Observation (CEACR) - adopted 2022, published 111st ILC session (2023)

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

The Committee takes note of the observations of the International Trade Union Confederation (ITUC), received on 1 September 2022, which refer to matters under examination by the Committee and allege that the widespread use of temporary contracts by employers constitutes a significant limitation to the right to organize, as contract workers are not allowed to participate in referendums for the creation of trade unions. The Committee requests the Government to provide its comments thereon.

The Committee further notes the observations of the Sint Maarten Employers Council (ECSM), received on 6 September 2022 and referring to matters addressed below.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 110th Session, May–June 2022)

The Committee notes the discussion that took place in the Conference Committee on the Application of Standards in June 2022 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to: (i) 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); (ii) consult worker and employer organizations with a view to identifying their representatives in the Socio Economic Council (SER); (iii) provide information on the outcome of the appeal challenging the appointments of the Employers' representatives to the SER; and (iv) 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 Conference Committee also invited the Government to avail itself of technical assistance from the Office to bring the national law and practice into conformity with the Convention. Finally, the Conference Committee requested 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.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. In its previous comments, the Committee had requested the Government to review the establishment of the SEA, which had been facilitated by a governmental agency, as well as its operation and its participation in the SER, and redress any interference from the public authorities in this regard. The Committee notes that the Government indicates, with respect to the appeal referred to in the Conference Committee conclusions, that the Court of Appeals issued a judgement dated 29 June 2022, in which it determined that the right to freedom of association of the ECSM had not been violated, and that both the ECSM and the SEA had been independently designated as representative employers’ organizations, as the involvement of the Minister of General Affairs and the Chamber of Commerce and Industry (COCI) in the establishment of the SEA did not disqualify the latter as a representative organization. The Committee notes with regret that the Government states that as a result of this judgment, it intends to proceed with the establishment of the SEA as an umbrella employers’ organization and the appointments of the employers' representatives to the SER will therefore remain effective until 30 April 2023. The Government also indicates, however, that it would be open to receiving technical assistance from the Office in this regard. The Committee once again recalls that, under the Convention, public authorities should refrain from any undue interference in the exercise of the rights of employers and their organizations to determine the conditions for electing their representatives and to establish higher level organizations. It further recalls that the Conference Committee urged the Government 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 such as the SEA, which is not considered to be an independent employer organization, as it was established by the COCI, an organization with compulsory membership. In this regard, the Committee also recalls that the Conference Committee urged the Government to consult worker and employer organizations with a view to identifying their representatives in the SER. The Committee further notes with deep regret the information from the ECSM that the Government, contrary to the CAS conclusions, apparently has recognized one seat on the SER to the SEA while the other two seats are suspended and that the SER has apparently not been convened since the CAS, nor has the ECSM been consulted on matters affecting its interest, including the preparation of the Government’s report. The Committee therefore urges the Government to take the necessary measures, in consultation with the social partners, to ensure that workers’ and employers’ representatives to the SER are only appointed by organizations which are freely established or chosen by workers and employers and to engage with the ECSM on matters affecting its interests. Observing that there appears to be some confusion around the basic precepts of freedom of association relative to this matter, the Committee reminds the Government that it may avail itself of the technical assistance of the Office in this regard.

Right of workers’ organizations to organize their administration and activities. The Committee had previously requested the Government to confirm whether section 374(a), (b) and (c) of the old Penal Code of the Netherlands Antilles, which prohibited public employees, including teachers, from striking under penalty of imprisonment, had been carried over into the new Penal Code, and to specify any other legislative provisions currently governing the right to strike of civil servants. The Committee notes the Government’s indication that: (i) the Penal Code was amended in 2015 to revoke certain provisions, including section 374bis, ter and quater, which were in violation of the Convention; (ii) the right to strike of civil servants is governed by the Constitution, the Civil Code, the National Ordinance on Collective Agreements, the National Collective Labour Dispute Ordinance and the cohesive Labour Peace Decrees, as well as article 6(4) of the European Social Charter, as the Supreme Court of the Netherlands determined that this provision was applicable in the country; and (iii) the National Ordinance on Substantive Civil Service Law was amended to allow the courts to forbid strikes which threaten public welfare or safety. The Committee further notes that the ITUC, in its observations, states that it is unclear whether section 374(a), (b) and (c) of the old Penal Code of the Netherlands Antilles has been included in the new Penal Code. The Committee requests the Government to specify whether public employees, such as teachers, are forbidden from striking under the new Penal Code, and to provide a copy of the new Penal Code. The Committee also requests the Government to provide detailed information on the types of circumstances in which strikes may be prohibited based on the National Ordinance on Substantive Civil Service Law.