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CARICOM MODEL LEGISLATION WITH REGARD TO EQUAL
PAY
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Explanatory Memorandum:
Long title. This sets out the objects and scope of the legislation
which seeks to remove or prevent discrimination (based on sex) in the rates of
remuneration for males and females in employment.
The Short title highlights the main objects of the legislation
by referring to Equal Pay.
Clause 2 includes definitions of equal pay, equal work
and remuneration.
Subsection (2) deals with the circumstances in which a person
will be regarded as being employed in an establishment. It is expected that in
the context of equal pay legislation, the reference to the business of an employer
or, in some cases, the organisation in which or in relation to which work is performed.
Subsection (4) provides that specially favourable treatment accorded
to an employee in connection with a child's birth or expected birth or with terms
and conditions of employment related to retirement, family or death, will not
be regarded as constituting discrimination between male and female employees.
Subsection (5) provides that if the provisions of any law limit
the work to be performed by female employees, no account shall be taken of such
provisions in determining whether an element of differentiation exists in the
rates of remuneration.
Subsections (6) and (7) make provisions for matters to be referred
to a referee for the purpose of determining whether any treatment is favourable
to a particular employee.
Clause 3 prohibits employers from discriminating between
male and female employees by failing to pay equal pay for equal work.
Subsection (2) provides that an employer who contravenes subsection
(1) commits an offence and is liable to a fine on conviction.
Subsection (5) provides that a prosecution for an offence shall
not be taken until the mediation procedure has been determined or until the point
at which restrictions no longer apply.
Clause 4 empowers the court to order an employer to pay
arrears of salary where that employer is convicted of an offence of failure to
pay equal pay for equal work or where the employer is acquitted by virtue of the
special defence set out in Clause 5(2).
Subsection (3) provides that in determining the sum of arrears
to be paid, no account shall be taken of any period earlier than six years immediately
preceding the date of complaint. In any case, no account will be taken of any
period before the enactment of equal pay legislation.
Subsection (4) permits the employee to enforce an order for payment
in the same manner as a judgement in favour of that employee.
Clause 5 deals with offences committed by agent. The agent
is liable to be proceeded against in the same manner as if the agent were the
employer.
Subsection (2) sets out a defence to the employer to prove due
diligence in enforcing the Act and that the offence was committed by an agent
or other person without the employer's knowledge, consent or connivance. Note,
however, that although the employer will not be convicted if the defence succeeds,
the court is nevertheless empowered to order payment of arrears by the employer
(See Clause 4(2))
Clause 6 contains provisions for prevention of evasion
of the Act by a contract of employment which would result in contravention of
the Act.
Subsection (1) provides that such a contract is null and void
and that Clause 3 applies in place of it.
Subsection (2) defines contract of employment to include collective
agreements.
Subsection (3) provides that an employee's acceptance of remuneration
in contravention of Clause 3 is not a defence in any action to recover remuneration
at a rate provided in the Act nor is it a bar to proceedings under the Act or
a defence to prosecution.
Subsection (4) prohibits an employer from dismissing or otherwise
discriminating against an employee who-
(a) makes a complaint or gives evidence or otherwise assists in the prosecution
of a complaint; or
(b) whose remuneration is, as respects any period before the enactment of equal
pay legislation, likely to be regulated by such legislation.
Subsection (5) makes it an offence to contravene subsection
(4).
Clause 7 places the burden of proof on the employer in
a prosecution for contravention of Clause 3.
Clause 8 requires employers to keep certain employment
records.
Clause 9 requires the Minister to designate public officers
for the purpose of investigating complaints and otherwise securing proper observance
of the Act.
Subsection (2) gives the officers powers of entry to employers'
premises and enables them to request and inspect wage sheets and other records.
Subsection (3) requires that the designated officer be furnished
with a certificate of designation to be produced on request on entry to employers'
premises.
Subsection (4) requires employers to cooperate with the designated
officer.
Clause 10 provides offences of obstruction and failure
to produce wage sheets, etc.
Subsection (2) deals with the offences of falsifying wage sheets
or other documents and of pretending to be a designated officer with intent to
deceive an employer.
Clause 11 permits the designated officer to prosecute
offences under the Act.
Clause 12 empowers the Minister to make regulations for
giving effect to the Act.
The Schedule sets out the mediation procedure required
for dealing with complaints.
A complaint is to be made to the Minister who directs a designated officer to
investigate and to attempt to effect a settlement between the persons affected
by the breach of Clause 3. The officer is required to report to the Minister within
60 days.
If the officer fails to effect a settlement, the Minister is empowered to refer
it to a referee for review.
The referee reviews the matter and reports to the Minister, making recommendations
as to an appropriate course of action to be taken.
The Minister is required to give a copy of that report to the persons affected.
The Minister is required to give a copy of that report to the persons affected.
The Minister is empowered to make an order to give effect to the referee's recommendation
and in that order may require the employer to pay equal pay to the employees affected.
The Minister is also empowered to appoint a panel of referees.
Prosecution of breaches will not commence unless
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(a) the Minister fails to direct an
investigation within 15 days after the complaint
is made;
(b) a designated officer fails to effect a settlement
between the persons affected or the minister fails
to refer the matter to a referee within 30 days
after receiving the officer's report;
(c) the Minister fails to make an order within 30
days after receiving the referee's report;
(d) where an order is made, the employer fails to
comply within 30 days after the date of the order.
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Provisions are also made for remuneration of referees and protection of referees
from legal action in respect of bona fide acts in the performance of
their duties.
THE EQUAL PAY ACT
ARRANGEMENT OF SECTIONS
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Short title
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Interpretation
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Payment of equal pay for equal work
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Power of Court under payments
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Offence of agent
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Prevention of evasion
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Burden of Proof
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Records to be kept
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Assignment of officers and power of
entry and inspection
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Offence of obstruction, etc.
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Designated officer may institute
proceedings
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Regulations
Schedule
MODEL LEGISLATION ON EQUAL PAY
AN ACT to make provision for the removal and prevention of discrimination, based
on the sex of the employee, in the rates of remuneration for males and females
in paid employment, and for matters incidental thereto.
ENACTING CLAUSE
Short title
1. This Act may be cited as the Equal Pay Act.
Interpretation
2. (1) In this
Act, unless the context otherwise requires -
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"appointed day" means
the date of commencement of this Act;
"employee" means a
person who has entered into or works under a contract
of service or of apprenticeship;
"employer" means a
person who employs one or more employees;
"equal pay" means a
rate or scale of remuneration for work in which
rate or scale there is no element of differentiation
between male and female employees based on the
sex of the employees;
"equal work" means
work performed for one employer by male and female
employees in which -
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(a) the duties, responsibilities or services to
be performed are similar or substantially similar
in kind, quality and amount;
(b) the conditions under which such work is performed
are similar or substantially similar;
(c) similar or substantially similar qualifications,
degrees of skill, effort and responsibility are
required; and
(d) the difference (if any) between the duties
of male and female employees are not of practical
importance in relation to terms
and conditions of employment or do not occur frequently;
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Schedule
"referee"
means a member for the time being of the panel
of persons appointed by the Minister to
be referees in accordance with the Schedule;
"remuneration" in relation
to an employee, means the salary or wages actually
and legally payable to that employee and
includes -
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(a) time and piece work wages and overtime, bonus
and other payments;
(b) allowances, fees, commission and every other
emolument including fringe benefits, whether in
one sum or several sums and
whether paid in money or not.
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(2) For the purposes of this Act, a person shall
be regarded as employed in an establishment if
that person is employed to work in the establishment
or, where that person is employed to work otherwise
than in the establishment, if the employment is
carried out from the establishment.
(3) A person shall not be regarded for the purposes
of this Act as being employed in [country] if
that person's employment is wholly or mainly outside
of [country] but employment on an aircraft or
ship, as the case may be, registered in [country]
shall not be regarded for the purposes of this
Act as employment outside [country], unless it
is wholly outside [country].
(4) In so far as any specially favourable treatment
approved as such by a referee is accorded to an
employee in connection with -
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(a) the birth or expected birth of a child; or
(b) terms and conditions of employment related
to retirement, family or death, such treatment
shall be deemed for the purposes of this Act not
to be in contravention of the requirement not
to discriminate between male and female employees.
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(5) In determining whether there exists an element
of differentiation, in the rates of remuneration
for male employees and female employees for any
class of work, no account shall be taken of any
provision in any Act which limits the work which
female employees may perform.
(6) If, on the application of any employer or
employee or any organisation recognised by the
Minister as representative of employers or of
employees, the Minister is satisfied that there
is need to determine whether or not any treatment
mentioned in subsection (4) is favourable to the
employees concerned, the Minister shall refer
the matter to a referee for decision.
(7) Where a reference is made under subsection
(6), the referee -
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(a) shall give full opportunity to parties appearing
to the referee to be affected by, or concerned
with, the matter to present evidence and make representations
to the referee; and
(b) may determine the procedure to be followed
and may take into account the extent to which
the employees concerned in the matter, or a majority
of them, consider the treatment to be favourable
to them.
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Payment of equal pay for equal work
3. (1) From and
after the appointed day no employer shall, by
failing to pay equal pay for equal work, discriminate
between male and female employees employed by
the employer's establishment.
(2) Subject to subsection (5), any employer who
contravenes subsection (1) in respect of any employee
shall be guilty of an offence and shall be liable
on conviction to a fine not exceeding [ ] dollars,
and in the case of a continuing offence,
to a fine not exceeding [ ] dollars for
each day on which the offence is continued after
conviction.
(3) Where an employer is convicted of an offence
under this section, the court may, without prejudice
to its powers under subsection (2), order the
employer to pay to any employee in relation to
whom the offence was committed, such sums as appear
to the court to be due to that employee having
regard to the provisions of subsection (1).
(4) In determining any sum under subsection (3),
no account shall be taken of any period before
the period of [six] years immediately preceding
the date on which the relevant information or
complaint was laid and in any event no account
shall be taken of any period before the appointed
day.
(5) No prosecution for an alleged offence under
this section shall be undertaken -
Schedule
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(a) unless in relation thereto the mediation procedure
set out in the Schedule has been adopted; and
(b) until, pursuant to that Schedule, there is
no restriction on proceedings for prosecution.
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Power of Court under payments
4. (1) Evidence may be given
of any failure on the part of an employer to pay
remuneration to any employee of that employer
in accordance with section 3(1) if notice of intention
to give such evidence is served on the employer
at least seven days before the hearing of any
information or complaint for an alleged contravention
of that section.
(2) If the employer is convicted of a contravention
of section 3 or is acquitted on the ground of
the special defence created by section 5(2), the
court may, without prejudice to its powers under
section 3(2), order the employer to pay to the
employee concerned such sums (hereinafter referred
to as arrears of remuneration) as appear to the
court to be due to the employee having regard
to the provisions of section 3(1).
(3) In determining any sum referred to in subsection
(2), no account shall be taken of any period before
the period of six years immediately preceding
the date on which the relevant information or
complaint was laid and in any event no account
shall be taken of any period before the appointed
day.
(4) An order under subsection (2) for the payment
of any arrears of remuneration to any person may
be enforced by that person against the employer
in like manner as a judgment in favour of that
person and, until the sum is paid, the order shall
not be in derogation of any right of that person
to recover remuneration by any other proceedings.
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Offence of agent
5. (1) Where
an offence for which an employer is by virtue
of this Act liable to a penalty, has in fact been
committed by some agent of that employer or by
some other person, that agent or other person
shall be liable to be proceeded against for the
offence in the same manner as if the agent or
other person were the employer, either together
with, or after the conviction of the employer
and shall be liable on conviction to the same
punishment as that to which the employer is liable.
(2) Where an employer who is charged with an offence
against this Act proves to the satisfaction of
the court that -
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(a) the employer has used due diligence to enforce
the execution of this Act; and
(b) the offence was in fact committed by the agent
of the employer or by some other person without
the employer's knowledge, consent or connivance,
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then in the event of the conviction of that agent
or other person for the offence, the employer
shall not be convicted of the offence; without
prejudice, however, to the power of the court
to make an order under section 4(2).
(3) Where the immediate employer of any employee
is also in the employment of some other person
and that employee is employed on the other person's
premises, that other person shall, for the purposes
of the provisions of this Act relating to the
enforcement of section 3(1), be deemed to be an
employer of the employee jointly with the immediate
employer.
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Prevention of evasion
6. (1) Any provision
of a contract of employment of evasion express
or implied, made in, or which would result in,
contravention of section 3(1), shall be null and
void and in lieu thereof the provisions of section
3 shall be deemed to apply.
(2) In subsection (1), "contract of employment"
includes collective agreement.
(3) The acceptance by an employee of remuneration
in contravention of section 3 shall not be -
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(a) a defence to any action by that employee to
recover remuneration at a different rate as provided
for in this Act;
(b) a bar to any proceedings under this Act; or
(c) a defence to any prosecution under this Act.
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(4) No employer shall dismiss or otherwise discriminate
against any employee because that employee has
made a complaint or given evidence or assisted
in any way in relation to the initiation of a
complaint or other proceeding under this Act or
because that employee's remuneration is, as respects
any period before the appointed day, is likely
to be regulated by this Act.
(5) Any person who contravenes subsection (4) shall
be guilty of an offence and shall be liable on
summary conviction to a fine not exceeding [ ]
dollars or to imprisonment for a term not exceeding
[ ] months.
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Burden of proof
| 7. In any prosecution of a person for a contravention
of section 3, the burden of proving that equal pay
has been paid for equal work shall be on the employer. |
Records to be kept
8. (1) Every
employer who employs both men and women shall
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(a) keep such records as the Minister may, by
notice published in the Gazette, require
to be kept for any purpose connected with the
provisions of this Act; and
(b) keep such records of remuneration as are necessary
to show that the provisions of this Act are being
complied with in respect of persons employed by
that employer.
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(2) Any employer who fails to keep any record
as required by subsection (1) shall be liable
on summary conviction in respect of each offence,
to a fine not exceeding [ ] dollars and to an
additional fine not exceeding [ ] dollars for
each day in which the offence is continued after
conviction.
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Assignment of officers and power of entry and inspection
9. (1) The Minister
shall designate such officers as the Minister
may think necessary for the purpose of investigating
any complaints and otherwise securing the proper
observance of the provisions of this Act.
(2) Any officer designated pursuant to subsection
(1) (hereinafter) referred to as a designated
officer) may at any reasonable time, enter the
premises of any employer who employs both men
and women and may -
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(a) require the production of wage sheets, records
of remuneration or occupation, or any other record
required to be kept pursuant to section 8; and
(b) inspect and examine such wage sheets and records
and copy any material therefrom.
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(3) A designated officer shall be furnished with
a certificate of designation and on entering any
premises pursuant to subsection (2), the officer
shall, if required to do so, produce the certificate
to the employer or other person in charge of the
premises.
(4) Any employer or other person in charge of
any premises entered by an officer pursuant to
subsection (2), shall give the designated officer
all reasonable assistance and furnish the officer
with such records or information as the officer
may reasonably require.
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Offences of obstruction, etc.
10. (1) Any person
who -
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(a) obstructs, hinders or prevents any designated
officer from entering premises pursuant to section
9(2); or
(b) fails or refuses to produce any wage sheet
and record required to be produced in accordance
with section 9(2), being a wage sheet or record
which was made or should have been made within
the preceding six years, shall be guilty of an
offence and shall be liable on summary conviction
to a fine not exceeding [ ] dollars or to imprisonment
for a term not exceeding [ ] months.
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(2) Any person who -
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(a) makes or causes to be made or knowingly allows
to be made any wage sheet, record of remuneration
or occupation which is false in any material particular
or produces or causes to be produced or knowingly
allows to be produced any wage sheet or other
record to any officer acting in exercise of the
powers given to that officer by this Act, knowing
the same to be false; or
(b) not being a designated officer, with intent
to deceive any employer or employee, pretends
to be such officer, shall be guilty of an offence
and shall be liable on summary conviction
to a fine not exceeding [ ] dollars or to imprisonment
for a term not exceeding [ ] months or to both
such fine and imprisonment.
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Designated officer
may institute proceedings
11. (1) Proceedings against
any person for an offence against or for the recovery
of any penalties under this Act or any regulations
made thereunder, may be instituted by any designated
officer assigned pursuant to subsection (1) who
is authorised in that behalf by the special or
general directions of the Minister and any such
officer may prosecute such offence.
(2) In any action or other legal proceedings brought
against any designated officer in respect of any
act done in pursuance or execution or intended
execution of this Act, the plaintiff shall not
recover unless the plaintiff alleges in the pleadings
and proves at the trial that such act was done
either maliciously or without reasonable and probable
cause.
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Regulations
12. (1) The Minister
may make regulations generally for giving effect
to this Act and, without prejudice to the generality
of the foregoing, such regulations may provide
for -
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(a) the furnishing or such information as the
Minister may from time to time require to enable
the Minister to review the operation of this Act;
Schedule
(b) the amendment, repeal or replacement of the
Schedule;
(c) any matter required by this Act to be prescribed.
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(2) Any regulations made pursuant to paragraph
(b) of subsection (1) shall be subject to affirmative
resolution.
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SCHEDULE (Section 3(5))
Mediation Procedure
Complaints
1.
Any person claiming to be aggrieved
because of an alleged breach of section 3, or
any person acting on behalf of that person, may
make a complaint to the Minister.
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Reference to an assigned officer for
settlement
2.
Where, pursuant to a complaint
under paragraph 1 or pursuant to any other
information coming to the attention of the
Minister, the Minister is of the opinion that a
breach of section 3 may have occurred, the
Minister may direct a designated officer to
investigate the alleged breach and to attempt to
effect a settlement between the persons affected
by, or concerned with, the alleged breach.
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Report of assigned officer
3.
A designated officer shall, within
sixty days of receiving a direction under
paragraph 2, report to the Minister as to the
results of the investigation and to the
officer's success in attempting to effect a
settlement between the persons affected by, or
concerned with, the alleged breach.
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Reference to referee if no settlement
reached
4.
Where a designated officer fails to
effect a settlement between persons affected by,
or concerned with, the alleged breach the
Minister may refer the matter for review by a
referee.
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Procedure of referee
5. A
referee-
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(1) >
shall give full opportunity to all parties
affected by, or concerned with, the alleged
breach to present evidence and make
representations to the referee; and
(2)
may determine the procedure to be followed and,
subject to sub-paragraph (a), the evidence to be
received and accepted, whether or not that
evidence would be admissible in a court of law
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Report of referee
6.
The referee shall submit a report
to the Minister and recommend to the Minister
the course that the referee thinks should be
taken with respect to the alleged breach.
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Publication of report
7.
The Minister shall furnish a copy
of the report and recommendation of the referee
to each of the persons affected by, or concerned
with, the alleged breach and if the Minister
deems it advisable, may publish the report and
recommendation in such manner as the Minister
thinks fit.
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Order of Minister
8. (1)
Upon receipt of the report and
recommendation of the referee, the Minister may
make such order as the Minister deems necessary
to carry into effect the recommendation of the
referee and without prejudice to the generality
of the foregoing may -
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(a) order the employer concerned in the
alleged breach to pay equal pay to employees affected thereby; or
(b)
order the employer to pay to any employee of the employer
a sum of money to make up any difference between the rate
of pay paid to that employee and the rate paid to any
other employee performing similar or substantially similar
kind or quality of work during the period for which a
difference existed in the respective rates of pay,
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or order both those
things together with such other order he deems
necessary.
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| (2) An order
under
sub-paragraphs (1)(b) shall not take account of any
difference in the rate of pay before the appointed
any or before the period of six years immediately
preceding the date of the report of the referee,
whichever is the later. |
Panel of referees
9.
For the purposes of this Act, the
Minister may appoint a panel of such number of
persons as the Minister thinks fit to be
referees and may make such rules as the Minister
thinks fit for the distribution of business
between such referees.
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Restriction on prosecution
10. Where
a person makes
a complaint under paragraph 1 in respect of an
alleged breach of section 3 that person shall
not commence, or give evidence or assist in any
way, any proceeding to prosecute any person for
the alleged breach unless -
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(a) the Minister fails within fifteen days
after the complaint is made, to direct a designated officer to investigate the alleged
breach;
(b) designated officer fails to effect a settlement between the persons affected by, or
concerned with, the alleged breach and the Minister fails to refer the matter to a referee
within thirty days after receiving the report of the designated officer;
(c) after reference has been made to a referee, the Minister fails within thirty days
after receiving the referee's report, to make an order under paragraph 8;
(d) an order is made under paragraph 8 and the employer fails to comply with that order
within thirty days after the date thereof.
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Remuneration of referee
11.
There shall be paid to the referee
such remuneration (whether by way of salary or travelling or other allowances) as the Minister
may determine.
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Protection of referee
12.
No action, suit, prosecution or
other proceedings shall be brought or instituted
personally against any referee in respect of any
act done bona fide in the performance of the referee's duties under this Act.
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