January 13, 2021

Thank you, Madam
President. Thank you, Senator Smith.
The President: We will now move on to item nu mber 4.
Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President , I move that the Bill ent itled
Investment Funds Amendment Act 2020 be now read
a second time.

The Clerk: Did she do this one?

The President: She did this one. She is now on 5.

The Clerk: It should be 5?

The President: Yes. In fact it is. Senator Simmons
had done both together.

The Clerk: Oh, she did them together?

The President: She did them together, yes.
[Inaudible interjection]

The President: Just clarity from Mr. Somner, we are
on item number 5, Investment Funds [Amendment Act
2020]. The Clerk: Yes.

The President: Sena tor Hodgson, you may carry on.

BILL

SECOND READING

INVESTMENT FUNDS AMENDMENT ACT 2020

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I am pleased to present the
Bill entitled Investment Funds Amendment Act 2020
for the consideration of Senators.
The Bill seeks to make changes falling in two
categories: (1) drafting changes of a housekeeping
nature designed to achieve consistency and enhanc e
certainty; and (2) changes designed to ensure the
scope of the regime remains aligned with assurances
provided to the European Commission and the Eur opean Union’s Code of Conduct Group in 2019 and early this year.
Madam President, the implementation exper ience that the Authority has gained since the 2019
Amendment Act came into force on 1 January of this
year and the transitional period provided for in the Amendment Act ended on 30 June have confirmed
that there are certain minor, yet important, revisions to
the Act and the associated Definition Order that need
to be made. These amendments will ensure the i nvestment funds regime is administered efficiently and
in a manner consistent with the commitments given to representatives of the European Commission and,
ultimately, the European Union’s Code of Conduct
Group [Business Taxation] .
Madam President, the Government and the
Bermuda Monetary Authority are mindful of the sens itivity associated with amending the Investment Funds
Act 2006, given the vital role that the carefully constructed Amendment Act played in securing Berm uda’s removal earlier this year from the European U nion’s list of non -cooperative jurisdictions for tax purposes.
Madam President, the Authority has apprised
the team within the EC’s [ European Commission] DG
TAXUD of the amendments which are proposed and provided them with a copy of the d raft Investment
Funds Amendment Bill 2020. The Authority made it clear that the amendments do not change the scope
of the 2019 IFA Amendments. The Team at the EC
DG TAXUD have communicated that , while their
comments cannot preclude a different assessment by member states, they did not expect the changes to
raise concerns.
Madam President, the proposed amendments
are as follows:



Bermuda Senate A. Amendments of a housekeeping nature:
1. To introduce a requirement for an oper ator of a private fund to ensure that there is
a person resident in Bermuda who has
access to the books and records of the fund. This obligation is consistent with
those that apply to all other registered
funds and should have been included in
the Amendment Act.
2. To clarify that the annual filing for all re gistered funds is due to be made within six
months of the financial year end.
3. To remove provisions specific to the appointment of fit and proper service pr oviders Professional Class B funds , as the
Amendment Act addressed this obligation
for all classes of funds.
4. To align the cross -referencing to applic ation fees set out in the Bermuda Monetary
Authority Act 1969.
5. To introduce powers for the Authority to
amend or exempt from payment any fee
as it may determine. These powers are
consistent with those under the Insurance
Act 1978.
6. To remove the additional obligation for
Professional Class A funds and Profe ssional Class B funds, to appoint a regi strar as this ob ligation will be captured for
all funds in the proposed amendments
that follow .
7. To impose an obligation on all authorised
and registered funds to appoint a regi strar. Madam President, existing funds
have six months of the date of the coming
into operation of the Investment Funds
Amendment Act 2020 to comply with this
requirement.
8. Finally, to ensure that LLC funds are subject to a comparable obligation as unit
trust funds, company funds and partnership funds.
B. Madam President, amendments to maintai ning alignm ent of scope are as follows:
1. The definition of “company fund” is to be
amended to include structures recently i ntroduced under the Incorporated Segr egated Accounts Companies Act 2019.
2. Paragraph 3(i) of the Definition Order will be amended to clarify that open- ended i nvestment funds listed on a stock exchange are not excluded from the IFA r egime. Madam President, when the Defin ition Order was developed, the intent b ehind paragraph 3(i) was to ensure that structures, such as closed -ended [inves tment funds] li sted on a stock exchange,
were not inadvertently brought into the scope. The Authority has recognised, however, that the existing wording may
also apply to open- ended investment
funds listed on a stock exchange, which
was not the purpose. The proposed wor ding reflects the precise intent of this r equirement.
Madam President, the Authority has consulted
with industry stakeholders on the proposed changes .
And the feedback received was cosmetic in nature,
which suggested that the stakeholders do not have
concer ns with the amendments that are being pr oposed.
Madam President, with those introductory r emarks, I now present the Bill entitled the Investment Funds Amendment Act 2020 and welcome comments
from other Senators.
Thank you, Madam President.

The President: Thank you, Senator Hodgson.
Would any Senator care to speak?
Oh, before I do, can I just advise Senators
that Mr. Lamb has reported that the streaming is not
working at the moment; however, someone is working
on it. But the radio is, so we are being broadcast.
So would any Senator care to speak on this
Bill?

Sen. Marcus Jones: Yes, Madam President.

The President: Senator Jones, you have the floor.
Sen. Marcus Jones: Thank you, Madam President.
The Opposition surely supports this amendment to the leg islation. And in this Government’s i ntent to be in alignment with international standards, a
variety of administrative and housekeeping upgrades
as it relates to definitions, filing dates, et cetera, are
necessary.
Thank you, Madam President.

The President: Thank you, Senator Marcus Jones.
Would any other Senator care to speak on
this Bill?
No.
Then, Senator Hodgson, it is over to you.

SUSPENSION OF STANDING ORDER 26

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that [Standing O rder] 26 be suspended in respect of this Bill.

The President: Is there any objection to that motion?
No objection.

[Motion carried: Standing Order 26 suspended.]

104 13 January 2021 Official Hansard Report

Bermuda Senate BILL

THIRD READING

INVESTMENT FUNDS AMENDMENT ACT 2020

Sen. Arianna Hodgson: Madam President, I move
that the Bill entitled Investment Funds Amendment Act
2020 be now read a third time.

The President: Is there any objection to the third
reading?
No objection.
Sen. Arianna Hodgson: Madam President, I move
that the Bill do now pass.

The President: It has been moved that the Bill ent itled Investment Funds Amendment Act 2020 do now
pass.
Is there any objection to that motion?
No objection.
The Bill is passed.
[Motion carried: The Investment Funds Amendment
Act 2020 was read a thi rd time and passed.]
The President: Thank you, Senator Hodgson.
Now moving on to item number 6, which is the
second reading of the Bermuda Monetary Authority Amendment (No. 2) Act 2020. And that is also in the
name of Senator Hodgson, the Junior Minister of Finance.
You have the floor.

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that the Bill entitled
the Bermuda Monetary Authority Amendment (No. 2)
Act 2020 be now read a second time.

The President: Is there any objection to that motion?
No objection.
Carry on, Senator Hodgson.

BILL

SECOND READING

BERMUDA MONETARY AUTHORITY
AMENDMENT (NO. 2) ACT 2020
Sen. Arianna Hodgson: Thank you.
I move that the Bill entitled the
Bermuda Monetary Authority Amendment (No. 2) Act 2020 be now
read the second time.
The President: Are there any objections? No objections.
Continue on, Minister.
Sen. Arianna Hodgson: Madam President, I am
pleased to present the Bill entitled the Bermuda
Mone tary Authority Amendment (No. 2) Act 2020. The
purpose of this Bill is to amend the Fourth Schedule to the Bermuda Monetary Act 1969 to clarify the obligation relating to payment of certain fees by persons
licensed, or proposed to be licensed, under the Digital
Asset Business Act 2018 and the Insurance Act 1978.
Madam President, by way of background, the
Bermuda Monetary Authority undertook a comprehensive review of its target operating model, together wit h
its fee structure, in 2018. At the end of the review pr ocess, together with a comprehensive consultation pr ocess, the Bermuda Monetary Authority Amendment
(No. 3) Act 2018, which contained fee schedules for
the years 2019, 2020 and 2021, was passed by th e
Legislature. Fees related to the digital asset business sector were enacted under the Digital Asset Business
Act 2018.
Madam President, subsequent to the impl ementation of the fee changes, the Authority conducted
a review of the 2021 fee schedule, and t hey observed
that a small number of fees required alignment and/or
additional precision as follows:
Insurance Fees. It is proposed to amend the
Act to adjust the 2021 registration fees to be paid by class 1 through class 3 general business, class 3A
general business, class 3A run -off general business,
and class 3A affiliated insurers and reinsurers. Ma dam President, presently, the registration fees regar ding these entities range from $2,500 to $25,000. It is
proposed to amend Part C of the Fourth Schedule of
the Act by adjusting the registration fee to $2,250
through $25,920 for this category of insurers to bring
the fees into alignment with the corresponding annual
fees as originally intended.
Revisions to be made to the registration fees
for class 3A insur ers carrying on general business
and/or a class 3A affiliated insurer.
Madam President,
it is proposed to amend Part C of the Fourth Schedule
of the Act to revise the registration fees for a class 3 A
insurer carrying on general business and/or a class 3A a ffiliated insurer. Presently, the registration fees
regarding these entities range from $25,000 up to
$45,000 based on gross premiums. It is proposed to
amend Part C of the Fourth Schedule of the Act by adjusting the registration fee downwards to $24,550
up to $44,500 for this category of insurers to bring the
fees into alignment with the corresponding annual
fees as originally intended.
Revisions to be made to the registration fees
for a class 3A insurer carrying on run- off general bus iness. Madam President, it is proposed to amend
Part C of the Fourth Schedule of the Act to revise the
registration fee for a class 3A insurer carrying on runoff general business. Presently, the registration fee for


Bermuda Senate this class ranges from $25,000 up to $40,000 based
on gross reserves. It is proposed to amend Part C of
the Fourth Schedule of the Act by adjusting the fees to
$24,550 up to $44,500 for this category of insurer to
bring the fees into alignment with the corresponding annual fees as originally intended.
Application f ee, commercial solvency self -
assessment. There will also be a requirement to a djust the application fee covering an exemption and/or
a modification to a commercial solvency self -
assessment from $10,000 to $1,000 in accordance
with the Authority’s original intent.
Digital asset business fees, annual fee. Madam President, it is proposed to amend Part C of the Fourth Schedule of the Act to remove the requirement for a digital asset business provider to calculate and
pay annual fees to the Authority based on es timated
client receipts. Instead, a digital asset business pr ovider will be required to pay annual fees based on cl ient receipts.
There will also be a requirement to amend
Part C of the Fourth Schedule of the Act to make m inor adjustments to various parts of the Fee Schedule
to align the structure of the Schedule in certain parts
with the rest of the Fee Schedule and to renumber the
relevant provisions accordingly.
Madam President, I wish to emphasise that
the amendments will result in the establishment of fees that were the subject of previous engagement
with industry stakeholders. Indeed, the Bill will ensure
that the third yearly instalment of the graduated fee
structure that was agreed upon in the year 2018 consultation process and subsequently passed by the
Senate Chamber will come into force on 1 January
2021 as intended.
Madam President, in closing, I would like to
thank all of those persons within the Bermuda Monetary Authority, the Attorney General’s Chambers and
the Ministry of Finance who have assi sted with the
development of this Bill.
Madam President, I now present the Bill ent itled Bermuda Monetary Authority Amendment (No. 2)
Act 2020, and welcome comments from other Sena-tors.

The President: Thank you, Senator Arianna Hodgson.
Before I turn it over to other Senators to r espond, I would just like to let you know that the
streaming is now working. So we are mainstreaming
live.
Would any other Senator care to speak on
this Bill?

Sen. Marcus Jones: Yes, Madam President.

The President: Senator Mar cus Jones, you have the
floor.
Sen. Marcus Jones: Thank you, and thank you as
well to the Junior Minister for giving us the present ation of this particular Bill.
We in the Opposition have no objections to
the legislation, as we recognise that the fee adj ustments were necessary. But we do, as we were listening to the brief, recognise that this legislation is going
to be passed after the 1
st of January when it was supposed to be made active. I guess my question to the
Junior Minister is, Will this cause any issues, or will it
be problematic in the actual operations and the official
date of commencement, being that we are now pas sing this after January the 1st?
Will an amendment be required to make sure
that everything is correct and official? Or is that a
moot point? I am not sure; that is why I am asking this
question, being that we are doing this after the fact.
And I would appreciate some clarifications for that
from the Junior Minister.
Thank you, Madam President.

The President: Thank you, Senator Marc us Jones.
Would any other Senator care to speak on
this Bill?
No. Then, Senator Hodgson.
Sen. Arianna Hodgson: Thank you, Madam Pres ident.
I can provide some additional clarity if need
be at the next meeting. But I do believe that the Mini stry has sought the necessary advice in terms of moving things forward.

The President: Thank you.
Senator Marcus Jones, my understanding,
because of the change administratively, certainly this Bill was presented and passed in the House in D ecember. And I believe, I have been told, that it may
just be an administrative issue. But that will be ad-dressed in due course, and you will have an answer to
that question.

Sen. Marcus Jones: I appreciate it. Thank you.

The President: Senator Arianna Hodgson, if there are
no ot her questions from any other Senators, then I
suggest you move the Bill now.
Senator Hodgson, you have the floor.

SUSPENSION OF STANDING ORDER 26

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that [Standing O rder] 26 be suspended in respect of this Bill.
The President: Is there any objection to that motion?
No objection.

106 13 January 2021 Official Hansard Report

Bermuda Senate [Motion carried: Standing Order 26 suspended.]

BILL

THIRD READING

BERMUDA MONETARY AUTHORITY
AMENDMENT (NO. 2) ACT 2020

Sen. Arianna Hodgson: Madam P resident, I move
that the Bill entitled the Bermuda Monetary Authority
Amendment (No. 2) Act 2020 be now read for the third
time.
The President: Is there any objection to that motion?
No objection.

Sen. Arianna Hodgson: Madam President, I move
that the Bill do now pass.

The President: It has been moved that the Bill ent itled the Bermuda Monetary Authority Amendment
(No. 2) Act 2020 do now pass.
Is there any objection to that motion?
No objection.
The Bill is passed.

[Motion carried: the Bermuda Mon etary Authority
Amendment (No. 2) Act 2020 was read a third time and passed.]

The President: Thank you, Senator Arianna Hodgson.
We are now moving on to item number 7 [under Orders of the Day], and that is the second reading
of the Tax Reform Commission Amendment Act 2020.
And that too is in the name of the Junior Minister of
Finance.
Senator Hodgson, you have the floor.

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that the Bill entitled
the Tax Reform Commission Amendment Act 2020 be
now read a second time.

The President: Is there any objection to that motion?
No objection.
Carry on, Senator Hodgson.

BILL

SECOND READING

TAX REFORM COMMISSION
AMENDMENT ACT 2020
Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam P resident, I am pleased to present the
Tax Reform Commission Amendment Act 2020 for the
consideration of Senators of this Chamber.
Senators will recall that in the Government’s
2020 Speech from the Throne it was announced that:
“During this Session, the Government will lay
the foundation for the necessary changes to our sy stem of taxation, which . . . ” (fosters) “economic inequality while stifling much -needed economic growth.
The inequality laid bare by the Pandemic’s impact
cannot be an accepted feature of the new economy;
therefore, the Tax Reform Commission will be invited
to update its recommendations made in 2018 in light of the new economic realities created b y the Pandemic.”
Madam President, Senators will recall that in
October 2017 the Government established the Tax
Reform Commission by way of the Tax Reform Co mmission Act 2017. The objective of the Tax Reform
Commission was to examine Bermuda’s tax system
for the purpose of determining any measures that may
be taken to best enable a system of taxation and re venue collection that is equitable, effective, efficient, competitive and transparent, and to prepare and submit its report and recommendations to the Min ister of
Finance. The Tax Reform Commission Report was
made available to the Government in October 2018
and included several recommendations. The Gover nment considered all of the recommendations in the
Tax Reform Commission Report and introduced some
measures in the 2019/20 Budget.
Madam President, as mentioned in the
Throne Speech, the Ministry will provide the legislative authority and the revised terms of reference for the
Tax Reform Commission to update recommendations
made in 2018 to reflect the current economic circumstances and the recent developments in international
tax policy on Bermuda’s international competitiveness.
In order to meet this policy objective, it is proposed to
amend section 3 of the Tax Reform Commission Act
2017 to allow the Minist er of Finance to appoint a
subsequent Tax Reform Commission when the period
of existence and operation of the prior Commission
has expired and it has been dissolved. This will pr ovide that the current provisions of the Act will apply to
the subsequent Comm ission as it applied to the orig inal Commission.
Madam President, as mentioned previously,
the objective of the Commission, as included in subsection (3) of the Act, is to advise the Government of
any measures that may be taken to best enable an
equitable, effective, efficient, competitive and transparent system of taxation and revenue collection, and
to prepare and submit its report and recommendations to the Minister of Finance. The Act also provides for
the following: the composition of the Commission; t he
functions, operations and procedures of the Commi sBermuda Senate sion; the financial and audit provisions, including r eporting requirements of the Commission; protection
from liability and preservation of confidentiality for the
Commission; and other items.
Madam Pres ident, these provisions of the Act
will apply to any new Tax Reform Commission created by this amendment, which empowers the Minister of
Finance to appoint another Tax Reform Commission
[TRC]. The Government strongly believes that tax r eform must have the widest possible input, and it is our
view that we can work with all stakeholders to design a system that enhances Bermuda’s global compet itiveness and ensures fairness. Similar to when we
formed the first TRC, the new Commission will seek to
draw participa nts from international business, local
business, trade unions, hoteliers and academia. Its
mission will be to conduct a wholesale review of our
system of revenue collection and taxation, and to
make recommendations to the Minister of Finance on
revenue and tax reform.
The Government will closely evaluate and
consider all recommendations included in any new
Tax Reform Commission Report. And as per this
Government’s normal custom and practice, the appropriate consultation with the various stakeholders
will be conducted before any major changes are made
to our tax system.
Madam President, as soon as this Bill is
passed in the Legislature, the Government will select
the members of the TRC early this year and provide
the terms of reference. The Commission will then
have six months, starting from the date of appointment of the Commission, to complete their work.
Madam President, in closing, as this Gover nment begins its second term in office, the proposed
re-establishment of the TRC to examine and provide
recommendations to reform our tax system represents another step in our efforts to rebuild Bermuda with
Bermudians at heart, as promised in our election platform.
With those introductory remarks, Madam
President, I now read for the second time the Bill ent itled th e Tax Reform Commission Amendment Act
2020 and welcome comments from other Senators.

The President: Thank you, Senator Hodgson.

Sen. Arianna Hodgson: Thank you.

The President: Would any other Senator care to
speak on this Bill?
Sen. Marcus Jones: Yes, Madam President.

The President: Senator Marcus Jones, you have the
floor.
Sen. Marcus Jones: Thank you. I believe that we are all aware from the initial
Tax Reform Commission that was set up in 2017 that
its work was very important. We realise that from their
inception they were able to present a 72- page report
that advised the Government on tax reform enhanc ements. And we also recognise that in a crisis period
that we are living in right now, where government coffers are at an all -time low, we understand the cha llenge that the Government has. On one hand, it cannot overburden its citizenry at a time when folks are
losing jobs, businesses are stretched; at the same time it recognises that revenues have decreased si gnificantly.
In light of the first work that was done back in
2017, there were a number of different recommendations made. And that was from three years ago. And if
you look at the full body of this 72- page report, very
few of the recommendations that were submitted were
actually implemented, or acted on. In fact, we observed in a statement made in the Fiscal Responsibi lity Panel of 2019, and I will quote from them: They felt
that [for] the present Government [it was a] “missed opportunity” to be able to implement some of these
changes. This woul d have represented almost $140
million of tax increase. And we surely do encourage
the Government, when they are embarking on putting
this new Commission together, that this will not just be an exercise in futility —trying to satisfy all of the community that work is being done, when in actual fact we
see in the initial report three years since which very
little has been acted upon.
And secondly, allow me to make this observ ation: We were able to listen to remarks made by the
Minister of Finance where he said quite candidly that
there will be no increase in taxes in the 2021/22
Budget. So, Madam President, I ask the question . . .
If there is going to be no increase or change in the tax structure as it sits today, I would say that commissioning this committe e to be formed as early as now to
make recommendations which in six months’ time (being that we are in the midst of a crisis) will be made
obsolete, I would ask the question: Is it a good dec ision or is it sound judgment to set up a Commission
now when the ir services will be far more (shall we say)
relevant and important, say, eight to ten months from
now? Because we can all see and have experienced
that this pandemic has changed the economic lan dscape on a week -to-week, month- to-month basis.
So I would c aution the Government in its endeavours to inform and give information to the public
and to itself recommendations and advice as far as tax reform is concerned, that we ensure that when
they do hand the reins over to this Commission to
come up with recommendations it will be done in a
timely fashion. And not only in a timely fashion, but it
will be implemented, some of these recommendations, so that we do not go through another exercise (as I said before) in futility when we go through the
108 13 January 2021 Official Hansard Report

Bermuda Senate procedures and the stats, but do not actually impl ement it.
So I am looking for some sort of assurance
from the Government that they will, once receiving
these recommendations, actually put them to work.
Notwithstanding those comments, we do support this legislation. And I thank you, Madam Pres ident, for this time.

The President: Thank you, Senator Marcus Jones.
Would any other Senator care to speak on
this Bill?
Senator Michelle Simmons, you have the
floor.
Sen. Michelle Simmons: Thank you, Madam Pres ident.
We all know how much the financial landscape has changed in Bermuda over the past year. And it has been two years since the former Tax R eform Commission submitted its report —that is, in N ovember 2018, to be precise. As Senator Jones said
earlier, a number of the recommendations in that r eport have not really been touched. Although there
were promises that we would be seeing a general
services tax imposed, I do not think this is the time for
that. But there were many, many other recommenda-tions in that report.
I do not think any of us believes that tax r eform is something that will happen very swiftly. But the
Government is on the right path in terms of trying to
ensure that Bermuda has a system of taxation and
revenue collection that is fair. They want an equitabl e,
effective, efficient, competitive and transparent sy stem. That is what was said when the initial Tax R eform Commission was established.
I certainly support the re- establishment of a
Tax Reform Commission, especially since we have
such different financi al circumstances right now. And
Government is wise to call on the experts to make recommendations for its consideration. However, I
too, like Senator Jones, would like to see progress
made in terms of enacting recommendations and not just seeing these things sit in a nice, glossy report on
a shelf.
So with those comments, I definitely agree the
Government is wise to re- instate a Tax Reform Co mmission. But I also call on them to move forward once the recommendations are made, after they have been
considered, and let us see some change in terms of
how we collect revenue for Government.
Thank you, Madam President.

The President: Thank you, Senator Michelle Si mmons.
Would any other Senator care to speak on
this Bill?
No. Then it is over to you, Senator Hodgson.
Sen. Arianna Hodgson: Thank you, Madam Pres ident.
I would just like to make a comment that we
will continue to monitor the effects of the current pandemic, and as we move forward we will make the necessary changes. So rest assured that we will do
our best to make sure that the recommendations put
forward which work in line with our larger goals of
boosting the economy do come into effect.

SUSPENSION OF STANDING ORDER 26

Sen. Arianna Hodgson: Madam President, I move
that [Standing Order] 26 be suspended in respect of
this Bill.

The President: Is there any objection to that motion?
No objection.

[Motion carried: Standing Order 26 suspended.]

BILL

THIRD READING

TAX REFORM COMMISSION
AMENDMENT ACT 2020

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that the Bill entitled
Tax Reform Commission Amendment Act 2020 be
now read a third time.

The President: Is there any objection to a third reading?
No objection.
Sen. Arianna Hodgson: Madam President, I move
that the Bil l do now pass.
The President: It has been moved that the Bill ent itled the Tax Reform Commission Amendment Act
2020 do now pass.
Is there any objection to that motion?
No objection.
The Bill is passed.
[Motion carried: The Tax Reform Commission
Amendm ent Act 2020 was read a third time and
passed.]

The President: Thank you, Senator Arianna Hodgson.

Sen. Arianna Hodgson: Thank you, Madam Pres ident.



Bermuda Senate The President: We now are moving on to item nu mber 8 [under Orders of the Day]. It is the second rea ding of the Marine and Ports Services Act 2020. And
that is in the name of Senator Curtis Richardson, the
Junior Minister of Transport.
You have the floor.

Sen. Curtis Richardson: Madam President, I move
that the Bill entitled Marine and Ports Services Act
2020 be now read a second time.

The President: Is there any objection to that motion?
No objection.

BILL

SECOND READING

MARINE AND PORTS SERVICES ACT 2020

Sen. Curtis Richardson: Madam President, the Bill
for consideration is the Marine and Ports Services Act
2020 . The Bill makes amendments to the current M arine Board Act 1962, which is 58 years old and r equired extensive modernisation to address gaps in our
local maritime legislation and to ensure Bermuda is aligned with the International Maritime Organization’s
[IMO] conventions and protocols.
Madam President, the International Maritime
Organization’s primary purpose is to develop and
maintain a comprehens ive regulatory framework for
shipping. Its remit includes safety, environmental co ncerns, legal matters, technical cooperation, maritime security, and the efficiency of shipping. The IMO uses
five main instruments, or tools, in exercising its functions: (1) conventions, (2) protocols, (3) recommendations, (4) resolutions, and (5) codes and guidelines.
Contracting parties to the IMO instruments are expected to implement the agreed intentions of the IMO domestically by enacting laws and regulations and
implem enting procedures as necessary to meet r equired standards. Ratification by the signatory states
ensures that the uniform regulatory framework obtains globally.
The United Kingdom is the signatory and contracting party to the IMO instruments for itself, it s
Overseas Territories and Crown Dependencies; and
in that way Bermuda is also responsible for meeting
the obligations and responsibilities of the IMO instr uments.
Madam President, by resolution on 4 December 2013, the IMO adopted the III Code made by IMO
Resolution A.1078(28) , which provides a global
standard to enable states to meet their obligations. Its objective is to create uniform standards intended to enhance maritime safety and protect the marine env ironment and develop measures necessary for givi ng
full and complete effect to the relevant IMO instr uments. At the same time, the IMO adopted the fram e-work and procedures for the IMO Member State Audit
Scheme [IMSAS] . This represents a change from a
voluntary to a mandatory audit scheme and uses the
III Code as its basis. Audits for all states will take
place every seven years.
The first mandatory audit for the UK and her
Overseas Territories and Crown Dependencies will
take place in February 2021. Upon completion of the
III Code audits of all member st ates, the IMO will publish the results of each member state for wider circul ation. The UK Government as the signatory is responsible for implementing the III Code requirements
across the British Territories and coordinating the I MSAS audit process for thei r Red Ensign Group [REG ]
shipping administrations. Bermuda is a part of the REG as a Category 1 shipping registry.
Madam President, to properly implement and
enforce Bermuda’s rights, obligations and responsibil ities with respect to the relevant IMO instr uments, our
legislation, regulations, policies and procedures must be reviewed, debts identified, responsibilities clarified
and remedies put in place.
Madam President, in order to raise awareness
of the importance of the III Code to the Bermuda mar itime industry, meetings with all relevant stakeholders
have been held over the past years under the spon-sorship of the Bermuda Shipping and Maritime A uthority [BSMA]. The purpose of this meeting was to
discuss establishing a forum for developing the necessary m easures to address IMSAS audit requir ements as an all -inclusive national initiative.
Madam President, the Government of Berm uda is the primary state party and/or entity responsible for the implementation of IMO instruments in Berm uda. It has the rights, o bligations and responsibilities of
a quasi -signatory to the IMO instruments. The Government is responsible for enacting the required legi slation for giving effect to those IMO instruments and
International Maritime Conventions that have been extended to Bermuda, provisioning the administrative
and infrastructure requirements, including qualified
and trained technical staff necessary for the impl ementation and enforcement of the IMO instruments.
Madam President, the preparation for the audit has been years in the making. In August 2017 the
UK Maritime and Coast Guard Agency (MCA) visited
Bermuda to assess Bermuda’s readiness for the
pend ing IMO audit, which produced a detailed gapanalysis report in January 2018, highlighting all exposed areas to be addressed. This was followed by a
mock III Code audit in December 2019 by the MCA to
review the changes made after its 2017 visit. The
mock III Code audit covered Bermuda’s flag, port and
coastal state obligations to ensure alignment with i nternational best practi ces and closely scrutinised
Bermuda’s marine legislation for any gaps.
Madam President, taking everything into account, Bermuda performed well during the mock audit,
a testament to Bermuda’s great efforts to require that
110 13 January 2021 Official Hansard Report

Bermuda Senate international standards have been met by local boats
and Bermuda- registered ships over the years. The
audit, however, uncovered some shortcomings requi ring attention in relation to our maritime legislation not
showing clear responsibility of certain functions rela ting to our flag, port and coastal state responsibilities.
Matters such as oil pollution control, search and rescue operations, storage of dangerous goods, port
waste, and approved standard of training, certification
and watch- keeping requirements were targeted for
legislative impr ovements.
Madam President, with Bermuda being such a
small jurisdiction, some of our marine- related functions are shared between more than one Ministry and
our legislation was unable to clearly show which mi nistry was solely responsible for that function. Some of
the responsibilities will need to be addressed by way of Memorandums of Understanding (MOUs) between
ministries and quangos in order to satisfy requir ements of the upcoming audit by the IMO.
Madam President, as a reputable maritime
nation having a prestigious shipping registry and be-ing a world- class tourist destination, it is imperative
that Bermuda succeeds in the upcoming IMSAS audit
with the highest grades in order to maintain its global
position. Failure to pass the audit will be detrimental to
Bermuda’s ability to provide port services that meet international standards and will hamper Bermuda’s
shipping registry programmes. However, the legisl ative amendments in this Bill will go a long way in making sure that this is not the case.
Thank you, Madam President.
The President: Thank you, Senator Curtis Richar dson.
Would any Senator care to speak on this Bill?
Sen. Marcus Jones: Yes, Madam President.
The President: Senator Marcus Jones, you have the
floor.
Sen. Marcus Jones: Yes. I would li ke to congratulate
the Government, and specifically the Junior Minister of
Transport, for bringing forth this amendment to the
legislation. It is quite obvious that these amendments are necessary, and they come with much thought and
consideration. So we appreciate that.
One of the points that I took note of in the
Junior Minister’s brief was that one of the number -one
priorities of this particular department, Marine and
Ports, and what is reflected in this particular legislation is safety. Safety is a major part of this legislation. I will
take you back to last year, the last day of 2020. Unfortunately, we noted that there was a ferry pilot who was
caught for impaired operation of the ferry. And under the former legislation, which we aim to amend today,
that pilot could only be subject to a maximum fine of
$1,000 and 12 months imprisonment, as this was his first offence. Now, we take note that at the time the
senior magistrate was disheartened at his inability to
suspend the ferry pilot’s licence. And in the senior
magistrate’s words (I quote), it was “abject madness” and “gross leniency.”
Now, if we go back to the month of November,
a month earlier, a man was caught in a roadside
breath- test checkpoint driving with almost twice the
legal alcohol limit, and was fined $1,000 and banned
from driving. His licence was suspended for 18
months. So, Madam President, allow me to set up a comparison for you. I believe the public will be able to
see how we as a legislative body here in the Senate,
as well as in the House, can remedy these issues that
are glaring in our face. On one hand, we have a ferry
driver caught with impaired piloting. He is operating a
public service transport vessel where potentially hu ndreds of persons can be in harm’s way. He is found to
have broken the law. He is fined, and there is an o pportunity for him to be imprisoned, which very rarely happens. But there is no way that his licence can be
suspended. In comparison, we have a private driver who is found impaired driving. He can potentially pu t
several people in harm’s way. But his licence is suspended, and in this case for 18 months.
Madam President, we here in the Senate
have an opportunity to make this right. Now, I am going to say something that is known by the public, we looked to actuall y make it a public statement. But we
know and we have learned that alcohol and drug
abuse are within Marine and Ports, specifically around
the ferry operations. It is a known fact. We know that there are many people within the public who have
sent emails t o Marine and Ports questioning some of
the behaviour of the pilots and the crew that could potentially have brought danger to those who were
riding on this ferry. So we know this exists. But as a community do we need a major catastrophe to happen in order for there to be a prerequisite for us to beef up this legislation?
Madam President, I [ask] this Government,
and now specifically to the Junior Minister of Transport, Will his Government consider beefing up
this legislation so that not only the fines will be increased, but also that operators who put the country
at large at risk by behaviour which brings to danger
and puts people in harm’s way which goes diametr ically against one of the foundational principles of the
Marine and Ports Department, which is t o ensure that
all passengers are in a place of safety . . . Will this
Government be willing to step up and beef up this leg-islation to not only increase the fines, but also to suspend operators who are found guilty of impaired dri ving?
This could act as a deterrent and scourge
those who have so many —and I would say hundreds
of people— in those ships that they are responsible
for. Ensure that they do all they can to abide by the laws so that our people, passengers, both local and


Bermuda Senate tourists alike, will be safe on public transport vehicles
and vessels.
Thank you, Madam President.

The President: Thank you, Senator Marcus Jones.
Would any other Senator care to speak on
this Bill?
No. Then it is over to you, Senator Curtis
Richardson, for a response.

Sen. Curtis Richardson: Thank you, Madam Pres ident, and thank you, Senator Jones.
I do hear your concern as safety being a m ajor part of the legislation and your request for beefingup of the legislation, as you stated. I will point out that this Act repeals the Marine and Ports Act 1962 and
introduces a new Marine and Port Services Act. The
beefing- up, as you say, and the reference that you
used of the ferry operator . . . that is common
knowledge, public knowledge. I can say that the Mi nister of Transport has al ready made a statement with
reference to the pilot’s licence. And the timing of this
offence and the bringing of this Bill to the Senate is no
more than coincidental.
I can say that the changes that have been put
in place with this new Bill do in fact sat isfy your question, as the powers have shifted to different depar tments within the Ministry. And this will come to light.
That particular situation with the ferry operator is
something that is under investigation and being dealt
with accordingly.
That is all I have in response.
The President: Thank you, Senator Richardson. You
can now move the Bill.

SUSPENSION OF STANDING ORDER 26

Sen. Curtis Richardson: Madam President, I move
that [Standing Order] 26 be suspended in respect of
this Bill.

The Presiden t: Is there any objection to that motion?
No objection.
[Motion carried: Standing Order 26 suspended.]

BILL

THIRD READING

MARINE AND PORTS SERVICES ACT 2020
Sen. Curtis Richardson: Madam President, I move
that the Bill entitled Marine and Ports Ser vices Act
2020 be now read a third time.

The President: Is there any objection to the third
reading? No objection.

Sen. Curtis Richardson: Madam President, I move
that the Bill do now pass.

The President: It has been moved that the Bill ent itled the Ma rine and Ports Services Act 2020 do now
pass.
Is there any objection to that motion?
No objection.
The Bill is passed.

[Motion carried: T he Marine and Ports Services Act
2020 was read a third time and passed.]

The President: Thank you, Senator Curti s Richar dson.
We now move on to item number 9 [under the
Orders of the Day], which is the second reading of the Merchant Shipping Amendment (No. 2) Act 2020. And
that too is in the name of Senator Curtis Richardson,
the Junior Minister of Transport.
You have the floor.

Sen. Curtis Richardson: Madam President, thank
you. I move that the Bill entitled Merchant Shipping
Amendment (No. 2) Act 2020 be now read a second
time.

The President: Is there any objection to that motion?
No objection.

BILL

SECOND READING

MERCHANT SHIPPING
AMENDMENT (NO. 2) ACT 2020

Sen. Curtis Richardson: Madam President, t he Bill
for consideration is the Merchant Shipping Amendment (No. 2) Act 2020 . The Bill makes amendments to
the Merchant Shipping Act 2002, the principal Act, to
fully implement the Wreck Removal Convention 2007
in Bermuda. This will enable Bermuda to request the
United Kingdom to extend the Convention to Berm uda.
This Bill also addresses some gaps in Berm uda’s maritime legislation and is part of an ongoing effort to keep up with our international obligations to
ensure our maritime legislation remains current and aligned with the International Maritime Organization
(IMO ) Convention and protocols. I will provide a summary of the amendments in chronological order.
Madam President, in December 2019 the UK
Maritime and Coastguard Agency [MCA] conducted a
mock III Code audit of Bermuda in preparation for the
official IMO III Code audit of the UK and the Overseas
Territories that is currently scheduled for February
112 13 January 2021 Official Hansard Report

Bermuda Senate 2021. The [mock] audit was conducted by two MCA
representatives, and a total of 10 Government and
local agencies participated in the audit. Overall, Bermuda had a good audit result, and the Bermuda Shi pping and Maritime Authority [BSMA], in consultation
with other key stakeholders, are addressing all of the
audit findings. And some amendments proposed in
this Bill are related to findings in the mock audit.
Madam Pr esident, during the mock audit the
BSMA was unable to demonstrate the mechanism for
impartial investigations into the conduct of seafarers holding standards of training certification and watchkeeping certification or endorsement, and a process
for withdra wal, suspension or cancellation of such certifications when warranted. This was evidenced by the
fact that sections 73 through 80 of the principal Act,
which allowed for enquiries into the competency of
seafarers to hold certificates, had been repealed.
The legislation only contemplates the removal
of a certificate in cases of fraud or error. It appears and it is assumed that during the implementation of the Maritime Labour Convention [MLC], the legislative
requirements in 2013, a policy decision was made to
remove the previously referenced sections as they
were considered redundant and the decision was
based on advice provided at the time. Therefore,
amendments are required to reintroduce the repealed sections 73 through 80.
Madam President, as prefaced i n my earlier
comments, amendments are required to the Act to
fully implement the Nairobi International Convention in
Bermuda, and the following provides some bac kground on this matter. In November 2018 the Merchant Shipping Act 2002 was amended by inserting a
new part, Part IXA after section 216 of the Act, to
make salient provisions of the Convention applicable
in Bermuda.
In keeping with the procedure to request the
extension of an international convention, Bermuda
drafted a transportation table that was submitted to
the UK Department of Transport [DfT] for their review
and comment. The UK Department of Transport has
subsequently advised and recommended that we make additional amendments to Part IXA to add and
augment local provisions for the full implementation of
the Convention in Bermuda. With these amendments, Bermuda will satisfy all of the legislative requirements
to have the Convention extended to Bermuda by the
UK.
Madam President, the Bill’s final amendment
is a result of the mock audit findings with respect to
Part XI, Accident Investigations [and Inquiries]. The
findings highlighted that marine accidents are invest igated by investigators from the BSMA, who are also responsible as general superintendents for safety on
board ships registered with the BSMA (i.e., an organisation which may be affected by the outcome of the
investigation). Currently, the decision on whether to
investigate an accident is taken by the Chief Marine Surveyor, who oversees the safety surveys and cert ification of these shi ps. And investigators also function
as surveyors of these ships. Therefore, currently the
BSMA is unable to demonstrate that investigations
into marine casualties are protected from direction or interference from any person or organisations which
may be af fected by its outcome, or that the investigators are objective and impartial.
To address and best manage these potential
conflicts of interests, section 228(4) needs to be
amended by replacing the Chief Marine Surveyor
[CMS] with the Chief Executive Officer [CEO]
throughout, as the UK Maritime and Coastguard
Agency has accepted this approach, which has been
utilised by other Overseas Territories members within
the Red Ensign Group, a British ship registry, [or the
REGs]. The CEO has the independence as a result of currently not having any specific duties or responsibil ities under the Act, unlike the CMS, who is appointed
under section 10 of the Act and is directly involved in
the surveying and inspection of Bermuda- registered
ships. Therefore, amendments are proposed to sections 228(4)(e), 228(4)(f) and 228(4)(k) to replace “CMS” with “CEO.”
Thank you, Madam President.

The President: Thank you, Senator Curtis Richar dson.
Would any Senator care to speak on this Bill?

Sen. Marcus Jones: Yes, Madam President.

The President: Senator Marcus Jones, you have the
floor.
Sen. Marcus Jones: Thank you.
From the initial Merchant Shipping Act of
2002, an amendment made to the principal Act of
2012 an d now 2020, there have been little changes to
the legislation. And the ones that we see in this
amendment under the [INAUDIBLE] . . . we welcome
any amendments that can keep Bermuda in line with
current practice within the maritime space.
It is important. So we support this Bill, Madam
President.

The President: Thank you, Senator Jones.
Would any other Senator care to speak on
this Bill?
No. Then, Senator Curtis Richardson, it is
over to you for a response.

SUSPENSION OF STANDING ORDER 26

Sen. Curtis Richardson: Madam President, I move
that [Standing Order] 26 be sus pended in respect of
this Bill.
The President: Is there any objection to that motion?


Bermuda Senate No objection.

[Motion carried: Standing Order 26 suspended.]

BILL

THIRD READING

MERCHANT SHIPPING
AMENDMENT (NO. 2) ACT 2020
Sen. Curtis Richardson: Madam Preside nt, I move
that the Bill entitled Merchant Shipping Amendment
(No. 2) Act 2020 be now read a third time.

The President: Is there any objection to the third
reading?
No objection.

Sen. Curtis Richardson: Madam President, I move
that the Bill be now passed.

The President: It has been moved that the Bill ent itled the Merchant Shipping Amendment (No. 2) Act
2020 do now pass.
Is there any objection to that motion?
No objection.
The Bill is passed.

[Motion carried: The Merchant Shipping Amendment
(No. 2) Act 2020 was read a third time and passed.]

The President: Thank you, Senator Curtis Richar dson.
Sen. Curtis Richardson: Thank you, Madam Pres ident.

The President: We now move on to item number 10
[under Orders of the Day], and that is the second
reading of the Employment Amendment (No. 2) Act
2020. And that is in the name of Senator Arianna Hodgson, Junior Minister for Labour.
You have the floor.

Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam President, I move that the Bill entitled
the Empl oyment Amendment (No. 2) Act 2020 be now
read a second time.
The President: Is there any objection to that motion?
No objection.

BILL

SECOND READING
EMPLOYMENT AMENDMENT (NO. 2) ACT 2020
Sen. Arianna Hodgson: Thank you, Madam Pres ident.
Madam Presi dent, I am pleased to introduce
the Bill entitled the Employment Amendment (No. 2)
Act 2020, which seeks to provide a number of reforms
to employment law. Madam President , as Honourable
Senators will be aware, the project to modernise and
consolidate Bermuda’s labour and employment legi slation has been ongoing for a number of years. Madam President , the Labour Law Reform Committee
[LLRC], a subcommittee of the Labour Advisory Council [LAC], was created in 2014 to review all of the
existing labour legislatio n in Bermuda and to recommend changes that they thought were appropriate. This subcommittee consisted of union represent atives, employer representatives, independent repr esentatives and ex officio members of the Bermuda
Government.
Madam President , following broad and extensive consultation with key stakeholders , a report was
prepared with numerous recommendations on legisl ative changes. The recommendations were largely accepted, and the drafting of the legislation was pr ogressed.
Madam President , a deci sion was taken to
keep the Employment Act with amendments , which
forms the basis of every individual employment rel ationship as a stand- alone piece of legislation, while
consolidating the Trade Union Act, the Labour Rel ations Act and the Labour Disputes Ac t into one Act
called the Trade Union and Labour Relations (Consolidation) Act 2020.
It is the intention that both statutes will form
the employment and labour code for Bermuda. Ma dam President , the debate on the Labour Consolidation
Act will immediately follow this debate. I take that
route.
Madam President , this Bill seeks to provide
increased benefits and protections for workers in ar eas including probation, lay -offs, redundancy and termination. The proposed new protections include:
• the requirement for employers to provide new
employees with a performance review during
their probationary period ;
• the requirement for an employer to provide a
reason related to performance or operational requirements when seeking to terminate an
employee ’s contract when the employee is on
probation;
• the requirement for an employee’s period of
continuous employment to include any period
of lay -off;
• the requirement for an employer who term inates an employee’s contract of employment
to pay wages within seven days or during the
next regular pay ment cycle ; and
114 13 January 2021 Official Hansard Report

Bermuda Senate • an employer to have the capacity to terminate
an employee within six months without notice
or severance if he is guilty of misconduct on two separate occasions or 12 months without
notice or severance if he is guilty of misc onduct on four separate occasions.
Madam President , the Bill provides for zero
tolerance of violence and harassment in the wor kplace in keeping with the International Labour Organ ization’s adoption of the Violence and Harassment Convention in 2019. The amendment s will deal with
bullying and sexual harassment in the workplace. Employers will be required to have in place a policy on bullying and sexual harassment , and recourse for employees for any contravention of the policy.
Madam President , a statement of employment
outlines the conditions of employment and every e mployer is required to provide this document to emplo yees, and both employers and employees must sign
said document. Madam President , the Bill provides for
the following proposed additions to the statement of employment:
• the entitlement to meal breaks and rest days ;
• entitlement to overtime pay or hours in lieu;
• whether there are any work permit -related
conditions and restrictions; and
• the inclusion of the employer’s written policy
against bullying and sexual harassment. Madam President , often persons are hired as
independent contractors, but the work relationship is
actually that of an employee, resulting in no benefits .
Madam President , the Bill provides for the Labour R elation s manager to issue a nd publish guidance for the
purpose of determining whether a relationship more
closely resembles that of an employee than that of an
independent contractor.
Madam President , currently, the persons for
whom bereavement leave may be taken are spouses,
children, parents and siblings. The Bill extends this to
include grandparents and great -grandparents, and
grandchildren and great -grandchildren.
Madam President , these amendments will
have a positive impact as the workplace becomes more equitable and employees will be treated with
increased fairness. The enhanced protections for em-ployee’s rights will provide just and fair conditions in work and enhanced social protections.
Madam President, with these remarks, I now
present the Bill entitled the Employment Am endment
(No. 2) Act 2020 and welcome comments from other
Senators.

The President: Thank you, Senator Arianna Hodgson.
Would any other Senator care to speak on
this Bill?

Sen. John Wight: Yes, Madam President.
The President: Senator John Wight. Yes, you have
the floor, Senator Wight.
Sen. John Wight: Thank you, Madam President.
I have several concerns regarding this Bill
which I would like to express. So it has been the stated goal of the Government, which I believe is supported by all Bermudians, that we need more jobs in
Bermuda. We need more existing employers to create
jobs in Bermuda. And we need more overseas companies that are comparing Bermuda against other j urisdictions such as Cayman and Canada, for example.
And so in light of that, when I rea d through this Bill
there were several provisions that caused concern.
One of them, by example, would be the defin ition of “redundancy,” which will now include not just
salary, but bonuses as well. So any amendments to the legislation that increase the cost of doing business
or increase the administrative burden to Bermuda
businesses are not, in my view, good.
So to use that example again, redundancy is
regrettably the way of the world in Bermuda and ev erywhere. With the world changing so quickly, jobs that
were necessary yesterday may not be necessary t omorrow. And for many businesses, a large component
of a person’s compensation can be bonuses. In fact
for international businesses in many cases bonuses
actually form a larger part of compensation than the
salary does.
I will use a second example in terms of the
administrative burden, which would be the requir ement for all employees after five continuous hours to have a 30- minute meal break. I think this type of pr ovisioning just kind of reminds me of the way of the
world 30 years ago. I think in many businesses the
requirements are that employees have to work to
meet the demands of the customers.
So the administrative burden of employers
having to keep track of whether an employee has
worked greater than five hours in a row to warrant a
30-minute meal break, I think is well intentioned, but I
just think is administratively burdensome. So my
strong view is that if this Bill is enacted as put forward,
this will make Bermuda less competitive against many
of our competitors at a time when Bermuda absolutely needs to create new jobs for Bermudians.
And as I said before, we need existing employers to want to create new jobs. We want overseas businesses to want to incorporate in Bermuda. And
this will increase the cost of doing business in Berm uda and add administrative burden.
So while well intentioned, I really believe that
this does not align with the Government’s stated goal
of creating new jobs in Bermuda.
So, Madam President, those are my comments.
The Pr esident: Thank you, Senator John Wight.


Bermuda Senate Would any other Senator care to speak on
this Bill?

Sen. Robin Tucker: Yes, Madam President.
The President: Is that Senator Tucker? Yes.
Senator Tucker, you have the floor.
Sen. Robin Tucker: Thank you, Madam Pr esident.
In my other life as HR manager , I have r esponsibility for balancing the needs of those emplo yers and employees. So I fully understand the challenges that the Government has in trying to strike a
balance to protect the needs and interests of both pa rties to bring about a fair and equitable workplace. It is
not an easy undertaking. So I commend the Gover nment for reviewing this legislation and putting forth these amendments that are the subject of our discussions here today.
While there were amendm ents made since
the Employment Act originally came into force in
2000, even with the changes proposed in this piece of
legislation it is agreed that more work needs to be
done. So I look forward to further proposed amendments in the future. With that said, Madam President,
while the Opposition and the Government often dis agree it is hoped that my comments will be received as
intended, and that is to ensure that whatever is deci ded today is to the benefit of all of the people in this country —employees and em ployers alike.
Madam President, the Opposition supports
the Labour Relations Manager issuing guidance to determine whether a person is deemed an employee or independent contractor. I think it is reasonable to
transfer such high- level functions to those who ro utinely advise on such matters, as they may be best
positioned to make such a determination.
My challenge with this piece of legislation is
that it gives the Labour Relations Manager the authority to create laws on behalf of Parliament while
removing the requirements of that legislation to be
returned to Parliament for further examination to en-sure that that piece of legislation appropriately reflects what the Parliament wishes. I would be interested to
know the reason for this.
Madam President, Members of Parliament are
elected by the people of this country to represent their
interests. Parliament has within their remit the del egated responsibility to make laws, but the ability to
delegate its legislative responsibility should only be
done in emergenc y (or other justifiable reason) to pr ohibit circumventing the laws designed to protect all of
us.
Madam President, the proposed amendment
removes a critical safeguard in section 6 of the Statutory Instruments Act 1977. Removal of section 6 would mean that any legislation the Labour Relations
Manager created through a delegated legislative pr ocess would not have to be returned to Parliament to scrutinise the legislation. Simply put, the Labour Rel ations Manager would be allowed to create legislation independent of parliamentary oversight. We in the
Opposition find this concerning.
Madam President, my comments on this
amendment do not criticise the point of the amend-ment. I do, however, take issue with removing of the
only safeguard currently in place to ens ure oversight
and accountability through parliamentary scrutiny in
any case short of an exceptional circumstance.

The President: Senator Tucker, I just need to ask
Senator Hodgson if we are going into Committee, be-cause if that is the case then we will de al with the
clauses. If we are going to go into Committee, we
should be speaking generally about the Bill and we
will deal with the clauses in Committee.
So, can I have confirmation from Senator
Hodgson whether or not we will be going into Commi ttee?

The Clerk: And the Opposition.
The President: And the Opposition. I just need to
know whether or not we are going into Committee,
because if we are, then we will deal with the clauses
in Committee and any amendments.

Sen. Ben Smith: Madam President, we woul d like to
go into Committee.
The President: Thank you.
Then we will continue, Senators, for anyone to
speak generally on the Bill. And then we will go into
Committee where we will be able to speak individually
on any of the clauses.
So would any other S enator care to speak
generally on the Bill?

[No audible response]

The President: Senator Hodgson, you are in agre ement that we are going into Committee?

Sen. Owen Darrell: Good morning, Madam Pres ident. I would actually like to speak generally on this
Bill.

The President: Senator Owen Darrell, you have the
floor.
Sen. Owen Darrell: Thank you, Madam President.
First of all I want to commend the Minister of
Labour, the Junior Minister, as well as their team for
bringing this Bill to this honourable plac e and fixing
some of the employment matters that kind of have been outstanding for a very long time. It makes me happy to be a proud member of the Progressive Labour Party, where we can actually speak to some of
116 13 January 2021 Official Hansard Report

Bermuda Senate the amendments that are being made to the Em ployment Act today.
The first one that kind of jumped out at me
was the matter that talked about including sexual harassment and bullying policies to be put in place by the employers. In speaking with a lot of individuals in the
community, it seems like k ind of underground bullying
by different members of the workplace has been on
the rise in years. And unfortunately, outside of the
Human Rights Commission, there was really no real
place that spoke to this. So I am happy to see that in there.
You know, I am sure all of us have had situations where you talk to individuals about their em-ployment, how they feel about going to work, and
there have been people who have said, you know, I
feel bullied. I don’t feel happy at my place of employment. So I am glad to see that has been added and
will be added when this goes into effect on June 1
st.
Also, I want to speak to the independent contractor agreements. I think this is very important in
today’s climate. So many times individuals, especially
now, especially young people, to be honest with you,
are desperate to find a job and to just kind of sign on
the dotted line in an effort to feed their families. So
often they feel pressured by the employer to accept
agreements that are along the lines of employer –
independent contractor agreements. But it is not until
after their contract is signed that the employee would
realise that, you know, they have little protections or
benefits as an independent contractor instead of a full
employee.
In reading through some of the am endments
that were put forward, I was actually shocked to know that in 2021 there are still employers who do not feel
the need to give their employees meal breaks and add
that into their statement of employment. I do note
Senator Wight’s comment on increas ed administration
or administrative work. However, I can tell you that if
anyone has been working for five hours and they are
not having a meal break, I am sure they would let you
know without much administrative processes having
to be put in place.
The other matter that I find very interesting
and that I am glad that these amendments speak to, is
that some companies . . . some, I will say “ some”
companies, unfortunately, have abused the prob ationary period for employees. You know, you can r ecall many, man y stories that . . . well, myself, maybe
former students. I ask them, How are you doing?
Where are you working? And, you know, they are excited about their new job. You know, by all accounts they seem happy. Their employer seems happy. And
then you see them in a few months’ time and you say,
How’s the job going? And they say, Oh, well, he let
me go at my probationary period.
The question is, So why did they let you go?
And a lot of times . . . and I remember this quote from
a friend of mine one time. He sai d, Well, you know how it works. Nobody asks. You don’t ask any questions when they let you go during probation. They don’t give you any reasons. They just say you didn’t
pass the probationary period, and they let you go. So I
am glad to see those amendment s placed in the E mployment Act.
The final one that I agree with is the seven
days of the final payment. Again, I am sure many of
us have heard of situations where for whatever reason
. . . someone’s time at a place has come to an end
and it may not be a happy time, they may feel upset
about how things ended. And there are sometimes
employers who actually withhold the money of these
employees, and this is money that is rightfully due to
them. And it kind of does not put a situation where
individuals can get immediate closure.
There are real stories in the community where
people are owed a final paycheque. And because the situation was so toxic at the job where they had left or
were let go from, some of them have just said, You
know what? Forget that money t hat they owe me. I
don’t want to ever go back to that place.
So these are real stories. I am glad to see that
a lot of the amendments in this Employment Act have
been put in here. And I think it will benefit the comm unity.
Thank you, Madam President.
[Pause]

Sen. John Wight: I think you are on mute, Madam
President.

The President: Senator Owen Darrell, thank you for
your comments. And you are the Junior Minister of
Education, Public Works and the Cabinet Office.
And Senator Michelle Simmons has indic ated
that she would like to speak generally on the Bill.
You have the floor.

Sen. Michelle Simmons: Thank you, Madam Pres ident.
I just want to make a few general comments.
And I am going to wind the clock back to the year
2000 when the Act we are amendi ng today first came
into existence.
There were many, many comments made in
the community about that Employment Act of 2000. And I believe that there are many people who were
not looking forward to its implementation, because it
did cause significant change in terms of employment of individuals in our community. But there have been
some really good things that have happened as a r esult of the enactment of the Employment Act of 2000.
And here we are 20 years later. I can hardly believe
20 years have passed already from the time the E mployment Act came into being and to this day.
But truthfully, there is need to update this Act.
And there are several clauses, and I know I am not


Bermuda Senate going to speak to clauses right now; but I have some
comments on specific clauses later. But there are
several clauses in the Bill which now require emplo yers to provide employees with important information in
writing. In several cases, it has to be included in the statement of employment. In some cases —i.e., with
regard to the policy against bullying, policy against
sexual harassment in the workplace—those things,
while they may not be included in the statement of
employment, will be included in the employee handbook, which obviously has to be made available to persons at the commencem ent of their employment.
So there is a lot of written information that
employers will be required to provide to employees. And by writing things down there can be no uncertai nty as to what is intended. So written confirmation of
overtime pay, public holiday compensation, meal
breaks . . . all of that will be in black and white. So
those, in my opinion, are good things.
I also was really happy to see that there is
clarification in the amendment Act regarding termina-tion and redundancy. Because obviously we know of
many situations where people have been terminated or made redundant, and there is not always clarity
about what employees can expect. So that also is i ncluded in the amendment Act.
Another item which gained attention in this
amendment Act was reg arding employee performance
and ensuring that employees are given feedback on
their performance prior to the completion of the prob ationary period. In fact, it has to be on or before completion of one- half of the probationary period. My only
question about that is . . . it does not require the employer to put anything in writing. And I think as som eone who always likes to document things, it is i mportant to give that feedback in writing.
And my final general comment about this is,
Are the amendments that are proposed in this Bill fair? Are they looking toward fairness in employment
and ensuring that both employer and employee have
a clear understanding of their relationship?
So, Madam President, with those opening
remarks, I will conclude and look forward to the Committee stage for debating this Bill.
Thank you.

The President: Thank you, Senator Michelle Si mmons.
Would any other Senator care to speak generally on the Bill?

Thank you so much.
I certainly want to join in the sentiments communicated by Senator Darrell. Just in general as it relates to the amendments in this particular Bill, ev eryone needs to sort of un derstand that 2020 was a
very stressful year. And it continues to be very stres sful. Having breaks for employees reduces stress. And
when employees have less stress, it improves that employee’s sentiments and relations. I have also su ggested it also improv es efficiency. So these are not
just amendments for the sake of making amendments.
Also, I am very, very pleased to see amendments that really support families. It is really dishear tening if individuals have to choose between vacation
time and appointment s that are necessary for their
health. This particular Bill addresses that.
So I am looking forward to a very thoughtful
and insightful conversation as we discuss some of
these amendments in particular.
Thank you, Madam President.

The President: Thank you, Minister Peets.
Then it is over to you . . .oh, would any other
Senator care to speak generally on the Bill before I
hand over to Senator Arianna Hodgson?
No. Then, Senator Hodgson, you will move us
into Committee.

Sen. Arianna Hodgson: Thank you, Madam Pres ident. Should I speak to the comments?

The President: Absolutely. Absolutely; I do beg your
pardon. Yes, you can speak to the comments that have been said so far.
Sen. Arianna Hodgson: Okay. Thank you.
I just wanted to provide some clarity to Senator Wight on the definition provided for “wages.” So,
wages actually do not include bonuses under clause
3. So that should not be an issue. And then regarding
any administrative burden, I would say that that is a
small price to pay for protections for employees in the
workplace.
Senator Tucker mentioned the introduction of
the Labour Relations Manager and what her role would be and how we could make sure that she acts
in the best interests of the greater good for the public,
beyond just the Government’ s mandates. So there are
numerous legislative precedents that provide for this
in cases where there is a need for the conduct of a dministrative functions necessary for the operation of
the statute.
Under [section] 4, the role of the manager is
to issue guidance when determining for the purposes of section 4(1)(b) whether a relationship more closely
resembles that of an employee or independent contractor. This provision does not authorise the manager
to determine for an employer whether a person under
their employ is an employee or an independent contractor. The legislation instructed broadly to take into
consideration the operation of the current law and the
118 13 January 2021 Official Hansard Report

Bermuda Senate various types of jobs and variables that may arise in
an employment context.
I would also like to s peak to Senator Si mmons’s comment about having the reports in writing.
We would like to say that it goes without saying that the documentation has to be present. And so that
would mean that there is some kind of written trail of
communication.
Madam Presi dent, I move that the Senate do
now resolve itself into Committee of the whole for further consideration of the Bill.

The President: Thank you, Senator Hodgson.
Therefore, I will ask Senator Michelle Si mmons to . . .
Sorry. You have got to read the mot ion first. I
beg your pardon. Second—
[Inaudible interjection]
The President: Move the second reading first, Senator Hodgson.
Sen. Arianna Hodgson: Madam Chair —
The President: Madam President first.
Sen. Arianna Hodgson: Sorry, Madam President; I
apologise.

The Clerk: Move that the Bill be read a second time.

The President: Move that the Bill be read a second
time, please.

Sen. Arianna Hodgson: Madam President, I now
present the Bill entitled the Employment Amendment
(No. 2) Act 2020 be read a second time.

The President: Yes.
Is there any objection?
No objection, continue.
And now move into Committee.
Sen. Arianna Hodgson: Okay. Sorry, Madam Pres ident.
I move that the Senate do now resolve itself
into Committee of the whole for further consideration
of the Bill.

The President: Thank you.
Is there any objection to that motion?
No objection.
Therefore, I will now ask Senator Michelle
Simmons, the Vice President, to chair the Committee.
Sen. Michelle Simmons: Thank you, Madam Pres ident.
Sena te in Committee at 11:52 am
[Sen. Michelle Simmons , Chairman]

COMMITTEE ON BILL

EMPLOYMENT AMENDMENT (NO. 2) ACT 2020

Senator Hodgson, do you want to
proceed now?
Sen. Arianna Hodgson: Madam Chairman, I move
that clauses 1 through 5 [of the
Employment Amendment (No. 2) Act 2020 , be approved.
Clause 1 is the citation for the Bill.
Clause 2 amends section 3 of the principal
Act by inserting new de finitions.
Clause 3 amends section 4 of the principal
Act to enable the Labour Relations Manager to issue
guidance for the purposes of determining whether a
relationship more closely resembles that of an em-ployee than an independent contractor.
Clause 4 amends section 5 of the principal
Act to provide expressly that an employee’s period of
continuous employment shall be deemed to include
any period of layoff.
Clause 5 amends section 6 of the principal
Act to include in the statement of employment the par-ticulars [of] the entitlement to rest days and meal
breaks; the entitlement to overtime pay or hours in
lieu; any work permit -related conditions and r estrictions; and the existence of the employer’s written policy against bullying and sexual harassment in the workplace.

[Inaudible interjection]

That is much better. Thank you.

Sen. Robin Tucker: Apologies; I do apologise.
If I may, I would like to continue from where I
spoke a little bit earlier.
Madam Chairman, my comments are specif ically around section 4 and the proposed amendment
that removes this part of section 6 of the Statutory
Instruments Act 1997, as that particular clause will inhibit the legislative process as it relates to parli amentary scrutiny. So I do take issue with the moving of that only safeguard currently in place to ensure
oversight and accountability through parliamentary
scrutiny in any case short of exceptional circumstances.
Enabling the Labour Relations Manager to
make guidance around whether one is an employee or an in dependent contractor [INAUDIBLE ]. Madam
Chairman, this amendment makes sense if the legisl ation to be created has the oversight and approval of Parliament according to section 6 of the Statutory I nstruments Act. Anything to the contrary weakens our
protect ions, as it leaves an opportunity to circumvent
the very system that is designed to protect us all.
Now, I realise that some of the comments
may be that there are limitations with regard to what the Labour Relations Manager is able to do. But it
does caus e me a little bit of concern. If there is no real
issue, then why are we taking this particular clause
out? So that is my comment.
Thank you, Madam Chairman.

Thank you.
Senator Hodgson, would you like to reply
now?
Sen. Arianna Hodgson: Yes, Madam Chairman.
The guiding notes are not legislation. The
provision is drafted to make clear that these do not have legislative power. Again, there are numerous legislative precedents that provide for where there is a
need for the conduct of administrative functions necessary for the operation of a statute.
And th en just further to my comments, I want
to make it clear that the Labour Relations Manager will actually begin anything by providing guidance and
making recommendations to the Labour Advisory
Council, and this council includes Government, union
and other em ployer groups. And so we are not to be
concerned about representation.

Thank you, Senator Hodgson. Would
you now move clauses 1 through 5, please?
Sen. Arianna Hodgson: Madam Chairman, I move
that clauses 1 through 5 be approved.
The Chair man: Are there any objections?
There do not seem to be any, Senator Hod gson. So clauses 1 through 5 are approved.

[Motion carried: Clauses 1 through 5 passed.]

Sen. Arianna Hodgson: Thank you, Madam Chai rman.
Madam Chairman, next I would like to move
clauses 6 and 7.
Clause 6 amends section 9 of the principal
Act to provide that where an employer and employee
agree that the provision of overtime pay or time in lieu
for hours worked in excess of 40 hours per week is not to apply, that agreement must be in writing.
Clause 7 inserts new sections 10A and 10B
into the principal Act. New section 10A provides for the entitlement to meal breaks, and a new section 10B
requires an employer to provide his employees with a
clear, written policy statement against bullying and
sexual harassment in his place of employment.

Thank you, Senator Hodgson.
Would any Senator wish to speak to clauses 6
through 7?
Senator Wight.

Sen. John Wight: Just one question. Because bull ying is also included in the Hum an Rights Act, I just
ask, will this cause any complication between the le gislative wording in the Human Rights Act versus the
wording that will be in the Employment Act?

Sen. Arianna Hodgson: Senator Wight, no. There
will be no issues.
Sen. John Wight: Thank you, Senator.

Senator Hodgson, please continue.

Sen. Arianna Hodgson: Thank you, Madam Chairman.
I will now move that clauses 8 through 10 be
approved.
Clause 8 amends section 11 of the principal
Act to define the term “with pay” and to provide that
where an employer and employee agree that entitl ement to public holiday pay is not to appl y, that agre ement must be in writing.
Clause 9 amends section 15(3) of the princ ipal Act to remove the requirement for an employee to have at least one year of continuous employment before becoming entitled to paid time off to receive ant enatal care.
And, Madam Chairman, clause 10 amends
section 17(1)(a) of the principal Act to include as a
member of a person’s immediate family, for the pur-poses of bereavement leave, a person’s grandparent,
great -grandparent, grandchild or great -grandchild.

Thank you, Senator Hodgson.
Would any Senator like to speak to clauses 8
through 10?
No. There are no comments so far.
Senator Hodgson, it looks as though no one
wants to comment. So please go ahead and move
clauses 8 through 10.

Sen. Arianna Hodgson : Thank you, Madam Chai rman.
I move that clauses 8 through 10 be a pproved.

Thank you.

Sen. Arianna Hodgs on: Thank you, Madam Chai rman.
I move that clauses 11 through 19 be approved.
Clause 11 amends section 18 of the principal
Act to clarify that where an employer seeks to term inate an employee’s contract of employment for a reason connected with the operational requirements of
the employer’s business, he must comply with the n otice requirement under section 20 only, and not the
provisions under sections 26 or 27. This clause also
provides the time period within which an employer
who terminates an employee’ s contract of emplo yment must pay wages or other remuneration and be nefits accruing at the date of termination.
Clause 12 repeals and replaces section 19 of
the principal Act to provide (i) for a probationary per iod for new or promoted employees of not more than six months (subject to that section); (ii) for the conduct
of a performance review during the probationary per iod; (iii) for the probationary period to be extended after that performance review for a period of not more
than three months; and (iv) f or an employee’s contract
of employment to be terminated without notice during
the probationary period. This clause also provides that
termination without notice during the probationary p eriod shall not apply to an employee who is promoted during a period of continuous employment. For such
an employee, section 27 shall still have effect to en able termination without notice for unsatisfactory performance, provided the employee is given prior written warning, appropriate instructions as to how to improve
performance, and a six -month period to demonstrate
improvement. This clause provides that the six -month
and the three- month periods of probation and extended probation shall not apply to uniform services and
such other classes of employees as may be pr escribed.
Clause 13 amends section 20(3)(b) of the
principal Act to provide that notice of termination shall not be given during an employee’s absence on sick
leave unless the period of sick leave extends beyond
six weeks instead of four weeks.
Clause 14 amends section 21 of the principal
Act to require, for the avoidance of doubt, that pa yment in lieu of notice of termination is to be made in accordance with section 18(5), which is within seven
days of termination or at the next interval at which the
employee would have been paid had the contract not
been terminated, or whichever is the longer of the two.


Bermuda Senate Clause 15 amends section 23(4) of the princ ipal Act to clarify that where an employee’s emplo yment under a partnership ceases on dissolution of that
partner ship, no severance shall be payable in a case
where the employee enters into employment with any
of the partners immediately after the dissolution under
no less favourable terms than immediately prior to the
dissolution. This clause also clarifies that subsection
(5) [of section 23] applies where an employee’s contract of employment is terminated by reason of death
of that employee from an occupational disease or ac-cident resulting from that employment.
Clause 16 repeals and replaces section 26 of
the principal Act to enable an employer to give to an employee who is guilty of misconduct a written war ning setting out both the misconduct and appropriate
instructions for improvement. This clause also enables
the employer to terminate, without notice or severance, an employee who within a six -month period is
guilty on two separate occasions of misconduct, or
who within a 12- month period is guilty on four separate occasions of misconduct (provided the employee
receives the requisite written warnings). This clause
provides that an employer shall be deemed to have
waived his right to terminate if he does not do so wit hin the respective periods specified.
Clause 17 amends section 27 of the principal
Act to require that where a written warning is given by
an employer to an employee who is not performing his
duties in a satisfactory manner, the written warning
must also set out the unsatisfactory performance
complained of. This clause also provides that, where
an employer does not terminate an employee (who within six months from the date of a written warning
does not demonstrate that he is able to perform his
duties in a satisfactory manner) within the period
spec ified, the employer shall be deemed to have
waived his right to terminate under this section.
Clause 18 amends section 30(4) of the princ ipal Act to require an employer, before terminating an
employee’s employment for redundancy, to inform
and consult the necessary persons as set out in that
section at least 14 days before giving notice, in ac-cordance with the statutory notice period under section 20. This clause includes the employee in the list
of necessary persons to be so informed and consul ted.
Clause 19 amends section 32 of the principal
Act by inserting new subsection (1A), which requires an employer before laying off an employee to inform
the employee and the employee’s trade union or other
representative (if any), as soon as practicable, to not ify them of the following information [at proposed section 32(1A)(a)]: “the existence of the relevant condit ion
of redundancy; (b) the reason for the lay off . . . (c) the
period over which such lay off is likely to be carried
out.”
Thank you, Madam Chairman.

That’s it.

Sen. Rob in Tucker: Thank you.
So I did want to speak to section 11 as it r elates to the requirement for employers to have paid
the remuneration to [employees] who are terminated within that time period. Seven days is a short period of
time, and yet for some emplo yees it would be a long
period of time. Particularly I would like to speak more
so for the small - to medium -sized businesses who
sometimes have to make certain positions redundant because they are having financial struggles. And so a business having financ ial difficulties, having to pay
staff who are terminated all of their remuneration wit hin that seven- day period could possibly be quite problematic —

Don’t take it personally.

[Laughter]

Sen. Robin Tucker: So what I was saying was that I
believe that the requirement to pay within seven days
is acceptable for larger businesses. But for smaller businesses, people who . . . for smaller and medium -
sized businesses, for some of those bus inesses, especially during this particular time of COVID -19 where
they are having to do more with less, where a lot of
employers are struggling to make payroll as it is,
some employers are not even paying themselves be-cause they have got to make sure to pa y their e mployees. Some of them are having some real financial
difficulty. So to put this added burden on those employers that will fall into this category I think is quite
one-sided.
I believe that if we had something more of a
balance, say within a 14- day period, then at least that
would give employers a little bit more of a grace per iod, if you will, to be able to get funds together that they would not necessarily have on hand. Now that might not sound like a big deal to some people, but
when you are ru nning your own business . . . I do not
know if anyone, certainly in the Senate, has run their
own business. I have a very, very small business. I
only had one other employee. But it is sometimes very
difficult to be able to come up with that money.
And so I think that we need to humanise this a
little bit. Certainly an additional seven days is not a
whole lot, but if we could maybe extend it just by a little so that we could help to accommodate those
small businesses and not just look at it from a perspect ive of large businesses, assuming that ever ybody, all employers, have a bankroll of money that
they can pay out.
Now with that said, I do realise that there is an
expectation that employees will be paid, you know, for the work that they do. But there are instances where
employers legitimately cannot come up with the mon-ies that they need to pay staff. So I think that we need
to take that into consideration when we are looking at
this amendment.
Thank you, Madam Chairman.

Yes, I think it is mo st appropriate.
Would you like to proceed?

PROPOSED AMENDMENT TO CLAUSE 11

Sen. Ben Smith: Yes. Thank you, Madam Chairman.
So as Senator Tucker was just speaking to
the difference from seven days to fourteen days, that
is the specific amendment which we would like to pr opose.
So after [clause 11(b)] we would like to insert
[this amended language to proposed section 18(5)]:
“Where an employee’s [contract] of employment is
terminated, his employer shall pay any wages and
other remuneration and benefits which accrued at the
date of termination and such payment shall be made
within 14 days” (which would then remove “seven
days”) “of termination or at the next interval at which the employee would have been paid had the contract
of employment not been terminat ed, whichever period
is the longer, or . . .” (the alternative amendment
would be within seven days of termination) “or alternatively, by such other date as the employee and employer may agree in writing.”

Thank you, Senator Smith.
I believ e all Senators have had that amendment in writing. And I do not know if anyone else still
wishes to speak. Is there anyone?
Senator Wight.

Sen. John Wight: Thank you.


Bermuda Senate Thank you, Senator Simmons.
So I would agree with that, the wording that
was just expressed to us, the “[ or] alternatively by
such other date as the employee and employer may
agree in writing.” I like that wording because what it does is if for some reason this business does have a
receivable that it will be receiving within, say, a month
or so, this allows the business to receive the funds
due and be able to pay the employee the required
payment rather than just . . . You know, under the current wording, if the required payment is not paid within
seven days there is a big issue. So I do not see any
downside to having the employee and the employer
agree in writing to different terms of settlement.
If the employee feels that this is not in his or
her best interest, they do not have to agree to it, and
that is the end of it. But if there is a good reason for
that person to believe that it is in their best interest to wait until a later period to receive what they are due,
then I think that is a good thing. So that wording
seems to be sensible and in the best interests of both the employee and the employer, to me.

Thank you.
In relation to this particular [clause], what I
would like to communicate to us as Senators . . . the
importance here is really about bringing balance and
fairness, particularly when we are living in a world
where many employees are sometimes going weeks, months and sometimes years without getting the
compensation which they are due. So this particular
amendment, at least in my opinion, as well as I believe the opinion of the individuals who helped draft
this legislation, is to protect from abuse, protect the
employees. And this Bill, in my opinion, actually brings
humanity back to our employees.
So, Madam Chairman, I am in full support of
how the Bill is drafted in its current form. Seven days is reasonable, or the next interval of payment. So if I
get paid every two weeks, my employer will then
make compensation at the end of that . . . or at that
expected interval. If there are more questions, we are certainly
interested in entertaining questions. But as i t relates to
this particular amendment [in the clause as drafted] this is really bringing some balance and some fairness
back so that our employees actually have protection.
Thank you, Madam Chairman.

If there are no other comments . . .
did I see Senator Jones indicating that he wishes to
speak?
Sen. Marcus Jones: No.

The Ch airman: Okay. Thank you.
If there are no other comments, I believe we
have to have a division. Is that correct?

Sen. Arianna Hodgson: Madam Chairman, I would
like to just respond to the comments from Senators.

Yes, please. I am sorry, Senator
Hodgson. Please go ahead.

Sen. Arianna Hodgson: No worries. I was just giving
anybody else some space to make any further comments.
Madam Chairman, the Opposition Senators
have looked at the clause that amends section 18 to
provide timing for severance payments and have suggested two amendments that are actually satisfied in
line with our proposed changes. Madam Chairman,
they suggested fourteen days as opposed to seven, and would like additional language that would allow
for agreement between employers and employees on
the timing of payments, to reduce or avoid closures.
Madam Chairman, we believe that it is very
reasonable to offer employers seven days to settle
payment or to allow settlement by the end of the pay period. Regardless of whether persons are paid wee kly or monthly, the proposed amendment provides ample time for employers to calculate wages or other
remuneration and benefits and to make the final pa yment. Employers should have no issues settling pa yments by the end of the month for persons terminated during the first, second or even third week of the
month. In the same breath, the proposed amendments will allow employers to terminate employees
closer to the end of the month to benefit from a sevenday window to finalise any outstanding details.
Madam Chairman, we have also amended
section 34 of the principal Act to require an employer to inform or consult the necessary persons as set out
124 13 January 2021 Official Hansard Report

Bermuda Senate in that section at least 14 days before giving notice.
And so, Madam Chairman, in that same light, the employer actually has an additional 14 days to sort out
any financial bits. As the employer, I believe that you
should be in the position to sort out your affairs ahead of letting an employee going so as not to disadvantage the employee.
And of course, w e are here to protect the
rights of our workers; that will always be at the top of our agenda.
So, Madam Chairman, while we do understand the sentiments of the Opposition Senators, we cannot support this amendment at this time.