Jamaica : The Holidays With Pay Act

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JAMAICA
THE HOLIDAYS WITH PAY ACT

ARRANGEMENT OF SECTIONS

1.    Short title.
2.    Interpretation.
3.    Power to provide for holidays with pay, sick leave, gratuities and sick benefit in any occupation.
4.    Provisions relating to workers other than casual workers.
5.    Provisions relating to casual workers.
6.    Appointment of Advisory Boards.
7.    No power to contract out of Act.
8.    Records to be kept.
9.    Offences.
10.   Offence by agent.
11.   Regulations.
        


THE HOLIDAYS WITH PAY ACT
    
Cap. 149.
          
Law
        42 of 1954.
          Acts
5 of 1963,
23 of 1969
    

[27th March, 1947.]


Short title.
1.           This Act may be cited as the Holidays with Pay Act.

Interpretation.
2.        In this Act -     

“casual worker” means any worker who is employed –

(a) from day to day; or 42/1954  S.3(a).

(b)    for the performance of a particular task which normally cannot be performed in less than one working day;

“holiday remuneration” means the amount of remuneration payable to a worker during any holidays with pay to which he may be entitled under any order;   42/1954  S.9.

“Labour Officer” means a Labour Officer as defined in the Labour Officers (Powers) Act;

“occupation” means -   23/1969 S.2.

(a)    any trade, industry, undertaking or business; or

(b)    any other activity, whether of a commercial nature or not;

“order” means an order made under section 3;    42/1954 S.3(b).
    
“worker’s earnings” means the regular amounts paid by an employer to a worker in respect of the worker’s services, but does not include any amount paid in respect of overtime work or by way of bonus unless any payments by way of bonus form part of such regular amounts.

Power to provide for holidays with pay, sick leave, gratuities and sick benefit in any occupation.  42/1954 S.4.
3.         Subject to the provisions of this Act, the Minister may by order direct that workers, including casual workers, in any occupation shall be entitled to be allowed such holidays with pay, such sick leave with pay, such gratuities benefit in and such sick benefit as may be determined in such order.

Provisions relating to workers other than casual workers   42/1954 S.4.
4. (1)         Any order relating to workers other than casualworkers may make provision for the conditions on which, and the time at or the periods within which, any holiday with pay to which the worker is entitled shall be allowed and for the conditions on which and the period for which the worker shall be entitled to sick leave with pay, and shall make provision for the duration of, and the minimum holiday remuneration payable during, any such holiday, and shall make provision for the duration of, and the minimum remuneration payable during, any period of sick leave.

4. (2)        The provision in any order in respect of -

(a)    the duration of the holiday with pay and the duration of the sick leave with pay, shall be related to the duration of the period for which the worker has been employed or is engaged to be employed;

(b)    the minimum holiday remuneration and the mini remuneration payable during sick leave, shall be related to the worker’s earnings during such period prior to the date of the commencement of the holiday with pay or sick leave with pay, as the case may be, as may be specified in the order.

4. (3)        An order may specify and define the occupation to which it applies, and may be applicable either generally to all such occupations or specially to such occupations as may be within a specified area.

4. (4)        The holidays and the sick leave to which a worker is entitled to be allowed under any order shall, unless such order otherwise provides, be in addition to any holidays or half-holidays to which the worker may be entitled under any other law.

Provisions relating to casual workers.   42/1954 S.4.
5. (1)         An order may provide that casual workers or any category of casual workers specified in such order in the occupation to which such order relates, shall be entitled to be paid such gratuities as may be determined in such order.

5. (2)        Any provision under subsection (1) in any order may specify the conditions on which and the time at or the period in respect of which any gratuity to which any casual worker is entitled shall be paid and shall specify the minimum gratuity payable under such order to any casual worker in the occupation to which the order applies.

5. (3)        Any provision under this section in any order in respect of the amount of the gratuity payable to any casual worker shall be related -

(a)    to the earnings paid to the worker in the capacity of a casual worker by the employer by whom the gratuity is payable during such period prior to the date of the payment of the gratuity as may be specified in the order; and

(b)    to the number of days on which such worker has been employed in the capacity of a casual worker by such employer during such period.

5. (4)        Any gratuity payable to any worker by virtue of any provision under this section in any order shall, unless such order otherwise provides, be in addition to any gratuity payable to the worker under any other law and shall be in addition to any sick benefit payable to the worker under the succeeding provisions of this section.

5. (5)        Any order which contains provision under the foregoing provisions of this section for the payment to casual workers in any occupation of gratuities may also contain provision for the payment to such casual workers of sick benefit.

5. (6)        Any provision under subsection (5) in any order may specify the conditions on which and the time at or the period in respect of which any sick benefit to which any casual worker is entitled shall be paid and shall specify the minimum sick benefit payable under such order to any casual worker in the occupation to which the order applies.

5. (7)        Any provision under this section in any order in respect of the amount of sick benefit payable to any casual worker shall be related—

(a)    to the earnings paid to the worker in the capacity of a casual worker by the employer by whom the sick benefit is payable during such period prior to the date of payment of the sick benefit as may be specified in the order; and

(b)    to the number of days on which such worker has been employed in the capacity of a casual worker by such employer during such period.

5. (8)        Any sick benefit payable to any worker by virtue of any provision under this section in any order shall, unless such order otherwise provides, be in addition to any sick benefit payable to the worker under any law and shall be in addition to any gratuity payable to the worker under this Act.

Appointment of Advisory Boards.   5/1963 S.2.
6. (1)         Subject to the provisions of this Act the Minister may, where he considers it advisable, appoint Advisory Boards to make recommendations in relation to the grant of holidays with pay, sick leave with pay, gratuities and sick benefit to workers in such occupations as he may specify in respect of each Advisory Board.

6. (2)        Where any Advisory Board has been appointed under the Minimum Wage Act, such Board shall have power to include in its report recommendations relating to holidays with pay and to sick leave with pay for workers other than casual workers and to gratuities and sick benefit for casual workers in the occupation in relation to which the Board was appointed.  42/1954 S.5.(b).

No power to contract out of Act.
7.         Any provision in an agreement between any employer and a worker whereby the worker purports to contract himself out of the provisions of any order made under this Act, or whereby the worker undertakes to receive any less benefit than he is entitled to under any such order, shall have no effect.

Records to be kept.   42/1954 Ss. 6,9.
8.        Where under any order a worker in any occupation is entitled to be allowed any holiday with pay or sick leave with pay or any gratuity or sick benefit then his employer shall keep such records as may be prescribed.

Offences.
9. Any employer who –

(a)    falls to allow, under and in accordance with the terms of any order, to a worker any holiday with pay or sick leave with pay or gratuity or sick benefit which such worker is entitled to be allowed under such order; or

(b) enters into any contract any of the provisions of which is of no effect under section 7; or

(c)    fails to keep any records in accordance with the provisions of section 8, or knowingly enters, or causes to be entered, in such records any false or incorrect fact; or

(d)    contravenes the provisions of any regulations made under this Act,

shall be guilty of an offence against this Act and liable on summary conviction before a Resident Magistrate to a fine not exceeding two hundred dollars or to imprisonment with hard labour for any term not exceeding six months.

Offence by agent.
10. (1)     Where an offence for which an employer is by virtue of this Act, or of any regulations made thereunder, liable to a fine has in fact been committed by some agent of the employer or other person, that agent or other person shall be liable to be proceeded against for the offence in the same manner as if he were the employer, and either together with, before, 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.

10. (2)        Where the employer who is charged with an offence against this Act or against any regulations made thereunder proves to the satisfaction of the court that he has used due diligence to enforce the execution of this Act and such regulations, and that the offence was in fact committed by his agent or some other person without his knowledge, consent, or connivance, he shall, in the event of the conviction of that agent or other person for the offence, be exempt from any penalty in respect of the offence.

10. (3)        Where the immediate employer of any worker who is entitled to be allowed holidays with pay or sick leave with pay or any gratuity or sick benefit under any order is himself in the employment of some other person and that worker is employed on the premises of that other person, that other person shall, for the purpose of the provisions of this Act relating to the penalty for the failure to allow such holidays with pay, or sick leave with pay or any gratuity or sick benefit, be deemed to be an employer 42/1954 of the worker jointly with the immediate employer.  42/1954 Ss. 8 & 9

Regulations.
11. The Minister may make regulations generally for giving effect to the purposes of this Act and for the better carrying out of any of the provisions of this Act.


THE HOLIDAYS WITH PAY ACT
ORDER
(under section 3)

The Holidays with Pay Orders 1973    

LN. 189/73
    163/74
    54b/9l



(Made by the Minister on the 22nd day of May. 1973)
L.N. 189/73
Amd:
L.N. 163/74
54b/91
[1st June, 1973.]

Citation.
1.         This Order may be cited as the Holidays with Pay Order, 1973.

Interpretation.
2. (1)         In this Order unless the context otherwise requires –
“normal wages” means in relation to any worker, the remuneration regularly paid to him by his employer as wages or commission, and includes any amounts regularly so paid by way of bonus as part of such remuneration but does not include -

(a)    any overtime wages; or

(b)    any premium or special allowance paid -

(i)     in consideration of the times at which, or the conditions subject to which, or the circumstances in which, he works in the course of the performance of his duties; or

(ii)     in consideration of any inconvenience suffered or likely to be suffered by him in the course of the performance of his duties;

“normal working week” means the number of days in a week on which the worker in relation to whom that expression is used is normally required to work for the employer by whom a holiday with pay or sick leave with pay is granted under this Order;

“public general holiday” has the meaning assigned to that expression by the Holidays (Public General) Act;

“qualifying year”’ means, in relation to the employment of any worker to the person who for the time being is his employer. a period of twelve months commencing, in the case of the first qualifying year –

(a)    on the 1st day of January. 1973, if such employment was in existence on that date; or

(b)    on the first day of such employment if that day is later than the 1st day of January. 1973,

and in the case of the second and subsequent qualifying years, on the date immediately following the preceding qualifying year;

“worker” means any person who has entered into or works under a contract with an employer, whether the contract be by way of manual labour, clerical work or otherwise, be express or implied, oral or in writing and whether it be a contract of service or of apprenticeship or a contract personally to execute any work or labour, but does not include –

(a)    any person employed by the Government; or

(b)    any person employed in the service of the Kingston and St Andrew Corporation Council or of any Parish Council; or

(c)    a director of any company who is employed by that company.

2. (2)        For the purposes of this Order a worker shall be deemed –

(a)    to have worked, on any day of holiday with pay granted to him under this Order, for the employer by whom such holiday was granted;

(b)    to have worked for his employer on any day of sick leave with pay granted under this Order if that employer would, hut for the fact that he was granted sick leave, normally have required him so to work;

(c)    to have worked for his employer on any day on which that employer would, but for the fact that such day was Good Friday or Christmas Day or a public general holiday, normally have required him so to work;

(d)    to have worked for a full day whenever he is required to work for a part of any day.

Holiday with pay.
3. (1)         Any worker, other than a casual worker, who works for any employer on not less than 110 days in any qualifying year shall be granted a holiday with pay by that employer in respect of that qualifying year.

3. (2)        The duration of such holiday with pay shall be determined in accordance with the Schedule.

When and how holiday with pay is to be granted.
4. (1)         The holiday with pay which any worker has earned in any qualifying year under paragraph 3

(a)    shall be granted by his employer during the next succeeding qualifying year; or

(b)    may, by agreement between him and his employer, be granted during that qualifying year; or

(c)    may be carried forward and added to any holiday with pay which he may earn in .the first two succeeding qualifying years if there is provision for accumulation of holiday with pay for not more than three consecutive years in an agreement sub between him, or a trade union representing him, and his employer or an organization representing his employer.

4. (2)        Subject to the provisions of sub-paragraph (3) the days of a holiday with pay which is granted under this Order shall be consecutive working days, being days on which the worker to whom such holiday with pay is granted would normally be called upon to work for the employer by whom such holiday with pay is granted.

4. (3)        The holiday with pay which any worker has earned in any qualifying year under this Order may be granted in two periods of consecutive working days.

4. (4)        Sunday, Good Friday. Christmas Day and a public general holiday shall not be reckoned in any holiday with pay granted under this Order and the days of such holiday shall be treated as consecutive notwithstanding that Sunday, Good Friday. Christmas Day or a public general holiday intervenes.

4. (5)        A holiday with pay shall not be granted to any worker during a period of notice given by his employer to terminate his employment.

Minimum holiday remuneration.
5. (1)         The minimum holiday remuneration payable to a worker employed at time rates shall –

(a)    in respect of each week of his holiday with pay, be the normal wages earned by him in respect of the last normal working week, prior to the commencement of such holiday, during which he worked for the employer by whom such holiday is granted; or

(b)    in respect of each day of his holiday with pay, be the normal wages earned by him in respect of the last normal working week referred to in sub-paragraph (a) divided by the number of working days constituting such normal working week.

5. (2)        The minimum holiday remuneration payable to a worker employed at piece or task rates or on a commission basis shall, in respect of each day of his holiday with pay, be 1/65 of the total normal wages earned by him in respect of the last 13 weeks (which need not be consecutive but in each of which he worked for the employer by whom such holiday is granted) prior to the commencement of such holiday.

5. (3)        Any worker to whom a holiday with pay is granted under this Order shall be paid by his employer, before the commencement of such holiday, the holiday remuneration payable to such worker in respect of the whole period of the holiday so granted.

Gratuity to casual workers.
6. (1)         Any worker who is employed as a casual worker shall, at or before the end of each qualifying year, be paid a gratuity by any employer by whom he is so employed if during that qualifying year –

(a)    he has worked for not less than 110 days for his employer; or

(b)    where the number of days of work cannot be ascertained, lie has earned, as normal wages from his employer, a sum equivalent to 110 times the established daily rate for the category of work performed by him in an area where there was such established daily rate; or

(c)    where the number of days of work cannot be ascertained and there is no such established daily rate, his name has appeared on the paybills of his employer for not less than twenty weeks.

6. (2)        The minimum gratuity payable to a casual worker under this paragraph shall be 3 per cent of the total wages earned by him during the year in respect of which, and in the service of the employer by whom, such gratuity is payable.

Holiday remuneration and gratuity on termination of employment.
7. (1)         Upon termination of the employment of any worker his employer shall –

(a)    where that worker earned any holiday with pay which was not granted before such termination, pay him a sum equal to the holiday remuneration which would have been payable to him if all such holiday were then being granted; or

(b)    pay him any gratuity which he earned and did not receive before such termination.

7. (2)        Where the employment of any worker is terminated not more than two weeks before the transfer of the undertaking in which he was employed at the time of such termination, any sum which is payable to him under sub-paragraph (1) shall, unless it is paid to him before such transfer, be paid by the person to whom the undertaking is transferred.

Sick leave with pay.
8. (1)         Any worker, other than a casual worker, who becomes ill sick leave during the first twelve months of his employment shall, if he has worked with pay. for his employer on not less than 110 days be entitled to be granted, during those twelve months, sick leave with pay of a duration of 1 day for every 22 days on which he so worked.

8. (2)        Any worker, other than a casual worker, who becomes ill after the first twelve months of his employment shall be entitled to be granted, in each period of twelve months after the first, sick leave with pay of a duration of 2 normal working weeks.

8. (3)        Notwithstanding the provisions of sub-paragraphs (1) and (2) a worker shall not be entitled to be granted sick leave with pay under this Order for any period of illness –

(a)    in respect of which he is entitled to be paid sick benefit or employment injury benefit under the National Insurance Act or compensation under the Workmen’s Compensation Act; or

(b)    in respect of which -

(i)    he fails to satisfy any condition relating to the granting of sick leave with pay contained in an agreement of the kind described in sub-paragraph (6);

(ii)    where there is no condition of the kind referred to in sub-paragraph (i), he fails to notify his employer of his illness during the first working day after its occurrence and, if the period exceeds three days to furnish his employer with a certificate from a registered medical practitioner stating that he is ill and specifying the period during which he will, by reason of such illness, be unable to perform his duties.

8. (4)        The minimum remuneration payable during any period of sick leave with pay granted to a worker under this paragraph shall be the amount which would have been payable to him as holiday remuneration under paragraph 5 if such period of sick leave with pay had been a period of holiday with pay.

8. (5)        For the purposes of this paragraph any fraction of a day which is obtained by dividing a number o days of work by 22 shall be reckoned as 1 day.

8. (6)        The agreement referred to in sub-paragraph (3) is an agreement –

(a)    between the worker to whom that sub-paragraph refers, or a trade union representing him, and his employer or an organization are presenting his employer: and

(b)    containing provisions for sick leave with pay or sick benefit which are, in a general way, more favourable to the worker than those contained in this Order.

Sick benefit to casual workers.
9. (1)       Subject to the provisions of sub-paragraph (3) any worker casual who is employed as a casual worker shall, if during the first qualifying year he becomes ill –

(a)    after he has worked for not less than 110 days for his employer or

(b)    where the number of days of work cannot be ascertained, after he has earned, as normal wages from his employer, a sum equivalent to 110 times the established daily rate for the category of work performed by him in an area where there was such established daily rate: or

(c)    where the number of days of work cannot be ascertained and there is no such established daily rate, after his name has appeared on the paybills of his employer for not less than twenty weeks,

be entitled to be paid by his employer sick benefit for the period of such illness or for the first 10 days thereof if the total period of his illness during that qualifying year exceeds 10 days.

9. (2)        Subject to the provisions of sub-paragraph (3) any worker who is employed as a casual worker shall, if he becomes ill during the second or any subsequent qualifying year, be entitled to be paid by his employer sick benefit for the period of such illness or for the first 10 days thereof if the total period of his illness during that qualifying year exceeds 10 days.

9. (3)        The provisions of sub-paragraph (3) of paragraph 8 shall apply in relation to the payment of sick benefit to a casual worker as they apply in relation to the grant of sick leave with pay to any other worker.

9. (4)        The minimum sick benefit payable to a casual worker in respect of each thy of any illness shall be I / 10 of 3 per cent of his earnings, in the employment of the employer by whom such sick benefit is payable, during the period –

(a)    from the commencement of the qualifying year in which such illness occurs to the date immediately preceding such illness, in the case of the first illness for which he is entitled to receive sick benefit during that qualifying year; or

(b)    from the resumption of employment after the last illness to the date immediately preceding such illness, in the case of the second or any subsequent illness for which he is entitled to receive sick benefit during that qualifying year.

Transfer of undertaking.
10.    Where any worker who was employed in any undertaking immediately before the transfer thereof from one employer to another continues to be employed in that undertaking immediately after such transfer, the period of employment of such worker in that undertaking shall, for the purposes of this Order, be treated as being unbroken by such transfer and the employer to whom that undertaking is transferred shall be liable for the granting of any holiday with pay or sick leave with pay, or the payment of any gratuity or sick benefit, earned by such worker under this Order and not granted or paid before such transfer.

Record to be kept.
11. (1) Every employer shall keep a record showing, as respects Record to
each worker employed to him –

(a)    the name;

(b)    the first day of employment;

(c)    the normal wages;

(d)    the duration (with dates) of any holiday with pay and sick leave with pay granted;

(e)    the remuneration paid during the periods of such holiday with pay and sick leave with pay;

(f)     the amount of gratuity and sick benefit paid (if any).

11. (2)        The particulars at sub-paragraph 1 (d) shall include any holiday with pay and sick leave with pay earned under the Holidays with Pay Order. 1970, now revoked, and not granted before the 1st day of June 1973.  L.N. 162/70

Saving.    
12.         Nothing in this Order shall be construed as preventing any worker from being –

(a)    granted holidays with pay or sick leave with pay of longer duration than that of the holidays with pay or sick leave with pay, as the case may be, to which he is entitled under this Order; or

(b)    paid in respect of any holiday with pay or sick leave with pay which he is granted under this Order, remuneration which is more than the minimum remuneration payable under this Order in respect of such holiday or sick leave; or

(c)    paid any gratuity or sick benefit which is more than the minimum gratuity or sick benefit to which he is entitled under this Order.

 

SCHEDULE
(Paragraph 3(2))
No, of days on which worker worked during qualifying year(s) Duration of holiday with pay
More than 220 days, in each qualifying year, for worker10
years service or more
3 normal working weeks.
More than 220 days 2 normal working weeks.
220 days or less, but not less than 110 days 1/22 of the number of days of work, so however, that any fraction of a day of holiday shall be reckoned as 1 day.