemployment arrangement;“confinement” means labour resulting in the birth of a living child or labour,after not less than twenty-eight weeks of pregnancy, resulting in thebirth of a child, whether alive or dead;“continuous employment”, for the purposes of section 73(1) and Part VII,means an uninterrupted period of employment with an employer, andany predecessor-employer, provided that any break in employment not11

exceeding six months shall not be deemed to break continuity ofemployment, but in any case, the duration of breaks shall not count asemployment for the purposes of calculating entitlements to severancepay or retirement benefits as may be provided by Regulations madeunder section 111;“de facto spouse” means a single person who lives with a single person of theopposite sex as husband or wife for a period not less than two years,although not married to that person;“dependent contractor” means a person, whether or not employed under acontract of employment, who performs work or services for anotherperson for compensation or reward on such terms and conditions thathe or she is in relation to that person in a position of economicdependence on, and under an obligation to perform duties for thatperson more closely resembling the relationship of employee than thatof an independent contractor;“dispute” or “complaint” means any difference between one or moreemployers or organisations representing employers and one or moreemployees or organisations representing employees relating in wholeor in part to any matter covered by the Code or any law relating tolabour or generally arising out of the relationship between theemployer and the employee;“employee” means any person who enters into or works under, or where acontract of employment has been terminated for any reason, a personwho entered into or worked under, a contract with an employer,personally to perform any services or labour, whether the contract beoral or written, expressed or implied; and the term includes(a)a person whose services or labour have beeninterrupted by a suspension of work during aperiod of leave, temporary lay-off, strike orlockout;(b)an apprentice whose services or labour may bedesigned primarily to train such apprentice;(c)a commission agent;(d)a dependent contractor; and(e)a managerial employee who is not responsiblefor policy formulation or in effective control ofa department or branch of the undertaking;12

“employer” includes a person, body corporate, undertaking, association,public authority or body of persons who or which employed oremploys a person under an employment contract, and includes theheirs, successors and assigns of an employer;“employment contract” means any contract, whether expressed or implied andwhether written or oral, under which it is agreed that one person (theemployee) will perform certain services for another (the employer),and the term shall include any indenture or contract of apprenticeshipor engagement as a commission agent;“essential services” means the Police Service, Prison Service, Water andSewerage Services, Fire and Rescue Services, Electricity Generationand Distribution Services, Telecommunication Services, Health CareProviders, Transportation Services and Port Services;“established employee” means a public officer or a person employed by theGovernment whose salary is paid from or out of funds allocated for thepayment of the personal emoluments of persons on the permanent andpensionable establishment as included in the Official Estimates of theVirgin Islands;“family responsibility” means responsibilities in respect of any dependentfamily member which are reasonable in the circumstances notpersistent in practice and for which no reasonable alternative could bemade;“gratuity” means remuneration, in money, however designated, received by anemployer from customers, on behalf of employees for servicesrendered by an employee;“gross wage” means the total remuneration for services received in money, inkind and in privileges or allowances, including gratuities and premiumpay;“inspector” means any person appointed as Labour Inspector under section 12;“lockout” means(a)the exclusion by an employer of any or all of hisor her employees from any premises on or inwhich work provided by the employer has beenperformed, or13

(b)the total or partial discontinuance by theemployer of his or her business or the provisionof work,with a view to inducing his or her employees, or any persons in theemployment of any other employer or employers, to agree to, or to complywith, any demands or proposals relating to any dispute, or to abandon anydemand or modification of any demand;“Minister” means the Minister to whom responsibility for labour is assigned;“night work” means work performed between the hours of 10:00 p.m. on oneday and 5:00 a.m. on the following day;“non-established employee” means a person who is employed by theGovernment and whose wage is paid from or out of funds allocatedfor the payment of the personal emoluments of persons who are not onthe permanent and pensionable establishment as included in theOfficial Estimates of the Virgin Islands;“normal hours of work” means those hours of work for which premium pay isnot due under section 49;“parent or guardian” means a parent or guardian of a child or young personand includes any person who is liable for the maintenance of, who hasthe custody of or who has control over, a child or young person, orwho has or would have a direct benefit from the earnings of the childor young person;“part-time employment” means an employment contract, or a succession ofemployment contracts, with the same employer or a successoremployer or another employer, in which an employee is required toprovide his or her services at intervals, so that the employee is not, inany twelve month period, continuously employed by that employer,and the term includes casual employment;“periodic employee” means an employee who has worked for at least fourmonths but less than twelve months per year;“predecessor- employee” in relation to employment of a person, is one who, inconsequence of a change occurring in the ownership or in the part of anundertaking in which that person is involved, is no longer the employer ofthat person;“premium pay” refers to the form of payment mentioned in section 49;14

“prescribed” means prescribed by Regulations under section 186;“redundancy” means the loss of employment as defined in section 89(3);“Regulat

revision of the law relating to labour and in connection with the resolution of issues arising in the enforcement of those laws; (m) employers and employees shall be free, through the processes of collective bargaining or otherwise, to agree on wages and other conditions of employment, provided the .

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