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Comments adopted by the CEACR: Sint Maarten

Adopted by the CEACR in 2022

C094 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Article 2 of the Convention. Insertion of labour clauses in public contracts. The Committee notes the Government’s indication that the Convention was made applicable to Sint Maarten on October 10th, 2010. In its previous comments, initially made in 2012, the Committee has repeatedly requested the Government to take all necessary action in order to give full effect to the Convention and to provide detailed information in future reports on any progress made in this regard. The Committee notes with regret that the Convention is still not given effect in either law or practice, despite the Government’s indications over the past decade that draft directives concerning the insertion of labour clauses in public contracts were in preparation. It nevertheless notes the Government’s indication that it will be in a position to report on the application of the Convention in its next report. The Committee trusts that the Government will take all appropriate legislative or other measures without delay to give full effect to the core requirements of the Convention set out in Article 2, namely the insertion of labour clauses in all public contracts falling within the scope of Article 1 of the Convention. The Committee recalls that the Government can avail itself of the technical assistance of the Office should it wish to do so.
Application of the Convention. The Committee requests the Government to provide a detailed report with full particulars on the implementation of each of the provisions of the Convention, to enable the Office to assess the extent to which the provisions of the Convention are applied in law and practice, and to transmit extracts of bidding documents with the labour clauses in use.

Adopted by the CEACR in 2021

C014 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
Articles 4 and 5 of the Convention. Total or partial exceptions – Compensatory rest. The Committee requests the Government to refer to the comments made under Articles 7 and 8 of the Weekly Rest (Commerce and Offices) Convention, 1957 (No. 106).

C087 - Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the joint observations of the Sint Maarten Hospitality and Trade Association (SHTA) and the International Organization of Employers (IOE) received on 1 September 2021 and referring to the matters addressed below.
Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. The Committee previously noted the observations of the SHTA received on 30 September 2020, which alleged that the Chamber of Commerce and Industry (COCI), a governmental agency, had established the Soualiga Employer Association (SEA), an umbrella organization to represent employers, including at the tripartite Social Economic Council (SER). The SHTA alleged that through the COCI and the SEA, the Government was attempting to establish an employer representative organization that is more in line with its position and does not reflect actual diligent representation and that this appeared to be an attempt to marginalize the existing employer representative groups. The Committee requested the Government to provide its comments on these serious allegations.
The Committee notes the Government’s reply to these observations, received on 19 July 2021. It takes note of the Government’s indication that: (i) the SER is an independent advisory organization where representatives from employers’ and workers’ organizations and independent experts discuss draft legislation and conduct social research into the effects of governmental decisions; (ii) the Government decided to restructure the board of the SER to resolve the unbalanced representation of employers’ organizations; (iii) it mandated the COCI to facilitate the establishment of an umbrella employer organization from which the various employers’ organizations would obtain membership, which led to the establishment of the SEA on 4 September 2020; (iv) while the COCI was executing its mandated instruction, the SHTA, together with three other employers’ organizations, established the Sint Maarten Employers Council (ECSM), as an umbrella employers’ organization incorporated under the laws of Sint Maarten; and (v) both the SEA and the ECSM are currently represented on the board of the SER.
On the other hand, the Committee notes with concern that the SHTA and the IOE allege that: (i) the establishment of the SEA did not comply with the Ministerial Decree “Instructions for regulations”, which required consultations with relevant stakeholders, such as employers’ organizations; (ii) the COCI, as a government agency, could not set up an umbrella employers’ association, especially when recognized employers’ associations were not consulted; (iii) the SEA undermines the employers’ right to freely choose their representation under article 12 of the Constitution of Sint Maarten; (iv) the COCI and SEA intend to provide room for government-owned companies as employers’ representatives and attempt to marginalize existing employer representative groups; and (v) the ECSM has filed an appeal against the appointments to the SER made by the SEA.
In light of these observations denouncing that the SEA was created through government action with the aim of marginalizing the hitherto most representative employers’ organizations in the country, the Committee must emphasize that, under the Convention, it is the prerogative of employers and their organizations to determine the conditions for electing their representatives and to establish higher level organizations, and the authorities should refrain from any undue interference in the exercise of these rights, including interference through the promotion or favouring of organizations that are not freely established or chosen by employers and their organizations.
The Committee requests the Government to take the necessary measures to review, in consultation with the employers’ organizations concerned, the above-mentioned developments, in particular as to the establishment and operation of the SEA and its participation in the SER, in order to ensure complete respect for the rights of employers and their organizations to establish and join organizations of their own choosing and to elect their representatives in full freedom, and redress any interference from the public authorities in this regard. The Committee further requests the Government to provide information on the result of the appeal challenging the appointments to the SER made by the SEA and recalls that it may avail itself of the technical assistance of the Office.
The Committee also reiterates its request that the Government reply in full to its other pending comments under the Convention, adopted in 2017.
[The Government is asked to send a detailed report in 2022.]

C101 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
Article 3 of the Convention. National laws or regulations and other implementing measures. The Committee notes the Government’s reference to the Labour Regulations 2000 which, however, does not contain any provisions on annual holidays with pay and, in any event, excludes farmers from its scope of application. The Committee understands that the labour legislation previously applicable to the Netherlands Antilles have been taken on by the new administration, which might include the Vacation Regulation 1949. If this is the case, the Committee notes that under the Vacation Regulation the right to annual paid leave is lost if the worker has been absent from work for a period of at least six months due to sickness or accident. In this respect, the Committee wishes to recall that according to the letter and the spirit of this Convention, any period of annual paid leave, which may not be taken (for instance due to sickness or injury), should be deferred but not lost, in whole or in part, or compensated (except in the case of termination of employment). In addition, the Committee understands that a similar provision was found in the legislation applicable to the European Part of the Kingdom of the Netherlands but has recently been modified to permit an employee to acquire full annual leave even in the case of long-term sickness. The Committee accordingly requests the Government to clarify the current status of the Vacation Regulation 1949 and also to provide additional explanations on the circumstances under which the entitlement to annual holidays with pay may be lost.

C106 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Repetition
Articles 7 and 8 of the Convention. Permanent or temporary exceptions – Compensatory rest. The Committee notes that as from October 2010, Sint Maarten has become an autonomous country within the Kingdom of the Netherlands and that consequently the labour legislation of the former Netherlands Antilles was taken over and consolidated. The Committee also notes that the Convention is applied through the Labour Regulations 2000 which replaced the Labour Regulations 1952 that previously gave effect to the Convention. In this connection, the Committee notes that under section 15(2) of the Labour Regulations 2000, employees who work during their weekly rest period are entitled to overtime pay calculated at double the regular wage but no provision is made for compensatory rest, as required under these Articles of the Convention. The Committee further notes that under sections 17 and 24 of the Labour Regulations, the Director of the Department of Labour may authorize derogations in the normal weekly rest scheme without however specifying the circumstances under which such authorizations may be granted. Moreover, the Committee notes that section 27 of the Labour Regulations permits different rules on weekly rest to be established by decree in respect of a particular industry. The Committee wishes to recall that the Convention seeks to guarantee that any deviations from the ordinary weekly rest schedule would only be authorized on an exceptional basis, with regard being paid to all proper social and economic considerations and only after consultation with the representative employers’ and workers’ organizations concerned. The Committee further recalls that employees who may be required to perform work during their weekly rest day, either regularly or temporarily, must receive compensatory rest of a total duration of at least 24 hours (irrespective of any monetary compensation) considering that a minimum period of weekly rest is essential for the workers’ health and well being. The Committee accordingly requests the Government to consider the possibility of regulating any permanent or temporary exceptions to the weekly rest scheme applicable to commercial enterprises and offices covered by this Convention in a manner that gives full effect to the requirements of these Articles of the Convention. The Committee also requests the Government to provide copies of any collective agreements containing clauses on weekly rest.

C144 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

The Committee notes the observations of the International Organisation of Employers (IOE) and the Sint Maarten Hospitality & Trade Association (SHTA), received on 1 September 2021. The Committee requests the Government to provide its comments in this respect.
The Committee notes that the Government’s report has not been received. It hopes that the next report will contain full information on the matters raised in its previous comments.
Articles 1 and 5 of the Convention. Representative organizations. Effective tripartite consultations. In response to the Committee’s previous comments, the Government indicates that the most representative organizations of employers and workers for the purposes of the Convention are: the Sint Maarten Hospitality and Trade Association (SHTA), the Sint Maarten Marine Trade Association (SMMTA), the Sint Maarten Timeshare Association (SMTA), the Indian Merchants Association (IMA), the Windward Island Chamber of Labour Unions (WICLU), the Windward Islands Civil Servants Union/Public Sector Union (WICSU/PSU), the Sint Maarten Communication Union (SMCU) and the Workers Institute for Organized Labour (WIFOL). The Government refers to the Ministerial Decree for the Implementation of the Tripartite Committee and the Code of Order as the national legislation giving effect to the Convention. The Committee notes that the Tripartite Committee held several discussions on labour-related topics, which resulted in the adoption of its first Consensus Document. The Consensus Document addresses issues related to the use of short-term labour contracts. The Government indicates that abuse of short-term labour contracts has been a recurring topic for workers and employers, as well as for the Government and Parliament. The Government adds that, in the Consensus Document, the tripartite partners agreed on certain amendments to provisions of the Civil Code relevant to short-term labour contracts, resulting in a major labour law reform and complying in this way with several ILO Conventions applicable in Sint Maarten. While the Committee welcomes the information provided by the Government regarding the reform of national labour legislation, it nevertheless recalls that the fundamental obligation under the Convention is to ensure effective tripartite consultations on all of the matters concerning the activities of the ILO related to international labour standards set out in Article 5(1) (see 2000 General Survey on tripartite consultation, paragraph 28). The Committee requests the Government to indicate the criteria established for determining representativeness. The Committee once again requests the Government to provide information on the content and outcome of the tripartite consultations held on the matters covered by the Convention, particularly relating to questionnaires on Conference agenda items (Article 5(1)(a)); the submission of instruments adopted by the Conference to the National Assembly (Article 5(1)(b)); the re-examination at appropriate intervals of unratified Conventions and Recommendations to which effect has not yet been given (Article 5(1)(c)); questions arising out of reports to be presented on the application of ratified Conventions (Article 5(1)(d)); and the possible denunciation of ratified Conventions (Article 5(1)(e)).
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