Individual Case (CAS) - Discussion: 2022, Publication: 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Sint Maarten

Written information provided by the Government

The Government of Sint Maarten has taken note of the direct requests and comments made by the Committee of Experts in its 2022 report.

The Government of Sint Maarten would like to apologize for the delay in submitting the pending reports. This is in part due to the lack of capacity in Sint Maarten as a small island developing State. The Government of Sint Maarten strives to meet its reporting obligations prior to the deadline each year.

Through this letter, the Government of Sint Maarten would like to confirm that the requested pending reports on Conventions Nos 12, 14, 17, 25, 42, 81, 87, 95, 101, 106, 118 and 144 have been submitted by the Government of Sint Maarten to the ILO. Confirmation of receipt was sent by the secretariat of the International Labour Standards Department on 8 April 2022.

The Government of Sint Maarten has also taken note of the observation and direct request made by the Committee of Experts concerning Convention No. 87 due to allegations made by the Employers Council Sint Maarten (hereinafter ECSM) and the Sint Maarten Hospitality and Trade Association (hereinafter SHTA).

The Committee of Experts has requested the Government of Sint Maarten to provide the following information:

(1) to take the necessary measures to review, in consultation with the employers’ organizations concerned, the developments mentioned in the Committee of Experts’ report concerning Sint Maarten on pages 267–268, in particular as to the establishment and operations of the Soualiga Employer Association (SEA) and its participation in the tripartite Social Economic Council (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;

(2) to provide information on the result of the appeal challenging the appointments to the SER made by the SEA;

(3) to reply in full to its other pending comments under the Convention.

As mentioned in the letter sent by the Government of Sint Maarten to the Committee of Experts on 18 May 2021, Sint Maarten seeks not only to uphold the law, but to ensure that the principles of good governance are followed in the common interest of the people of Sint Maarten.

The Government of Sint Maarten has been in constant dialogue with the ECSM and the SHTA. As previously mentioned, the Government of Sint Maarten sought to create a balanced and broad representation in the SER by having all business owners, from both larger enterprises but also SMEs (small and medium-sized enterprises), adequately represented in the SER.

The Government of Sint Maarten hoped that, through the creation of an umbrella organization, all the above-mentioned employers would be able to have adequate representation in the SER. Therefore, the mandate was given to the Chamber of Commerce and Industry of Sint Maarten (hereinafter COCI) to execute the establishment of such an umbrella employers’ organization.

The SHTA was also approached by the COCI to be part of the SEA. Employers from the SEA, as an umbrella organization, could then be nominated as representatives from different employer sectors to be appointed to the SER. This would then create the much-needed broad and balanced representation in the SER.

The SHTA was not in agreement and declined to join the SEA. Therefore, the SHTA created its own umbrella organization, the ECSM. Even in doing so, the ECSM has kept the same seats and representation that the SHTA previously had in the SER. The Government of Sint Maarten is of the opinion that the SHTA, now through its umbrella organization the ECSM, has always had adequate representation on the SER, as well as in tripartite consultations. These tripartite consultations are held between the Government of Sint Maarten, employers’ organizations and employees’ organizations.

The Government of Sint Maarten is of the opinion that both umbrella organizations for employers’ organizations, the SEA and the ECSM, are able to have representation in the SER as well as in tripartite consultations. This will achieve greater reflection of all employers on Sint Maarten.

The ECSM/SHTA have contested this framework. Therefore, legal proceedings have been filed by the ECSM/SHTA against the Government of Sint Maarten. The petition by the ECSM/SHTA was regarded as inadmissible by the court in first instance of Sint Maarten. Currently, there is an appeal to the High Court of Aruba, Curaçao, Sint Maarten and Bonaire, Saba and Sint Eustatius. The verdict of the High Court concerning the appointments and representation of employer organizations in the SER will be rendered at the end of May 2022. The Government of Sint Maarten is awaiting the outcome of this decision. When a verdict is rendered in the court of law, it must be upheld by all the parties concerned, unless an appeal is filed.

In relation to the appeal challenging the appointments to the SER made by the SEA, the Government does not observe this as a challenge. In the view of the Minister of General Affairs, the SER is functioning and fulfilling its participatory function for the Government.

Through this letter, the Government of Sint Maarten would like to indicate that the above-mentioned is a priority that Sint Maarten is addressing continuously. The Government of Sint Maarten will continue to dialogue with all parties concerned and hopes that, through the decision of the High Court, the SER will be able to adequately fulfil its role as an advisory council.

The Government of Sint Maarten is able to answer any questions that the Committee of Experts may have regarding the above. Once the High Court decision has been handed down, this can also be shared with the Committee of Experts.

Discussion by the Committee

Government representative – Thank you Chairperson for the opportunity to address the Committee on behalf of the Government of Sint Maarten. Sint Maarten is a constituent State, within the Kingdom of the Netherlands. It is a Member of the ILO through the Kingdom of the Netherlands. As was stated by the Government of Sint Maarten in its letter dated 20 May 2022, which has been made available to this Committee, Sint Maarten has done its utmost to respond to the direct requests and comments made by the Committee of Experts in its 2022 report, meet its reporting obligations and implement and apply the ILO Conventions that are applicable to Sint Maarten, despite our capacity and challenges as a small island developing State.

With respect to the requests and comments of the Committee of Experts, the Government of Sint Maarten wishes to provide context, particularly in relation to the establishment and operation of the SEA and its participation in the Social Economic Council (SER).

The SER is an independent advisory tripartite organization established by national ordinance to provide the Government of Sint Maarten with solicited and unsolicited advice on all important social and economic issues. The SER consists of three representatives of employers’ organizations, three representatives of employees’ organizations and three independent experts, and all members of the SER have a substitute member. Due to an existing conflict related to the employers’ representation in the SER dating back to 2017 and based on concerns raised by the SER Board 2017–20 via the then Chairperson, the Minister of General Affairs decided, based on section 2 of the Business Ordinance of Sint Maarten, to mandate the Sint Maarten Chamber of Commerce and Industry to establish a working group to structure an umbrella employer organization. The intention of the Minister of General Affairs was to ensure a balanced structure with respect to the representatives of the umbrella employer organization, like that of our local umbrella employee organization, the Windward Island Chamber of Labour Unions (WICLU), established in 1997 and also represented in the SER. In so doing, the Chamber of Commerce and Industry installed an advisory committee on its board of directors to further execute the task expeditiously. The advisory committee was able, based on stakeholder engagement and involvement, to complete the establishment of the requested umbrella employers’ organization, the SEA. The actions of the SHTA, inter alia, to establish the ECSM, have since been perceived as not respecting the democratic process of the Government as prescribed by national law, namely the Business Ordinance of Sint Maarten, to grant the aforementioned mandate to the Chamber of Commerce and Industry, even though stakeholder consultations with the above-mentioned employers were held. These actions are also perceived as an objection to the intention of the Government to ensure that a broad-based representation of employers is established to ensure we adhere to the international normative framework in this regard.

It is good to mention that the SHTA, which filed a complaint against these plans of the Government of Sint Maarten, has seen a representation growth in the SER, now having two members and two substitutes. The SEA now has one member and one substitute. This is an indication that its influence in the SER has not decreased, which would not be the intention of the Government. As you might be aware, the SHTA has since filed legal proceedings against the Government of Sint Maarten. However, given (a) the stage at which the litigation process now finds itself, and (b) the verdict of the Joint Court of Justice concerning the appointments to the SER, which is expected on 29 June 2022, the Government of Sint Maarten will have to await the outcome of the decision of the Joint Court of Justice in this regard before taking further action.

In conclusion, I would like to emphasize that it is the wish and intention of the Government of Sint Maarten to continuously engage in fruitful tripartite dialogue with the social partners in our country, both within the formal structures that we have, the SER, and beyond. It is my belief that this case has its origins exactly in that intention; to establish cooperation with the country’s most representative organizations. If the Government has unintentionally taken steps that could be seen as not being in conformity with the Convention, we would be interested in learning from the ILO about the steps that Sint Maarten could take to address these concerns that have been raised. As a government of a small island developing State, with limited technical capacity in our country, we would welcome technical assistance from the ILO to help us take the necessary steps in this regard.

Worker members – This is the first time that the Committee has discussed the application of the Convention by the Government of Sint Maarten. We note the practice of the authorities in Sint Maarten that affects the right of organizations to elect their representatives in full freedom, which contradicts the principles contained in the Convention. We further note the concerns raised that a governmental agency in Sint Maarten has established the SEA, an umbrella organization to represent employers, including within the tripartite SER.

We note the concern that the SEA is a government creation attempting to establish an employers’ representative organization which does not reflect genuine employers’ organizations and is being used to marginalize existing employers’ representative groups. We stress the importance that should be attached to the right of organizations to elect their representatives in full freedom. We reiterate the observation of the Committee of Experts that it is the prerogative of employers and their organizations to determine the conditions for electing their representatives and to establish higher-level organizations.

The authorities should refrain from any undue interference in the exercise of these rights. We also note that similar observations have repeatedly been made by the Committee on Freedom of Association (CFA). Accordingly, in the view of the CFA, the right of employers’ and workers’ organizations to elect their own representatives freely is an indispensable condition for them to be able to act in full freedom and to effectively promote the interests of their members. The Worker members call on the Government to ensure respect for the principles contained in the Convention, including the right of organizations to carry out their activities in full freedom.

The Government must take steps to ensure that employers’ and workers’ organizations can independently and genuinely represent the economic and social interests of their members. The Government must respect the observations of the Committee of Experts and review its actions in this regard. The Worker members further note that in 2017, the Committee of Experts raised serious concerns regarding the exercise of the right to strike of public employees and that these issues remain pending to this day.

The Committee of Experts had noted that section 374(a), (b) and (c) of the Penal Code and section 82 of Ordinance No. 159 of 1964 containing the conditions of service of public servants, prohibited employees, including teachers, from striking under penalty of imprisonment. We note that the Penal Code was reviewed, and a new Penal Code entered into force in 2015. However, it is unclear whether the provisions of section 374 of the former Penal Code, which were in violation of the Convention, have been carried over into the new Penal Code.

We recall that no one should be deprived of their freedom or be subject to penal sanctions for the mere fact of organizing or participating in a peaceful strike. Legislative provisions which impose sanctions, including sanctions of imprisonment, in relation to the legitimate exercise of the right to strike are contrary to freedom of expression and the principles of freedom of association.

Therefore, the Worker members request the Government of Sint Maarten to ensure in law and practice that public employees can fully exercise their right to strike and repeal any provisions in the legislation imposing penalties.

Employer members – On behalf of the Employers’ group, I would like to thank the representative of the Government of Sint Maarten for the explanations provided on developments in the country in relation to respect for the freedom of association of employers. We also appreciate the Government’s written contribution.

However, in the first place, we emphasize that Convention No. 87 is one of the ILO’s fundamental Conventions and, as such, it must be the subject of particular attention and priority supervision. This is the first time that the Committee has examined this individual case, but it is already the third observation made by the Committee of Experts on this subject.

The report of the Committee of Experts notes the observations of the ECSM and the SHTA. Sint Maarten established the SER by national decree after it obtained its semi-autonomous status in 2010. The SER is a tripartite council, the board of which is composed of three workers’ representatives and three employers’ representatives, designated by the respective representative organizations, and a maximum of three independent representatives. “Independent” means appointed by the Government, not being a public official and not representing either workers or employers. The decree refers to a periodic examination of the most representative organizations, without setting out the conditions of representativity. The SER is responsible for issuing opinions requested or not requested by the Government on socio-economic matters. For certain legislative changes, it is a requirement to request the opinion of the SER, even if its opinion is not binding.

What are the facts in dispute? Through the Chamber of Commerce, the Government established the umbrella organization, the SEA, a so-called representative organization of employers. The Government explains that the SEA is an umbrella organization responsible for representing employers in a balanced manner, particularly on the SER. Regrettably, neither the Chamber of Commerce nor the SEA reflect a representation that is freely chosen or freely organized by employers. According to the SHTA, which is a member of the International Organisation of Employers (IOE), this political manoeuvre is an attempt to marginalize existing representative groups of employers, in violation of Article 3 of the Convention.

The SHTA has created an umbrella organization of employers with three other representative organizations. This umbrella organization, the ECSM, has raised the issue on several occasions with the Prime Minister. Not being heeded by the Government, the employers were bound to make comments to the ILO concerning the violation of the Convention, as well as several legal appeals at the national level against the Government’s decisions.

The first judicial outcome should be known at the end of June 2022. In the meantime, we regret to note that two of the members of the SER nominated by the ECSM have been prevented from participating in the SER’s meetings. These employer members have been informed that they would not be suspended, but suspension would involve following legal procedures. However, the effect is the same. As a consequence, representative employers are no longer informed of what is happening in the SER, except that there is now only one employer member, the one designated by the SEA, which was itself created by the Government.

The current composition of the SER is three workers, three independent members and only one non-representative employer member. In law, in accordance with Articles 2 and 3 of the Convention, employers have the right to establish and join organizations of their own choosing and to elect their representatives in full freedom.

In all circumstances, the Government should refrain from any interference in this regard. Freedom of association is a fundamental democratic principle which applies in full to representative organizations of employers and workers. As explained in the 2012 General Survey, Giving globalization a human face, the public authorities must respect freedom of association 100 per cent. The prohibition of any interference by the public authorities includes the prohibition of the creation, in place of the social partners, of a coercive organization or an organization benefiting from favourable treatment.

I will quote two extracts from the General Survey: “Favouritism or discrimination by the authorities in relation to one or more workers’ or employers’ organizations may take various forms: pressure exerted on organizations in public statements by the authorities; unequally distributed aid; premises provided for holding meetings or activities to one organization, but not another; refusal to recognize the officers of some organizations in the exercise of their legitimate activities, etc. In the view of the Committee, any unequal treatment of this kind compromises the right of workers or employers to establish and join organizations of their own choosing.”

Second quotation: “Legislative provisions which regulate in detail the internal functioning of workers’ and employers’ organizations pose a serious risk of interference which is incompatible with the Convention. Where such provisions are deemed necessary, they should simply establish an overall framework within which the greatest possible autonomy is left to the organizations for their functioning and administration. The Committee considers that restrictions on this principle should have the sole objective of protecting the interests of members and guaranteeing the democratic functioning of organizations.”

What does this mean in practice? In its written information of 16 May last, the Government explains that by creating an umbrella organization it hoped to obtain the balanced and broad representation of employers on the SER. However, the objective does not excuse the means that are used, because it is the prerogative of employers and their organizations to determine the conditions for the election of their representatives and to create higher level organizations without any interference by the public authorities and other government organizations.

In conclusion, taking into account all the elements at hand, the Employer members urge the authorities of Sint Maarten to guarantee freedom of association for employers on their territory. The Employer members request the Government to take immediate and effective measures to ensure, in both law and practice, respect for the freedom of association of employers.

In practice, the Government is requested to consult the employers’ organizations concerned regarding the creation and functioning of the umbrella organization, the SEA, and its participation in the SER. In effect, it is necessary to ensure full 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 to remedy any interference by the public authorities in this respect.

The Employer members also request the Government to provide information on the outcome of the internal judicial appeal challenging the appointment of the employer representatives in the SER.

Finally, to give effect in a constructive manner to the judicial ruling that will be handed down in the coming weeks, it would be useful for the Government to request ILO technical assistance with a view to bringing the national situation into conformity with the Convention.

Worker member, Netherlands – Sint Maarten – This written statement is being tabled due to the fact that, as a Worker representative, I, Stuart Johnson, of the Sint Maarten delegation, will be travelling to Curaçao, and this limits my active participation to virtual participation on this matter.

On Sint Maarten, even though the Government would want to argue that the Convention is fully ratified and implemented, as a Worker representative, I would like to present a number of concerns and challenges that are creating enormous obstacles to the full implementation of the Convention.

The referendum procedure to gain the right to represent workers in the private sector or in a company: challenges are noticeable by workers’ organizations when workers seek representation based on the Convention.

Limitation of workers by employers: a vast and extended number of workers on contracts do not have the right to vote in a referendum, since only permanent workers can vote according to the law and regulations.

Abuse of short-term contracts by employers: even though organized workers under the Convention find themselves in constant confrontation with their employers when they exercise their rights as workers to attend meetings called by the union. The latest is that these workers are receiving anything from warning letters to court summonses, together with the union, from the employers or management of companies, and even ministries in the Government.

It is noteworthy that a faith-based government-subsidized school board has included in the employment contract of teachers a clause that would prohibit them from being members of a union. This is a violation of workers’ rights under the Convention. These illustrations show that a number of bottlenecks in application continue to contribute to violations against workers in general and their organization in Sint Maarten.

During the pandemic, workers in the private sector had a unilaterally imposed cut in their wages and benefits from 20, 25 and up to 50 per cent. This included various violations of the agreed salaries between employers’ and workers’ organizations. A 12.5 per cent cut was also implemented for public and semi-public sector workers, which has resulted in protests by workers and their unions from May 2020 until today.

The recommendations:

1. The necessary amendment to guarantee all workers their rights to full representation and active participation in workers’ organizations, and to eliminate the “50 per cent plus one” rule as proof.

2. Make collective bargaining also possible for public sector workers, teachers, public sector schools and government-subsidized schools.

3. Control of compliance and sanctions against abuses or violations of the Convention.

Employer member, Germany – Freedom of association under Article 3 of the Convention means that workers and employers can set up, join and run their own organizations without interference from the State or one another. The establishment of a central federation and affiliation to international federations are also protected. The authorities shall refrain from any intervention.

In this case, an umbrella employers’ organization was created, not as a result of the will of existing employers’ organizations exercising their fundamental right to organize and freely associate, but at the initiative of the Government, which entrusted the Chamber of Commerce and Industry with the task of creating such an umbrella employers’ organization. However, it is the prerogative of employers and their organizations to establish higher-level organizations without any interference by the public authorities or other governmental organizations.

To realize the principle of freedom of association in practice requires, among other things, a legal basis which guarantees that these rights are enforced, an institutional framework which can be tripartite or between the employers’ and workers’ organizations, the absence of discrimination against individuals who wish to exercise their right to have their voice heard, as well as the absence of discrimination between private and public employers.

The Constitution of Sint Maarten provides, in Chapter 2, Fundamental Rights, paragraph 1, article 12, “that the right of association shall be recognized”. According to article 16, discrimination on the grounds of religion, belief, political opinion, race, skin colour, sex, language and on any grounds whatsoever shall not be permitted.

The SER provides the Government of Sint Maarten with advice on all important social and economic issues. In the SER, workers’ and employers’ organizations have a general space for tripartite consultations and social dialogue and to engage with expertise in the field of labour and employment policy.

The association of employers in a central organization is the expression of the freedom of association of employers, as protected by Article 3 of the Convention, and is one of the basic freedoms of workers’ and employers’ organizations. The State shall ensure its full recognition and application without discrimination between private and public employers, or any kind of marginalization of private companies.

The Government of Sint Maarten should ensure that the national legislation guarantees that this fundamental right of employers’ organizations is respected and enforced in practice and shall refrain from any interference in the right of employers’ organizations to establish a central federation.

We encourage the Government to avail itself of the technical assistance of the Office in order to ensure the full conformity of national law and practice with Article 3 of the Convention.

Employer member, Colombia – Article 3 of the Convention is clear and provides that: “1.  Workers’ and employers’ organisations shall have the right to draw up their constitutions and rules, to elect their representatives in full freedom, to organise their administration and activities and to formulate their programmes. 2. The public authorities shall refrain from any interference which would restrict this right or impede the lawful exercise thereof.”

In this case, we note that the creation of the SEA as a coordinating organization to represent employers, including on the SER, was not the result of the will of the most representative employers’ organizations in Sint Maarten to exercise their fundamental right to organize and associate freely.

The creation of the SEA is a government initiative, which made the Chamber of Commerce and Industry responsible for creating this higher-level employers’ organization. Regrettably, neither the Chamber of Commerce nor the SEA have representation that is freely chosen, organized by employers.

This action by the Government would appear to be clearly intended to marginalize the existing representative groups of employers, such as the SGTA, a member of the IOE, in clear violation of the provisions of Article 3 of the Convention.

We encourage the Government to request ILO technical assistance to ensure the full conformity of its law and practice with Article 3 of the Convention.

Observer, International Organisation of Employers (IOE) – Sint Maarten is part of the Dutch Kingdom. Since 10 October 2021, it has been a semi-autonomous country within the Kingdom of the Netherlands. Sint Maarten is governed by its own Constitution, as well as the Kingdom Charter. Ratified ILO Conventions are binding regulations in both Sint Maarten’s Constitution and the Kingdom Charter.

Sint Maarten is a small island in the north-eastern Caribbean. Its gross domestic product (GDP) is about 80 per cent dependent on tourism. The period since 10 October 2010 has known great political instability. The lack of fiscal discipline has seen the public debt balloon. Sint Maarten’s economy suffered tremendous damage as a result of hurricane Irma in 2017, and in 2020 the COVID-19 pandemic brought a slowly recovering tourism-based economy to a complete standstill.

The Netherlands has made assistance available on both occasions; post-Irma, as a grant administered by a group involving the World Bank; and post-COVID-19, through medical facilities and liquidity support to the public office.

Public debt, already an issue, has ballooned even more and will have to be serviced. In order to receive much-needed liquidity support, one of the conditions set by the Netherlands was agreeing to a far-reaching reform agenda. This agenda includes fiscal and administrative reforms, economic and labour reforms, as well as healthcare, education and social support reforms. The objective is to create a more resilient and sustainable Sint Maarten.

In 2020, the Government of Sint Maarten decided unilaterally to suspend the SER. The reason provided was in order to rebalance employer representation. To achieve that, a mandate was issued by the Government to a government institution to facilitate the establishment of a representative employers’ organization.

However, the most representative employers’ organizations recognized by the Government were excluded from this process, and the intention was to have the new organization do the employer appointments to the SER.

Not having a lawfully functioning SER has robbed both employers and employees of the forum for social dialogue. Far-reaching decisions have been made in the meantime, on which the social partners have not been heard.

The reform packages are being developed jointly by the Government of the Netherlands and the Government of Sint Maarten. Without proper social dialogue, although both the Netherlands and Sint Maarten have ratified the Convention, neither party is ensuring compliance with the legislation. Neither party is ensuring that the social partners have their rightful place in the process.

It is our sincere hope that, through the application of mechanisms, both Governments, of Sint Maarten and the Kingdom Government, will make use of the available expertise offered by the ILO to ensure that the opportunity is secured for the social partners to have their lawful place in conducting dialogue.

Government representative – In closing, the Government of Sint Maarten would like to thank the members of the employers’ and workers’ organizations and other Governments for their contributions today. As a young constituent State, we have much to learn from and improve on, and we believe that, with the assistance of you and other countries, we will continue to meet our obligations and ensure that we adhere to ILO standards. The Government of Sint Maarten would like to reiterate that we would appreciate the provision of technical support by the ILO to assist us in meeting our obligations more effectively and efficiently, starting with the upcoming visit of the Director of the ILO Office for the Caribbean.

Worker members – We take note of the comments of the Government concerning the situation in Sint Maarten. We also take note of the interventions of the other speakers, and we note that some of the issues raised fall outside the scope of this Convention and its application. We emphasize that the authorities have an obligation to respect the principles of freedom of association, including the right of organizations to elect their representatives in full freedom, as prescribed by the provisions of the Convention.

The Worker members call on the Government to take comprehensive action to make the laws and practice in Sint Maarten compatible with the Convention.

Regarding the right to strike of public employees, we call on the Government of Sint Maarten to ensure in law and practice that public employees can fully exercise their right to strike and to repeal any provisions in the legislation imposing penalties.

Before concluding, we would like to emphasize issues relating to obstacles to the full enjoyment of the right of workers to freely join and establish unions raised by the Worker representative from Sint Maarten.

We note that the widespread use of temporary contracts by employers constitutes a significant limitation to the right to unionize, as contract workers are not allowed to participate in referendums for the creation of unions. We note in this regard that the threshold set by the legislation – 50 per cent plus one – is excessively high.

We also take note of the employers’ practice of imposing clauses in employment contracts prohibiting workers from forming or joining a union. Some employers even go as far as lodging complaints leading to court summons. These practices constitute undue interference in the right of workers to freedom of association.

We reiterate our call for the Government of Sint Maarten to ensure full compliance with the provisions of the Convention.

Employer members – We thank the various speakers and, of course, in particular, the Government of Sint Maarten for the written and oral information that it has provided to the Committee.

In substance, we insist on the fact that the Convention is a fundamental Convention and as such requires particular attention from the ILO, governments and the social partners.

Our position in relation to Sint Maarten is very clear: there can be no compromise concerning the freedom of association of employers. The Employers’ group therefore requests the Government to take immediate and effective measures to ensure, in law and practice, that the freedom of association of employers is fully guaranteed on its territory. I repeat, the freedom of association of employers, in both law and practice, must be fully guaranteed on its territory.

In practice, this involves ensuring full respect of 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 to remedy any interference by the public authorities in this regard.

In our view, the following action is required for this purpose: first, consult the employers’ organizations concerned regarding the establishment and functioning of the SEA umbrella organization and its participation in the SEA; second, provide information on the outcome of the judicial appeal challenging the nomination of employers’ representatives on the SER; third, request ILO technical assistance to bring the national situation into conformity with the Convention; and fourth, reply in full to the comments of the Committee of Experts that have been pending since 2017.

We are therefore counting on the positive attitude of the Government to ensure that this case does not come back to our Committee a second time.

Conclusions of the Committee

The Committee took note of the oral and written statements made by the Government and the discussion that followed.

The Committee urges the Government, in consultation with the social partners, to:

- refrain from any undue interference in the exercise of freedom of association of employers and workers, including any interference through the promotion of organizations that are not freely established or chosen by workers and employers, such as the Soualiga Employer Association (SEA);

- consult workers’ and employers’ organizations with a view to identifying their representatives in the Social Economic Council (SER);

- provide information on the outcome of the appeal challenging the appointments of the employers’ representatives to the SER; and

- bring national legislation into line with the Convention to ensure that all workers, including public sector workers, are able to fully exercise the rights and guarantees under the Convention.

The Committee invites the Government to avail itself of technical assistance from the Office to bring the national law and practice into conformity with the Convention.

The Committee requests the Government to submit a report to the Committee of Experts by 1 September 2022 providing information on the application of the Convention in law and practice, in consultation with the social partners.