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Articles 2 and 5 of the Convention. Effective tripartite consultations. With respect to the content and outcome of tripartite consultations held concerning matters covered under Article 5(1) of the Convention, the Government indicates that the social partners are provided with the opportunity to provide input into the reports to be made to the ILO in relation to Conventions. Moreover, they provide their comments on an annual tripartite position paper, the “ILC Koninkrijksinstructie”, which addresses all topics on the agenda of the International Labour Conference. The Committee notes that, according to the Government’s report, the tripartite position paper is agreed upon by the Council of Ministers of the Kingdom of the Netherlands, and is discussed intensively by the Kingdom Government, which includes, in addition to the Dutch Ministers, one Minister of Curacao, a Minister of Sint Maarten and a Minister of Aruba. The Government adds that the social partners are also given the opportunity to express their views regarding the ratification of ILO Conventions, citing the ratification of the Labour Relations (Public Service) Convention, 1978 (No. 151) on 31 May 2016 as a good practice example. Furthermore, the social partners have the opportunity to express their wishes regarding the ILO Conventions to be ratified. The Government expresses the view further that dialogue and consultations between the government and the social partners is bearing fruit, indicating that the denunciation of ratified Convention and re-examination of unratified Conventions and Recommendation to which effect has yet not been given is the next step to be taken in the open and sometimes heated dialogue within this tripartite platform. In addition, the Committee notes the information provided by the Government on the framework for tripartite consultation in relation to the matters relating to international labour standards. The Committee notes that the Government does not provide any information on the content and outcome of tripartite consultations held regarding the Government’s replies to questionnaires concerning items on the agenda of the International Labour Conference. The Committee requests the Government to indicate the manner in whichtripartite consultation is carried out in connection with the preparation of the tripartite position paper prior to its finalization and discussion in the Council of Ministers. In addition, the Committee once again requests the Government to provide full, detailed and updated information on the frequency, content and outcome of tripartite consultations held on all of the matters relating to international labour standards covered by Article 5(1)(a) through (e).

Article 4. Administrative support and financing of training. The Committee notes the information provided by the Government in reply to its previous request concerning the application of this Article.

Article 6. Operation of the consultative procedures. The Government indicates that, the social partners are involved in the process of drafting the annual ILO reports, which takes place from March to August of each year. Moreover, if the social partners do not provide their responses within a reasonable period of time, government officials make arrangements to meet with them to facilitate the exchange of information. The Government adds that during these informal meetings, which take place in smaller settings, the social partners contribute practical suggestions and comments in full conformity with the requirements of the Convention. The Committee nevertheless notes that the Government does not provide any information on the outcome of these consultations or on the impact they may have on the annual report. The Committee invites the Government to provide information on the outcome and impact of the tripartite consultations held with the social partners in the preparation of the annual reports.

In order to provide a comprehensive view of the issues relating to the application of the ratified Conventions on working time, the Committee considers it appropriate to examine Conventions Nos 14 (weekly rest in industry) and 106 (weekly rest in commerce and offices) together.

Article 1 of Convention No. 14 and Article 2 of Convention No. 106. Scope of application. The Committee notes that the Labour Regulation 2000 excludes from its scope of application the following categories of workers: (i) persons working for shipping companies, and directly related to arrivals and departures of ships and persons and goods transported by such means; and (ii) employees whose gross annual income is more than 260 times the daily wage, referred to in section 8(2) of the National Ordinance Health Insurance. The Committee recalls that Convention No. 14 applies, inter alia, to workers involved in transport of passengers or goods by road, rail, or inland waterway, including the handling of goods at docks, quays, wharves or warehouses, but excluding transport by hand. It also recalls that both Conventions apply to workers irrespective of their level of earnings. The Committee requests the Government to indicate in which manner it ensures that the provisions of the Conventions are given full effect regarding the abovementioned categories of workers excluded from the Labour Regulation 2000.

Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106. Compensatory rest. In previous comments, the Committee had noted that section 15 of the Labour Regulation provides that, when working on their weekly rest day, workers receive overtime pay. Noting the information provided by the Government in its report regarding the ongoing revision of the Labour Regulation 2000 (P.B. 2000 No. 67), the Committee observes that the draft revised Labour Regulation does not provide for compensatory rest in case of work during the weekly rest day either. Recalling that Article 5 of Convention No. 14 and Article 8(3) of Convention No. 106 require that workers who are deprived of their weekly rest be granted compensatory rest irrespective of any monetary compensation, the Committee requests the Government to take the necessary measures to bring the relevant provisions of the legislation in line with this requirement of the Conventions, and to provide information on any progress made in this respect.

Article 3(1) and (2) of the Convention. Additional duties of labour inspectors. The committee notes the Government’s indication that the labour conditions section of the labour inspectorate is also in charge of ensuring compliance with the Ordinance on Work by Foreigners with regard to the need of foreign workers to hold a work permit, and that inspections related to the Ordinance resulted in 20 infringements including 8 instances referred for further prosecution. The Committee recalls that, pursuant to Article 3(1) and (2) of the Convention, the functions of the system of labour inspection shall be to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work (for example, provisions relating to hours, wages, occupational safety and health, child labour), and any further duties which may be entrusted to labour inspectors shall not be such as to interfere with the effective discharge of their primary duties to secure the enforcement of the legal provisions relating to conditions of work and the protection of workers while engaged in their work. The Committee requests the Government to take measures to ensure that the functions assigned to labour inspectors do not interfere with the main objective of labour inspectors. The Committee requests the Government to provide additional information regarding the role and responsibilities of labour inspectors in the application of the Ordinance on Work by Foreigners, including the time and resources of the labour inspectorate that are allocated to these responsibilities in practice, and whether the 8 infringements referred for prosecution involved prosecution of migrant workers, employers, or other entities. The Committee further requests the Government to provide information on instances where inspectors took specific action to provide migrant workers with protection of labour rights equal to those enjoyed by citizens of Curaçao.

Article 7(3). Continuous training of labour inspectors. Further to its previous comment, the Committee notes the information provided by the Government concerning the training activities provided to labour inspectors. It notes that, after recruitment, all inspectors are requested to attend courses in: law enforcement (4 months of 12 hours per week), labour laws (4 weeks of 3 hours per day), occupational safety and health (1 month of 8 hours per week), and many on-the-job training sessions. The Committee requests the Government to continue to provide information on the training given to labour inspectors, and to include information on the content, frequency, number of participants and the results achieved for each set of training sessions.

Articles 10, 11 and 16. Human and material resources of the labour inspection system. Frequency and thoroughness of inspections. In response to its previous comment, the Committee notes the information provided by the Government in its report concerning the human resources of the labour inspectorate. It notes in particular that, in 2020, these resources encompass 28 employees, including: 9 inspection officers in the section of occupational safety and health, 9 inspection officers in the section of labour conditions, 6 inspection officers in the section of community care and social facilities and 4 persons in the role of Inspector General, Secretary, Head of Operations and Operations officer. The Committee notes that, in 2020, the section of labour conditions performed 327 inspections and that the section of occupational safety performed 343 regular inspections. The Committee also takes due note of the information provided by the Government concerning the material resources of the labour inspectorate. In addition, the Committee notes the Government’s indication that, as a result of the COVID-19 pandemic, many business activities were closed during 2020 and that routine inspections were cancelled. It also notes that human resources from the labour inspectorate were diverted to different assistance tasks in response to the crisis generated by the pandemic. The Committee requests the Government to continue to provide information on the number of labour inspectors and on the number of labour inspection operations carried out. It further requests the Government to send information on the geographical distribution of labour inspectors.

Article 12. Powers of labour inspectors. Further to its previous comment, the Committee notes that section 6 of the National Ordinance of Safety, section 34 of the Labour Regulation 2000 and section 16a of the Vacation Regulation 1949 establish the powers of labour inspectors with respect to supervising compliance with the legal provisions of these pieces of legislation. The Committee requests the Government to provide specific information on the manner in which it is ensured that labour inspectors are empowered to make visits to workplaces liable to inspection without previous notice in conformity with Article 12(1)(a).

Article 13. Preventive measures in the event of a danger to the safety and health of workers. Following its previous comment, the Committee notes that section 2(3) of the National Ordinance of Safety provides that the Executive Council or the official appointed by him for that purpose shall be authorized to stop work in establishments where the regulations provided by or pursuant to this national ordinance are not observed and in cases where persons are directly endangered by such work. The Committee requests that the Government provide data on preventive measures that have been adopted when labour inspectors had reasonable cause to believe that defects in workplaces constituted a threat to the health or safety of workers (Article 13(1)). The Committee also requests the Government to provide information on preventive measures adopted with immediate executory force in the event of imminent danger to the health or safety of workers (Article 13(2)).

Article 14. Notification of occupational accidents and diseases to the labour inspectorate. Further to its previous request, the Committee notes that section 2(7) of the National Ordinance of Safety provides that the head or administrator of the enterprise shall immediately inform the labour inspection officers of any accidents. It also notes the Government’s indication that Social Insurance Bank is in charge of establishing cases of occupational diseases. The Committee requests the Government to provide information on the manner in which it is ensured that occupational diseases are notified to the labour inspectorate. The Committee also requests the Government to take measures to ensure the collection and publication of statistical information on occupational accidents and diseases, in conformity with Article 21(g) of the Convention.

Articles 17 and 18. Effective enforcement and adequate penalties. The Committee requests the Government to indicate the measures taken, in law and in practice, to give effect to Articles 17 and 18 of the Convention, and to communicate copies of any relevant legal texts, as well as information on specific penalties assessed and implemented for violations of legal provisions.

Articles 20 and 21. Publication and communication to the ILO of annual reports on the work of the labour inspection services. In its previous comment, the Committee noted that a computerized and integrated system, including a module for the registration of labour inspection data, was expected to be implemented to enable the labour inspectorate to publish and send to the ILO annual reports with detailed statistical information. In this regard, the Committee notes the Government’s indication that the decision was made to give priority to other sectors of the Ministry and to postpone the implementation. The Committee further notes that no annual labour inspection report has been received, but that the Government provides information on the number of labour inspections and the number of violations detected. The Committee requests the Government to provide information on the possible implementation of the system enabling the registration of labour inspection data. It also requests the Government to take the necessary measures to ensure that annual labour inspection reports are prepared, published and communicated to the ILO, and that they contain information on all the subjects listed in Article 21(a)–(g).

Article 2 of the Convention. Scope of application. The Committee notes that, according to section 1613x of the Civil Code, its provisions implementing the Convention do not apply to seafarers and public servants. The Committee notes that the National Ordinance on the Legal Status of Civil Servants that regulates the working conditions of these workers does not appear to contain provisions on the protection of wages. Under Article 2(1), however, the Convention applies to all persons to whom wages are paid or payable. The Committee therefore requests the Government to provide information on the measures implementing the Convention for seafarers and public servants in order to give full effect to the Convention.

Article 4. Partial payment of wages in kind. The Committee notes that permissible payments in kind are enumerated in section 1613n of the Civil Code and include food and lighting materials, clothing, the use of specified housing or a specific piece of land or shed, as well as company products and raw materials, on condition that these are suited as regards both their nature and quantity to the essential needs of employees and of their families. The Committee further notes that section 1614t of the Civil Code allows the payment of wages wholly in kind and that the Civil Code does not contain provisions stating that the value attributed to wages in kind is fair and reasonable. In this respect, the Committee recalls that Article 4(1) of the Convention provides that national laws or regulations may authorize the partial, and not the total, payment of wages in the form of allowances in kind and only in industries or occupations in which payment in the form of such allowances is customary or desirable because of the nature of the industry or occupation concerned. The Committee therefore requests the Government to indicate how it ensures that payments of wages in kind meet the requirements of Article 4 of the Convention.

Articles 7, 12, 13, and 15(d). Works stores. Final settlement of wages upon termination of contract. Time of payment in cash. Prohibition of payment in taverns and the sort. Maintenance of payroll records. The Committee notes that the Civil Code does not contain provisions giving effect to these Articles of the Convention. The Committee therefore requests the Government to provide detailed information on the manner in which it is ensured that: (i) the workers are free from any coercion to make use of work stores or services, and that when they use them, the goods or services are provided at fair and reasonable prices for the benefit of the workers concerned (Article 7); (ii) any outstanding payments upon the termination of a contract of employment is promptly settled (Article 12); (iii) the payment of wages where made in cash is made on working days only and that payment in taverns and the sort is prohibited (Article 13); and (iv) the national law provide for the maintenance, in all appropriate cases, of adequate records in an approved form and manner (Article 15(d).

The Committee notes the Government’s report received in 2019, as well as the additional information received in 2021.

Articles 3, 4 and 6 of the Convention. Working conditions in the hotel and catering sector. Measures to address the COVID-19 pandemic. In response to the Committee’s previous comments initially made in 2014, the Government provides information on general measures taken during the reporting period to improve the effectiveness of labour inspection in the hotel and catering sector. The Government adds that sector-specific occupational safety and health measures are being implemented by a multidisciplinary team of the Ministry of Public Health, Ministry of Economic Development and the Labour Inspectorate. Since 2017, the team has conducted 1,600 OSH inspections and identified an unspecified number of violations, primarily in the restaurant sector. Moreover, the Complaints Bureau has received 20 complaints during the reporting period in relation to non-payment of overtime, as well as the failure of employers to provide copies of labour contracts and salary statements to their workers. With regard to the 2000 Labour Decree on Hotels, Restaurants and Casinos (the 2000 Labour Decree), the Government reports that the Platform for National Dialogue for an Advanced Curaçao (Plataforma pa Dialògo Nashonal Kòrsou ta Avansa) was organized in collaboration with the social partners, with the aim of revising and updating 21 labour laws, including the 2000 Labour Decree. The Government indicates that these revisions seek to progressively abolish provisions in the Decree that are not consistent with the letter and the spirit of the Convention and, ultimately, to set aside the 2000 Labour Decree. In particular, the Government refers to the elimination of the 48-hour workweek established in the 2000 Decree, to bring the working hours of hotel and restaurant workers into conformity with those of other workers. The Committee nevertheless notes the Government’s indication that this issue is the subject of heated dialogue, given that a shorter workweek will mean less income for hotel and restaurant sector workers, potentially leading to shortages of personnel. Consequently, alternative solutions are under consideration. With regard to the system of service charges, the Government indicates that the TRUNK or TIP (service charge) system (consisting of a 10 to 20 per cent surcharge on consumption) is used as a mean of ensuring payment of the minimum wage and remains one of the most challenging aspects of negotiating collective agreements in the sector. The Committee notes that the topic of service charges will be submitted to the Platform for National Dialogue for an Advanced Curaçao for discussion by all stakeholders. The Government indicates its intention to introduce regulations that are in conformity with the needs of the sector and simultaneously adhere to regional and international norms and best practices. With respect to the development of relevant sectoral collective agreements, the Government indicates that the sector faces many challenges to concluding collective agreements, mainly within the hotel sector. The Committee notes that the Government does not provide the information requested in its previous comments on measures taken or envisaged to develop a national policy designed to improve the working conditions of the workers in the hotel and catering sector. On the other hand, the Committee notes the supplementary information provided by the Government in its 2021 report in relation to the serious social and economic impact of the COVID-19 pandemic on the tourism sector, which has come to a complete stop during the pandemic, increasing the already excessive unemployment rate and bankrupting businesses in the sector. The Committee notes that the Government, in consultation with stakeholders, has taken emergency measures to mitigate the effects of the COVID-19 pandemic on the labour market in general and to preserve as many jobs as possible. The Committee requests the Government to provide detailed updated information on the manner in which workers employed in hotels and restaurants have been affected by the most recent response and recovery measures designed to mitigate the impact of the pandemic on the labour market. It further requests the Government to keep the Office informed of the outcome of any consultations held with respect to the revision of the service charge system, as well as of the 2000 Labour Decree on Hotels, Restaurants and Casinos, and of all future legislative developments relevant to the application of the Convention. In addition, the Committee requests the Government to provide information on any measures taken or envisaged to address the obstacles identified in the process of developing sector-specific collective agreements, particularly for the hotel and restaurant sector. The Committee expresses its firm hope that the Government will avail itself of the opportunity provided by the process of revision of 21 labour laws that is currently underway to develop a sector-specific national policy designed to improve the working conditions of the workers in the hotel and catering sector, taking into account the response and recovery measures already taken and those currently envisaged, and the current labour market situation in the sector.

Comments adopted by the CEACR: Curaçao

Adopted by the CEACR in 2022

C144 - Direct Request (CEACR) - adopted 2022, published 111st ILC session (2023)

Adopted by the CEACR in 2021

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

C081 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C095 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

C172 - Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)