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Friday, 15 December

Industrial Relations (IR) is the study of the laws, conventions and institutions that regulate 'the workplace'. It describes the relations between management and workers in an industry.

In the Solomon Islands, matters of or related to Industrial Relations are mainly handled by the Labour Division’s Industrial Relations (IR) Unit and they include:

Raising employer knowledge of...

Raising employer knowledge of basic workplace laws (Acts) and their amendments is one of the core functions of the Industrial Relations (IR) Unit. Some of these basic laws are presented here. However, these articles are presented for the purpose of general employer knowledge only and should not be relied on for legal matters. For conclusive advice on these laws, please contact the Internal Relations (IR) Unit or the Attorney General’s Chamber for current and accurate versions of these Acts.

Working hours

What is the daily maximum number of working hours?

  • According to Section 13 of the  Labour Act Cap 73, the maximum number of normal working hours per day is 9 hours.

What is the weekly maximum number of working hours?

  • According to Section 13 of the Labour Act (Cap 73), the maximum number of working hours per working week is 45 hours. If a contract states that working hours per week is 37.5 hours (e.g Public Service Workers), this implies that the said week is a ‘statutory week’. This is different from a ‘working week’ as defined in the Labour Act (Cap 73).

Can the allowable work hours be exceeded?

  • Work hours can be exceeded in the case of types of work which by nature, require work to be carried out continuously on a succession of shifts. For more information on this, including on work shift overtime and authorizations, please refer to Section 13 subsections (2) through to (7) of the Labour Act (Cap 73).
  • The Minister of Labour, by Order, may also suspend Section 13 of the Labour Act (Cap 73) by virtue of Section 13 Ss(8) in the case of war or during the declaration of a state of public emergency as provided for under section 16 of the Constitution of Solomon Islands.

How much work break is an employee entitled to?

  • According to Section 13 Ss(1)(c) of the Labour Act (Cap 73), a worker whose daily hours of work exceeds 6 hours, shall be given a minimum break time of at least 30 minutes and;
  • According to Section 13 Ss(1)(d)of the Act, hours of work and breaks from work shall be arranged in such a way as not to require the worker’s presence at the place of work for more than 12 hours daily and;
  • Section 13 Ss(1)(e) of the Act states that a worker shall be given a weekly rest of at least 24 continuous hours and;
  • According to Section 13 Ss(1)(f) of the Act, no worker will be required to work on a gazetted public holiday except those employed in a service to which the Essential Services Act applies.

How many hours can an employee work overtime each week?

  •  Subject to Section 14 Ss(1) and Section 13 Ss(5) of the Labour Act (Cap 73), the number of hours that is allowable for overtime per week is 12 hours. Section 13 Ss.(5) also provides for the exceeding of such hours provided that it is approved by the Commissioner of Labour. For more information on hours of ‘overtime’ work please contact the Labour Division’s Industrial Relations (IR) Unit for advice.

Minimum Wage

What is the minimum wage rate for employees?

  • The minimum wage rate for employees working in the agriculture, plantation and fisheries Sectors is $3.20 per hour and a wage rate of $ 4.00 per hour is the minimum for all other sectors.

Compassionate Leave

How long can an employee be absent from work on compassionate grounds?

  • On this issue, Solomon Islands laws are silent. However, based on common sense, the general practice is to give employees 2 weeks compassionate leave to attend to the death of an immediate family member or to allow them to go on annual leave. The latter can also be used to allow employees to visit sick relatives or to go on compassionate leave for personal reasons.

Natural Justice

What is natural justice in relation to the workplace?

  •  Natural justice is the connotation that workers and employers must be given sufficient time to be heard. That is each party must be given a chance to provide their side of a story before a decision can be made. An example is that a worker who is terminated must have an opportunity to submit his or her case and to respond to an alleged offence(s) before a decision to terminate that worker is made.

Procedural Fairness

What is procedural fairness?

  • Procedural fairness is concerned with procedures used by a decision maker, rather than the actual outcome. It is a dispute resolution concept and requires that a fair and proper procedure be used when making a decision.

Dismissals and Disciplinary Procedures

What are disciplinary procedures for dismissals?

  •  When terminating a worker, all employers must follow certain procedures. This can include verbal warning, written warning and suspension, before termination. Reasons for termination must be substantiated. Some offences that are criminal in nature do not always require procedures. For example, a worker can be instantly dismissed if he or she is found guilty of committing a criminal offence such as workplace theft or of causing bodily harm to another employee or his or her employer.

What are the types of dismissals?

For the purposes of this topic, there are four types of dismissals:

  1. Constructive Dismissal – This is when an employee is forced to resign due to his or her employer’s conduct.
  2. Unlawful Dismissal – This is when an employee is found to be illegally dismissed and entitled to a claim for legal redress under Section 10 of the Trade Disputes Act.
  3. Wrongful Dismissal – This is when an employee is dismissed in breach of the terms of his or her contract of employment in relation to that employee’s term of engagement.
  4. Unfair Dismissal – This is when an employee is found to have been unfairly dismissed as defined in the Unfair Dismissal Act and is entitled to a claim under Section 6 of the Act.

What is the Unfair Dismissal Act?

The Unfair Dismissal Act is a statutory law that upholds the right of every employee not to be unfairly dismissed by his or her employer. This Act defines a ‘dismissal’ as having occurred;

  • If and only if the contract under which he is employed is terminated by the employer (by notice or otherwise), or;
  • upon the expiry of a fixed term contract without being renewed under the same contract, or;
  • The employee terminates the contract under which he is employed (with or without notice) in circumstances in which, by reason of the employer’s conduct, the employee is entitled to terminate it without notice.

When is a dismissal deemed to be fair?

Section 4 of the Unfair Dismissal Act defines an employee as not unfairly dismissed if he or she

  1. The employee is dismissed for a substantial reason of a kind such as to justify the dismissal of an employee holding his position and;
  2. The employer has acted reasonably in treating that reason as sufficient for dismissing the employee.

Payments ‘in Lieu of Notice’

What is a ‘Payment in Lieu of Notice’?

  • Employees whose contracts are terminated by their employer are entitled by Section 3 of the Labour Act to a period of one month’s notice of their termination. Alternatively, Section 3 also gives the option for an employer to pay the employee a sum of one month’s wages in place of (in lieu of) such a notice of termination. Such payments in lieu of notice will be deemed as having the same effect as a month’s notice of termination. For more information on notice of termination or payments in lieu of such a notice, please contact the Industrial Relations (IR) Unit.

Women in Employment

What do our labour laws say about women in employment?

  • Solomon Islands labour laws state that there is no discrimination in employment and that all genders are entitled to equal employment opportunities.

Are women paid at a different rate to their male counterparts?

  • Solomon Islands labour laws state that women are to be paid at the same rate as their male counterparts within an organization’s pay structure.

What types of jobs are women not allowed to work in?

  • The only type of job description that women are not allowed to partake in are work in mining pits. However, women are allowed to work in the offices of mining groups.

Insurance

Are employers required to provide insurance cover for employees?

  • According to Section 20 of the Employment Act, all employers are obliged to cover their workers in an insurance against injuries arising out from the course of employment. Section 20 of the Employment Act also covers claims, regulations and fines related to this employer obligation.

Casual Employment

What is Casual Employment?

  • Under the Labour Act (Cap 73), a casual employee is “an employee or worker employed on a temporary or irregular basis.” This is done at an hourly rate of wages that is payable at the end of each day or on completion of a task or piece of work specified at the time of engagement. This definition infers that the said task can be completed in a shorter period than that of a normal working week or statutory working week. The Industrial Relations (IR) Unit is responsible for ensuring that employers are aware of who is and who is not a casual employee.

Redundancy and Payments

What is redundancy in employment terms?

  •  The concept of redundancy is based on the notion that a person has a property right to their job. Like any other piece of property owned by a person, if it is taken away by someone else that person must pay compensation. Redundancy is a situation when the job an employee does is no longer required by the employer. Technically it is the job that is redundant or not needed and the compensation is paid to the current holder of the job. Redundancy is a fair reason for dismissal. The purpose of redundancy pay is to compensate a worker for loss of job, irrespective of whether that loss leads to unemployment. It is to compensate for loss of security, possible loss of earnings and fringe benefits and the uncertainty and anxiety of a change job. The Industrial Relations (IR) Unit is responsible for ensuring that both employers and employees are aware of their rights and obligations (legal or otherwise) with regards to redundancy exercises and payments.

Why do certain job positions become redundant?

The main reasons for a job position becoming redundant are:

  1. Closure of a company or business
  2. Firm no longer needs employees
  3. Requirements of that business for employees to carry out work of a particular kind have ceased or diminished.
  4. Encourage workers to leave one type of work for another job in an expanding sector.
  5. Discourage overstaffing and to minimize the industrial relations difficulties that can ensure when people are made redundant.

What is a Redundancy Payment?

  • A redundancy payment is the compensation that an employer pays to an employee for the loss of job sustained by reason of redundancy.

When is an employee entitled to Redundancy Payment?

An employee can put in a claim for redundancy payment if that employee meets the following criterias:

  1. Employee working under contract of employment and;
  2. Employee dismissed by employer and;
  3. Dismissal is because of redundancy and;
  4. Employee has been continuously employed for a period of twenty six (26) weeks or more ending with the date of Dismissal.

When is an employee excluded from the right to redundancy payment?

According to the Employment Act (Cap 72), an employee who is dismissed because of redundancy is not entitled to a redundancy payment if:

  1. That Person is over the age of fifty (50) years.
  2. That Person is dismissed in circumstances in which his employer is entitled to terminate his contract without notice by reason of the employee's conduct.
  3. Before the ending of his employment under the previous contract, the employer has made him an offer in writing to renew his contract, or to re-engage him under a new contract where the terms and conditions of his employment under the new or renewed contract would differ from the terms and conditions under the previous contract, the offer specifies the differences and is an offer of suitable employment for the employee.
  4. The renewal or re-engagement would take place not more than four weeks after the ending of his employment under the previous contract.
  5. The employee unreasonably refuses the offer.

Procedure for redundancy exercise

The procedure for a redundancy exercise is that;

  1. A 28 days notice is served to the Commissioner of Labour. The notice must expire on the date in which the employer will inform the workers of their redundancy.
  2. An approval is served by the Commissioner of Labour to the employer before any redundancy exercise is carried out.

Payments in the redundancy exercise to include:

The following are to be paid to the employee by the employer as part of a redundancy exercise:

  1.        Notice pay if a notice is not served;
  2.        Redundancy payment;
  3.        Repatriation;
  4.        Holiday pay;
  5.        Any other payments owed to the employee.

Calculation of redundancy payment

Redundancy payments are to be calculated using the following formula:

PE x 1/26 x BW

Where;

"PE" is the number of weeks in the period of employment and "BW" is the basic weekly wage for the employment on the date of the dismissal to which the redundancy payment relates.

Example of redundancy calculation….

In which an employee commences employment on 1/01/1978

And is made redundant effective on 14/01/1982

PE = 210 weeks

BW = $25.00 per week

Therefore redundancy payment is

=PE x 1/26 x BW

=210 x 1/26 x $25

=$201.92

What weeks qualify to be used as part of redundancy payment calculations?

Weeks that can be used as part of redundancy payment calculations are weeks in which:

  1.        Employee has worked for more than half of normal weekly working hours (more than 23 hours) excluding overtime.
  2.        Maternity leave is taken.
  3.        Sick leave is taken or employee absent through injury.
  4.        Normal holidays and absences from work which do not break an employee’s contract terms.

 

Holidays, sick leave and passage rules

What does the labour Act say about holidays, sick leave and passage rules?

  • Details pertaining to employee holidays, sick leaves and passage rules are often left to contracts of employment between an employer and his or her employee.
  • However, by virtue of Section 80 of the Labour Act, interpretations have been established by the Minister responsible for Labour, through legal notice (Legal Notice No. 19 of 1982) to set guidelines for the wording of holidays, sick leaves and passage rules into employee contracts. Please contact the Industrial Relations (IR) Unit for details of these legal interpretations.