Why is Trading not Legal on Sunday? | Local

Aug. 20, 2018

People ask me this question very often, and there have been times when I answer bluntly, "I do not know!" This may come as a surprise to many since I have been known to be spearheading the employer community's desire to liberalise the statutory and cultural restrictions on Sunday trading for a few years now. Please allow me to explain why I sometimes opt for this rather strange answer.

In the 1961 Revised Laws of Dominica codex, there was a chapter (Cap.) 123 known as the Bank Holidays Ordinance which declared several days in the year to be holidays, i.e., banks would not open to the public, and transactions and contracts were not to be considered enforceable if made on those days. Those days are also referred to as Dies Non, the Latin equivalent of "a day where no legal business can be done, or a day that does not count." The substantive body of Cap 123 came into effect way back in 1907 and had been amended several times over the years, but Sunday was never included in the Schedule of Holidays in the 1907 Act, as amended, or in the 1961 Ordinance. Life continued in Dominica and people went about their business including going to work and church and everywhere else. I dare say that though Sunday was not a public holiday back then, more people went to church then than now, but this can be challenged of course. Let's fast track to the last decade of the 20th century, and the Dominica Freedom Party under the Prime Ministership of Dame Mary Eugenia Charles is the government. In May of 1990, during the "Heat Up" to national elections, the ruling party brought a Bill to Parliament with the intention of repealing the Bank Holidays Ordinance, and replacing it with the new Public Holidays Act, #12 of 1990. The private sector was not informed of the existence of the Bill, nor invited to discuss the proposed changes. The Bill included a new Schedule of public holidays. Here are some interesting wordings the DFP included in this new Bill which became law in May 1990, and coded Chap. 19:10 of the Revised Laws of Dominica, 1990:

(1)A public holiday under this Act shall be kept as a close holiday [Dies Non] [my emphasis] in all departments and offices of the public service and all business places in the State

(2)In this section the expression "business place" means any bank, shop, store, factory, agency or other place of business or employment in the State, and includes any place prescribed by Order of the Minister to be a business place.

(3)The Minister may by Order exempt any place of business from the application of this section subject to such conditions and qualifications as he may think fit.

4.Where the day or the final day on which a person is under any obligation to make any payment or to do any act falls on a public holiday such person shall not be compelled to make the payment or do the act on such public holiday; and the payment may be made or the act done on the next following day not being itself a public holiday, and the making of such payment or doing such act on such following day shall be as valid a performance of the obligation as if it had been done on the public holiday.

5.The President may by Order -

(a)amend the Schedule

(d)exempt any area of the State or any office of the public service or business place from the application of the provisions or certain specified provisions of this Act, either wholly or partially and either absolutely or subject to conditions.

6.Any person after the coming into operation of this Act who keeps open any business place in contravention of this Act, is liable on summary conviction to a fine of three thousand dollars.

SCHEDULE

Every Sunday

New Year's Day (1st January)

Carnival Monday & Carnival Tuesday- The two days immediately

preceding Ash Wednesday

Good Friday

Easter Monday

Labour Day (1st May)

Whit Monday

The first Monday of August

Independence Day (3rd November)

Community Day (4th November)

Christmas day (25th December)

Boxing Day (26th December)

As you will notice from the Schedule above, no description or explanation was offered for the inclusion of "Every Sunday" in the revised Schedule. Every other holiday has a description included in its title. For example, "Carnival Monday" is a clear reference to a holiday for carnival; "Whit Monday" is a holiday for the Whitsuntide (Pentecost) observation; "Boxing Day " is a holiday for [unboxing] the Christmas gifts; "The first Monday of August" has been renamed "Emancipation Day" and is a holiday to commemorate our freedom from Plantation Slavery. Read the above Schedule again! Can you figure the reason why Sunday is included in the Schedule? A reading of the original Bill of 1990 provided no explanation for Sunday's inclusion. Efforts to obtain a copy of the Hansard have failed so far. There is absolutely nothing in our history which occurred on a Sunday thus requiring the legislation of the day as a national holiday every week. Not even Jesus Christ asked that the first day of the week be kept solemn.

There is a somewhat-popular thinking among certain faith communities in Dominica that the inclusion of Sunday was in direct relation to the expressed need of Christian Worshipers to secure a day for worship. So let's explore this thinking. I take you to the Protection of Employment Act of 1977, [Chap. 89:02 of the Revised Laws of Dominica, 1990]. At Section 10 of this Act can be found the following;

10.An employee shall be deemed not to be guilty of serious misconduct pursuant to section 5 or misconduct or failure to perform his duties in a satisfactory manner pursuant to section 9, by reason of:-

(e)his being absent on Saturdays or Sundays to take part in religious worship.

Now, this is very important. Remember, the Act from which we just quoted dates back to 1977. This Act prevents an employer from terminating the employment of an employee where the employee is absent from work for purposes of participating in religious worship on Saturday or Sunday. This Act guarantees freedom from employment disciplining for absences for religious purposes. So, if this was in place from 1977, what was the need to put Sunday in a schedule of holidays in 1990; 13 years later? Surely, Sunday cannot be a "holiday" twice! Surely, Sunday was not included in the 1990 Public Holidays Act for purposes of religious worship, as this was already taken care of 13 years earlier! Surely, for a law to give preference to Sunday only for purposes of religion would be bordering on unconstitutionality. And even if the law did intend to say just that, it has failed because, as I said earlier in this article, more people went to church before the 1990 inclusion, than after. It therefore seems tempting to conclude that the inclusion of Sunday in the Public Holidays Act in 1990 did not generate any addition religious freedom than what already obtained in the 1977 Act. Someone suggested that Sunday is a holiday for "SEWO", and not to take our "WOES" to the Lord!

Let's turn a leaf and examine how this restriction on trade every Sunday advances or stagnates our economy. The Growth and Social Protection Strategy [GSPS], a middle-term economic and social strategy construct designed by the current government to inform Dominica's post-banana and open-trade developmental thrust, has described our economy as biped. The two drivers of our economy are listed as agriculture and tourism. Efforts were made in the last decade to add ICT to the list, thus creating an economy balanced on a tripod, but this did not materialise. Agriculture, as one of the drivers, has been outstripped by remittances as a major contributor to foreign exchange inflows. Tourist spending inflows have been led by the annual cruise ship season. Yet, how common it is to see cruise ships anchored alongside the births in Dominica on Sunday but the commercial sector is denied the opportunity to trade? One therefore cannot ignore the questions:

How do statutory restrictions on Sunday trading assist the cruise travel business in Dominica?

How do these restrictions negatively impact the efforts of the Invest Dominica Authority to attract foreign investments into Dominica?

How much does it cost Dominican business and industry to violate the legislation to open on Sunday?

How do we as a people carve out a path to development when a holiday-of-non-descript is calledupon our people every week?

How has the restriction on Sunday trading aided the GSPS?

As stated earlier, the inclusion of Sunday in the Schedule of Public Holidays took place in May 1990 and, though the private sector has been making occasional reference to the limiting impact of this inclusion, it was not till after 2006 that greater effort on lobby for change began. A casual walk-through in the City, Town and Villages nowadays will quickly surface the growing number of variety stores, supermarkets, food outlets, and hospitality ventures which require more flexible operating hours, and which have become the standard feature of our landscape. These businesses did not just appear out of nowhere. Rather, they are a direct response to the demand by customers for more flexible shopping hours. Gone are the days when every store in Roseau closed at 1pm and reopened at 2pm. Gone are the days when banks closed for lunch. Gone are the days when you could not find a single supermarket opened after 4pm. All of these changes are simply led by the changing pattern of customer shopping preferences. In Dominica, and globally, we are witnessing a buyers' economy; a customer-focussed environment. Businesses simply respond to the wishes and desires of the consuming public all the time. The statutory restriction on Sunday trading is now a major limiting factor in businesses serving their customers, and in them creating short-term and temporary employment opportunities to complement their regular staff numbers. The Dominica Employers' Federation therefore began a process of engaging the necessary partners and competent authorities to address the trading week with a view to assisting the creation of a better business environment, aid the national reform process which was being spearheaded by the Reform Management Unit, and help achieve the goals stated in the GSPS and its successor strategies.

The request for legislative review now before the law makers [including opposition Parliamentarians] has been to consider the removal of Sunday in the Schedule of Public Holidays, primarily, and other legislation where a similar restriction is created or recognised.

This needed review is against the backdrop of the need to create additional commercial hours, reduce overtime costs, generate weekend employment, and maximize the benefits from the cruise business which calls here on Sunday, all toward creating a 24/7 economy. The Dominica Employers' Federation, having recognised the necessity for labour market reform to meet the challenges of the changing world economy, and to assist the creation of a 24-hour economy as a platform for service-led growth, has painstakingly undertaken an exercise to create a document, in Parliamentary Bill format, to amend, in several enactments, provisions relating to hours and days of work in order to facilitate the implementation of flexible working arrangements in the jurisdiction.

The DEF has petitioned the Minister and Ministry of Tourism, Minister for Labour, Cabinet Secretary and Secretariat, Prime Minister, among others.

It is important to note here, that notwithstanding the DEF's lobby for the liberalisation of the restrictions on Sunday trading as contained in the Public Holidays Act, the DEF is quite satisfied with the provisions in chap.89:02 which states:-

(e) his being absent on Saturdays or Sundays to take part in religious worship.

The DEF, and by extension the private sector, has never requested the suspension of legislated religious freedoms as contained in the Protection of Employment Act, Chap. 89:02. After all, employers do worship their God too! The DEF fully supports the provision in law for every employee to be allowed a full day off in every week for purposes of rest and worship. This day can be decided upon in dialogue between employer and employee.

For those who advocate that the removal of Sunday from the Schedule will result in a pay reduction since work done on Sunday will no longer qualify for double-time, we wish to remind them that double pay is not currently part of guaranteed pay. Double pay becomes operational only when work is done on a holiday. If one never works on a holiday, he will never become entitled to double pay. So there will be no pay reduction if one does not work on a holiday. And there is no pay reduction if such pay is not part of guaranteed pay. It's like a sales commission employee who generates no sales for a pay period. He gets no commission because none it due to him. The same argument applies for holidays. The proposal of the employer community is for double pay to apply where the employee works on his weekly day of rest. This will amount to double pay for those whose weekly day of rest is Sunday, and work on Sunday. The same will apply for those whose rest is on Saturday, but work on Saturday. The same applies for the other days of the week. Additionally, the employer community supports a 40-hour work week, and the entitlement to overtime for work done after those 40 hours. Such a new regime will reflect equality, but also drive productivity and earnings for employees who are productive.

The DEF's template for "flexible working arrangements in Dominica" has been placed before the incumbent Government for many moons now, and it is hoped that with political will, some movements can be made.

By A. Chris JOSEPH AMC, MICM, FCMI, SHRM; Executive Director, Dominica Employers' Federation, and Senior Faculty, People Management, BTC College