Individual Case (CAS) - Discussion: 2023, Publication: 111st ILC session (2023)

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

Discussion by the Committee

Chairperson – The third case today on the agenda of this Committee is the Netherlands, Sint Maarten, on the application of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). I invite the Government representative of Sint Maarten, to take the floor.

Government representative (Minister of Public Health, Social Development and Labour, Sint Maarten) – Sint Maarten is a constituent state within the Kingdom of the Netherlands, and as such is a Member of the ILO, via the Kingdom of the Netherlands.

The Government of Sint Maarten has taken note of the conclusions adopted by the ILO in the 2023 report of the Committee of Experts in February 2023, specifically concerning the application of the Convention by Sint Maarten.

In relation to Article 3 of the Convention, the right of organizations to elect their representatives in full freedom and the impasse concerning the Social Economic Council (SER), Employers Council of Sint Maarten (ECSM) and the Soualiga Employer Association (SEA), we agree with the Committee that the representatives appointed to the SER are selected from organizations that are freely established and chosen by employees and employers. We understand the significance of consulting with the social partners to ensure inclusivity and fairness in the appointment process.

We would like to make note of the fact that the allegations made by the ECSM, that the Government of Sint Maarten violated their rights of free association, have been clearly rejected, not only by the Government of Sint Maarten, but also by the Court of Appeals (Aruba, Curaçao, Sint Maarten, Bonaire, Sint Eustatius and Saba) in different instances, including the verdict which has also been sent to the Committee, as stated in our previous letter dated 18 November 2022. The Court does not agree with the ECSM that its right of freedom of association has been violated. Freedom of association has a legal basis in article 12 of the Constitution of Sint Maarten. Both the ECSM and the SEA are independently recognized as representative employers’ organizations. This is possible under article 3 of the SER legislation, as the law allows for multiple representative employers’ organizations and not just one.

The Court also stated and recognized that most representative employers’ organizations can be changed over time, based on factors like the number of active members. As a result, the Court has ruled that the ECSM cannot derive legal expectations from previous designations of members that now fall under their organization, which did not exist in 2018, and furthermore, they would always be the sole most representative employers’ organization.

The Court ruled that this is not a realistic expectation. The Court furthermore highlighted the fact that the SEA represents about 500 employers who have joined the SEA of their own free accord and who have also requested representation both on the SER as well as within the Tripartite Committee. As stated, both the ECSM and the SEA were granted the opportunity to present their nominees for representation on the SER, with zero involvement by the Sint Maarten Government, with the exception of the approval, which is regulated by law.

At the time of the Court verdict, the SEA represented more employers than the ECSM. Employers can freely choose to be part of either organization. The Government of Sint Maarten hereby emphasizes the fact that there was no involvement by the Government on the choice of the employers regarding their membership to either organization, whether it be the ECSM or the SEA.

In addition, the Sint Maarten SER requested advice from the Netherlands SER concerning the above-mentioned matter, in which the Netherlands SER indicated that the manner in which the employers’ associations – the employers were selected for this association – was not in conflict with Kingdom laws.

The Government of Sint Maarten also met with the Regional Director in June 2022, where we discussed and requested ILO assistance with resolving the ongoing impasse with the employers’ representative organizations. A follow-up letter requesting technical assistance was also sent on 27 June 2022. Although we received confirmation of our request, there was no further correspondence for the remainder of the year. We recently, however, met once again with the ILO Regional Director for the Caribbean prior to and during the ILO subregional meeting of the Caribbean Ministers of Labour in Georgetown, Guyana, from 23 to 25 May 2023. The Government of Sint Maarten indicated its desire for ILO assistance to have discussions and engage in dialogue with all partners concerned by this current impasse.

The conclusions during this meeting were that the situation is of a technical nature and, as a result, the suggestion coming from the ILO Regional Office is to have the ILO engage in conversation with both organizations, namely the ECSM and the SEA. The intended purpose of this assistance by the ILO is to identify any bottlenecks and find amicable solutions in the shortest period possible. The Government of Sint Maarten welcomes this initiative of the ILO to mediate this impasse and will await any outcome of this process. It is important to know that the Government of Sint Maarten depends heavily on these social partners to assist with our laws and any further evolution of our legal system. This is very important, as the SER forms a vital part in our legislative process.

We move to the right of workers’ organizations to organize their administration and activities, striking rights (direct request 2017) and the response to the observations of the ITUC. The ITUC calls 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. It is important to note that there are no provisions in the current legislation that impose penalties on public employees exercising their right to strike. However, the Court may forbid a strike that threatens public welfare or safety.

Pertaining to the concerns of the Committee on the rights of public employees, particularly teachers, to engage in strikes under the new Penal Code, the Government of Sint Maarten can elaborate further on the information which was provided via letter on 18 November 2022.

Sections 372, 373, 374 bis, 374 ter, 374 quater, 376, 387 and 391 were referenced in the previous letter drafted to the Committee. These sections refer to consequences for three different types of individuals including ministers, Members of Parliament and civil servants. The sections which make direct reference to civil servants and consequences for striking are sections 374(a), 374 ter and section 374(c).

Previously these sections created barriers to striking or types of striking for public sector workers. The consequences for civil servants regarding striking included monetary fines or even imprisonment. As Sint Maarten became an autonomous country on 10 October 2010, all legislation was taken from the former Netherlands Antilles. In 2015, these sections were removed, which was implemented via the amendment to the new Penal Code of 2015. Furthermore, reference is also drawn to sections 86 and 87 of the National Ordinance of Substantive Civil Service Law.

With regard to disciplinary actions, according to section 86, a civil servant would be subject to disciplinary action in certain cases: for example, if they did not fulfil the professional obligations requested, were guilty of any violation of the regulation or acts of omission, or were involved in a criminal prosecution, they could be subjected to the disciplinary actions described in section 87, paragraph 1. Considering that the above-mentioned sections of the Penal Code have been removed, public workers can no longer be subject to disciplinary actions in connection to their right to strike. To facilitate your understanding of the new Penal Code, we are pleased to provide you with a copy for your reference.

The Government of Sint Maarten can conclude that our national legislation related to the rights of workers, including public sector workers, has since been amended in line with the Convention. Therefore, it does not require further amendment in this regard.

In conclusion, public employees, including teachers, are not forbidden from striking under the new Penal Code, and we hope that we have provided sufficient information pertaining to the direct request of 2017. We remain steadfast in our commitment to promoting a fair and inclusive environment that respects workers’ rights and encourages constructive social dialogue and continued development. We look forward to continuing our dialogue and cooperation with the ILO to achieve our shared objective.

Employer members – The Employer members thank the representative of the Government of Sint Maarten for the explanation on the national situation. But allow me first to make a small technical point of order. This is not the Netherlands/Sint Maarten case but simply a case against Sint Maarten. Sint Maarten acts independently on the matters before us; they are an autonomous consistent Member State of the ILO.

First of all, we deplore the substantive administrative burden that the Government imposed on the Employers’ delegate to be able to participate in the Conference. We also deplore the fact that the Government did not provide us with any information in writing.

The Convention is part of the body of ten fundamental Conventions of the ILO, and because of that, the Convention is given priority for follow-up and control. This Committee examines this case for the second time, and it is already the third observation by the Committee of Experts on this matter, meaning it has been on the agenda uninterruptedly since 2020. We regret that the conclusions of the Committee taken here last year were not taken up by the Government authorities. In short, the Committee had requested the Government, last year, to refrain from any interference in the exercise by the social partners of their freedom of association in general, and to refrain from promoting organizations not freely set up or chosen by the workers and the employers of Sint Maarten.

The Committee also requested the Government to consult with the organizations of workers and employers in order to designate their respective representatives in the SER and to provide information on the outcome of the legal appeal concerning the composition of that council.

The Government does not seem to have understood the concept of freedom of association under Article 3 of the Convention. As already explained last year, Sint Maarten created an SER by national decree after it obtained in 2010 its status of semi-autonomy vis-à-vis the Kingdom of the Netherlands. The SER is a tripartite economic and social council whose governing board is made up of three workers’ representatives and three employers’ representatives, appointed by the respective representative organizations, and three independent representatives, and only the latter are, in principle, appointed by the Government.

In practice, through the Chamber of Commerce and Industry (COCI), the Government created 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 way within the SER.

This is disputed by the Employers’ group because neither the COCI nor the SEA reflects a freely chosen and freely organized representation by the employers of Sint Maarten. According to the Sint Maarten Hospitality and Trade Association (SHTA), which is a member of the International Organisation of Employers (IOE), this political operation would be an attempt to marginalize the existing representative groups of employers, in violation of Article 3 of the Convention. The SHTA has created an employers’ cupola with three other representative organizations. This ECSM umbrella employers’ organization has been appealing to the Prime Minister for several years, unfortunately without success.

So, what are the national developments since 2022? The Court of Appeals delivered a judgment on 29 June, in which it states that the ECSM and the SEA would have been designated autonomously as representative employers’ organizations, and that the participation of the Minister of General Affairs and the COCI in the creation of the SEA would not disqualify that organization as a representative organization. In our view, this judgment is not relevant to the present case, insofar as it does not address the crucial point that representative employers’ and workers’ organizations are not by definition autonomous and independent as required by the Convention. Although the COCI and the SEA are representative, the COCI, as an organization whose membership is compulsory by law, is a state-established entity, and the SEA, which was created by the COCI on the instructions of the Government, shares this status as a state-established entity. Both are therefore not independent, and this is, I repeat it for the Committee, of crucial importance. Representativeness and independence are not the same, and the Convention is about independence.

According to the ECSM, the SEA has been allocated one seat, and even two seats out of three in 2023, but the SER has not even been convened since February 2022, and therefore the ECSM has not been consulted on issues that affect its interests, in particular the preparation of the Government’s report to the ILO. One even wonders if the recent labour laws are legitimate, insofar as the SER has not been regularly convened to discuss those matters.

A new law was passed by Parliament in 2023 concerning the composition and functioning of the SER. In particular, it introduces a list of legal criteria to be met by members, as well as a limitation of duration to two successive terms of three years. We believe that these limitations are disproportionate and constitute additional attacks on the autonomy of the organization and representation of the social partners. Furthermore, this law is contrary to article 79.2 of the Constitution of Sint Maarten because it delegates certain decisions of the legislator to the executive power. Therefore, we hope that this law will never be published.

In law, under Articles 2 and 3 of the Convention, workers and employers are free to form organizations of their own choosing, without prior authorization, and to join them and to elect their representatives in full autonomy. The Government should, under all circumstances, refrain from any interference in this regard. I quote Article 3 of the Convention in full:

(1) Workers’ and employers’ organizations 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.

Freedom of association is a fundamental democratic principle, which applies in particular to representative organizations of employers and workers.

As explained in the 2012 General Survey, Giving globalization a human face, public authorities must respect freedom of association 100 per cent. The prohibition of any public interference translates, in particular, into a prohibition on creating, in place of the social partners, a coercive organization or an organization benefiting from preferential treatment. Last year, I already quoted paragraphs 95 and 108 of this General Survey, which condemn, in particular, any favouritism and any unequal treatment between organizations and recommend that the legal framework be limited to a global framework that leaves organizations maximum autonomy in their operation and in their management. Restrictions on this principle should have the sole purpose of safeguarding the interests of members and guaranteeing the democratic functioning of organizations.

Another observation from the Committee of Experts in 2022 concerns freedom of association for workers: the widespread use of temporary contracts would limit the right to organize, as these contract workers would not be allowed to participate in referendums or elections to establish unions. The Employer members want the Government to explain how it reconciles this restrictive legislation with the freedom of social partner organizations to freely organize their functioning and activities in line with Article 3 of the Convention.

Finally, the Committee of Experts has questions for the Government on a possible legal restriction on the right to strike for public sector servants, such as teachers. The Employers have repeatedly stressed that the right to strike is not within the scope of the Convention. The comments and the questions of the Committee of Experts therefore have no grounds in the context of application and supervision of the Convention. This point therefore should never have been mentioned in the conclusions of the Committee for this case.

In conclusion, taking into account all the elements gathered, the Employer members regret that the dialogue between the Government and the autonomous organization of employers has not been able to lead to a satisfactory result since the conclusions of the Committee in 2022. We therefore urge the Government to take the necessary measures, in consultation with the social partners, to ensure that workers’ and employers’ representatives on the SER are only appointed by freely established organizations or chosen by workers and employers, as well as to engage in a dialogue with the ECSM on issues that affect the interests of private sector companies.

This would ensure full respect for the rights of employers and their organizations to form and join organizations of their own choosing, and to elect their representatives in total freedom, and to remedy any interference by public authorities on this subject.

Finally, given that there remains confusion about the fundamental concepts of freedom of association, we urge the Government to seek technical assistance from the ILO, with a view to bringing the national situation into conformity with the Convention.

Worker members – We are discussing the application of the Convention by the Government of Sint Maarten for the second consecutive year.

Freedom of association is a basic human right with universal scope, and one which enables the enjoyment of other rights. It is essential for establishing peace, ensuring social justice and improving working conditions. As previously expressed by the Committee of Experts, workers’ and employers’ organizations are essential components of good labour market governance and of the development of industrial relations systems that are vectors of stability, progress and economic and social prosperity, making it possible to ensure the effective application of labour legislation through the denunciation of violations of the law.

Regarding the specific observations of the Committee of Experts on the application of the Convention by the Government of Sint Maarten, we notice the practice of the authorities in Sint Maarten that affects the right of organizations to elect their representatives in full freedom. This is inconsistent with 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 expressed by the employers’ association of Sint Maarten that the SEA is a government creation attempting to establish an employer representative organization which does not genuinely represent employers and is being used to marginalize the existing employer representative groups.

Since our last examination of this case in 2022, the Court of Appeals of Sint Maarten has handed down a judgment recognizing both employers’ organizations as representative and has found no infringement of the right to freedom of association.

We recall the importance that should be attached to the right of workers and employers to establish their own organizations, to elect their representatives in full freedom and to establish higher-level organizations without undue interference from the authorities.

We also note that in its most recent comment, the Committee of Experts noted with regret that the Government intended to proceed with the establishment of the SEA as an umbrella employers’ organization. The Committee of Experts further noted that the Government, contrary to the conclusions of the Committee from last year, apparently had recognized one seat on the SER to the SEA while the other two seats were suspended, and that the SER had apparently not been convened since the Committee of 2022.

We must emphasize that under Article 3 of the Convention read together with Article 10, workers’ and employers’ organizations have the right to organize their administration and their activities and to formulate their programmes and to do so for the purpose of furthering and defending the interests of workers and employers. Public authorities must refrain from any interference which would restrict this right or impede its lawful exercise.

The purpose here is clear: without genuine and real representation, backed by autonomy and independence from the Government and with regard to the formulation and implementation of their own activities, freedom of association of workers and employers and their organizations becomes meaningless and a mockery of its envisaged scope.

Such an outcome is contrary to the Government’s obligations under the Convention. To better appreciate the extent of its obligations under the Convention and to effectively comply with them, the Government of Sint Maarten must respect the observations of the Committee of Experts and give full effect to its guidance.

The Worker members further note that in 2017 and in 2023, the Committee of Experts raised serious issues regarding the right to strike of public employees and that these issues remain pending to this day. The Committee of Experts noted that section 374(a), (b) and (c) of the Penal Code and section 82 of Ordinance No. 159 of 1964 which contain the Conditions of Service of Public Servants prohibited public 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, and we thank the Government for the additional information they have just supplied.

We urge the Government to fully reflect the guidance of the Committee of Experts on essential services and to specify whether public employees, such as teachers, are forbidden or can be forbidden from striking under current legislation.

The Government of Sint Maarten must promote, respect and fulfil its obligations under the Convention, in line with guidance provided by the Committee of Experts.

Employer member, Sint Maarten – It is my pleasure to speak to you on behalf of the four oldest employers’ associations of the beautiful island of Sint Maarten united and the ECSM, representing 40 per cent of its private sector labour force and with even greater socio-economic weight.

It is 75 years ago this exact week that the following fundamental rights were adopted. Workers’ and employers’ organizations shall have the right to draw up their constitutions and rules and to elect their representatives in full freedom. The public authority shall refrain from any interference which would restrict this right or impede the lawful exercise thereof. For Sint Maarten, the SER is a key tripartite body. By law, its advice is mandatory for all policies with social economic impacts. The law mandates the SER to be an important part of the policy-making process of the Government. In addition to this, it can issue unsolicited advice as it pleases. Lastly, the law provides it as a forum function for workers’ and employers’ associations. Regardless, it also provides equal optional seats for Government representatives as a tripartite body.

In the case of the Sint Maarten SER, this vulnerable balance was unfortunately disrupted or disturbed on 21 April 2020, when the Government decided to unilaterally suspend the SER. In the literal words of the Minister of General Affairs, and I quote, “In order to ensure a balanced representation of the employers’ organizations on the board of the SER, the appointment of the 2020–2023 Council is advised not to be executed until the structure is rectified.”

The COCI, as a business registrar, where companies are registered, will facilitate the organization of an employers’ organization in order to create one locally established umbrella employers’ organization from which various organizations will obtain membership. All SER appointments of the previous cycle expired on 30 April 2020 and it would take ten months to have a new council appointed. The subsequent void of both solicited and unsolicited advice on government policies covered a period of uniquely important social economic decision-making during the worldwide COVID‑19 pandemic.

It is clear that Article 3 of the Convention, stating “public authorities shall refrain from any interference which would restrict”, does not allow the Government to unilaterally suspend an important tripartite body. In addition, the Government mandated the COCI, a compulsory administrative organization regulated by laws, to do this restructuring. With this assumed mandate against our laws and the Convention, the COCI founded the SEA, carrying a government mandate and membership for life for the COCI in its statutes.

Thirdly, the SEA convenes in the COCI facility, makes use of the manpower of the COCI and until recently even had this Government office’s address and phone number on its stationery. When they pertained to the SEA membership acquisition, emails were sent from the COCI, inviting companies to join, mentioning an assignment of the SEA by the Government to fill all three SER seats.

Other interventions, like not appointing employer seats and appointing government paid officials to said positions, also took place in 2021. The two ECSM employers were suspended as of spring 2020 without further motivation.

It is unfortunate that five advisers from the ILO (NORMES), the SER and the Committee, as well as the addressing of these fundamental rights in the Sint Maarten Tripartite Committee under the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), has not altered the Government’s course sooner. It has seemingly led the Government further astray.

Sint Maarten is a young country, yes, but that does not take away the easy responsibility of the Government to engage in social dialogue and respect the fundamental rights of its workers and employers. Disregarding the Committee’s advice in 2022, the Government has not made any attempt to meet on this topic since. What is more, the Committee’s advice to refrain from any undue government interference seems to have been poorly understood and to have only moved in the opposite direction. For example, a law has been proposed that broadens the SER’s advisory instruments to the Sint Maarten Parliament. Not much can be held against this main body of law but, on the sidelines, the law also limits the terms of workers’ and employers’ representatives in the SER. By extension, the law intends to have the Government screen new candidates for the SER based on, among others, fluency in English and Dutch, understanding of Sint Maarten’s society, confidentiality and having a peaceful mindset.

The ECSM is of the opinion that these restrictive criteria are not just subjective, but more importantly, they seem at odds with the liberty of workers and employers to elect their representatives in full freedom as stipulated by Article 2 of the Convention.

Last but not least, the SEA is now granted two SER seats by the Government instead of one. The ECSM offered the SEA, a week ago, to entirely dissolve both federations, forget the past government support and to reunite under a new flag representing all Sint Maarten employers to its utmost. In the end, it is how government means were and are used for the SEA which are disputed, not the SEA’s people, its members or their needs which oftentimes are the same as those of our own members. This offer, unfortunately, was declined.

The Government avails itself of the misunderstood reasoning that the ECSM wishes to be the sole employer entity in Sint Maarten – it does not. It simply wants employer and – if such would be the case at any point in time – worker representation free of government interference, whereas an opposite road seems to continue.

In any regard, the ECSM remains grateful for ongoing objective recommendations from the ILO and the Committee. They provide hope that in an increasingly complex situation, a better tripartite situation in Sint Maarten is dawning.

Worker member, Sint Maarten – As the employees’ representative of Sint Maarten, delegated by the Windward Island Chamber of Labour Unions (WICLU), I want to express our sincere gratitude for the opportunity to provide the Conference with the following statement concerning the issues about the status of the application of the Convention in Sint Maarten, brought to your attention on pages 192–193 of the Report of the Committee of Experts.

First, temporary contracts limited the right to organize. The Committee of Experts has requested the Government to comment on the statement that widespread use of temporary contracts by employers constitutes a significant limitation to the right to organize of workers. As the employees’ representative of Sint Maarten, I can comment based on the labour unions’ experience in Sint Maarten that, formally, all workers in a company have the right to freely associate with the union of their choice. When a referendum is organized in a company to establish which union represents the majority of the workers in the company, only workers directly employed by the company can participate. Contract workers from employment agencies, in jobs in the client company which are permanent, are excluded from participating in the referendum because they are formally considered not to be employed by the client company where the worker is placed, but employed by the employment agency.

We see that workers from employment agencies lose their job placements if they stand up for better working conditions at the client company and/or if they unionize or unite with workers directly employed by the client company. From one day to the next, if the client company management so desires, workers from employment agencies can be replaced by other workers hired by the employment agencies. As a consequence of this so-called “flexibility” in the labour market, contract workers are not being paid by the employment agency during the time that no other placement is found for the contract worker. Contract workers are therefore afraid to unionize or to unite with workers directly employed by the companies. The current legislation, which permits the use of contract workers, does not provide sufficient protection for workers directly hired by a company for a short term or for workers hired by employment agencies. This illustrates the limitation to the right of workers to organize in reality in Sint Maarten.

For teachers in Sint Maarten, especially at one faith-based government-subsidized school, the right to organize and become members of a union is actually taken away in their labour contract. It is stated that they cannot join a union when working with this school board. Although this was denounced as a violation of the teachers’ rights, no national laws were amended to curtail this violation. Most of the other teachers are intimidated and therefore fearful of joining the union so as not to lose their job. The United Nations Educational, Scientific and Cultural Organization (UNESCO)’s Recommendation concerning the Status of Teachers (1966) and its Recommendation concerning the Status of Higher-Education Teaching Personnel (1997) can serve to guarantee that conventions are made to protect the rights of teachers to organize, according to the Convention.

Second, as to the right to strike for public servants, the Committee of Experts has requested 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 Government has also been requested 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.

As the employees’ representative of Sint Maarten, we can comment that even though, under the Convention, workers’ organizations have the right to organize their administration and activities, public servants and their unions are still limited in their right to strike. The right of civil servants is governed by the Constitution of Sint Maarten, 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 determined by the Supreme Court of the Netherlands. The amended National Ordinance on Substantive Civil Service Law allows the courts to forbid strikes, which threaten public welfare or safety. Recent jurisprudence in the case against the police officers and the Nationale Algemene Politie Bond (NAPB) public strike against their unequal treatment since 2010, and the case against the air traffic controllers who had a meeting with their union, the Windward Islands Civil Servants’ Union (WICSU), during working hours, shows that the Court does not deny the right to strike, but ordered the workers and their unions to observe procedures to give the employer enough time to take responsible measures to continue operations. More protection for the right to strike of public servants has to be guaranteed by legislation. For the teachers, it is a matter of not calling the actions a “strike”, but a “membership meeting” during working hours to address the grievances of the teachers. This situation arises mostly because some teachers employed in public schools are civil servants, while others working on government-subsidized school boards are not civil servants but have most of the same rights and benefits as teachers in public schools. The Windward Islands Teachers Union (WITU), as the teachers’ union, observed an elevated and repeated attempt to forbid teachers to strike by the Government. However, due to the strong nature of the WITU in its ongoing fight to address the plight of teachers, the Government did not formally act on it. The national laws are not clear on the rights of teachers to strike, and legal opinions can be contradictory and different. Therefore, the UNESCO’s Recommendation concerning the Status of Teachers (1966), and its Recommendation concerning the Status of Higher-Education Teaching Personnel (1997), can serve to guarantee that conventions protect teachers’ rights and guarantee their rights to strike.

Third, COVID-19 measures violated the Convention, the Night Work (Women) Convention (Revised), 1948 (No. 89), and the Equal Remuneration Convention, 1951 (No. 100). Let me illustrate the bigger picture to be prioritized with the example of the imposition of COVID-19 measures by the Kingdom Government on the working class of Sint Maarten, violating the Convention and Convention No. 89. Just as the KLM unions in the Netherlands have denounced the violation of the right to collective bargaining by the Dutch Government and management of KLM, the Chamber of Labour Unions in Sint Maarten has protested and demonstrated against the unilateral imposition of measures on the remuneration of workers by the Dutch Government and the local Government and Parliament.

As a condition to provide liquidity support for the Government of Sint Maarten, the Kingdom Government demanded that the Government and the Parliament of Sint Maarten pass legislation to cut private sector remuneration of workers by 20 per cent and public sector remunerations by 12.5 per cent. They also demanded to legislate the maximization of top incomes, after imposing a 25 per cent cut on the remuneration of the elected and appointed public officials. This remuneration of employees in Sint Maarten was already much lower than in the Netherlands before the pandemic. With these unilateral impositions by the Dutch Kingdom Government, the gap in remuneration within the Kingdom has only worsened.

Fourth, as to the unequal social protection floor violating the Social Protection Floors Recommendation, 2012 (No. 202), while the cost of living in Sint Maarten is much higher than in the Netherlands, today this inequality in the remuneration of workers and the social protection floor in the Kingdom of the Netherlands is affecting workers, and more than 75 per cent of the households in Sint Maarten live in poverty.

In closing, employee organizations of Sint Maarten therefore want to urgently address these inequalities and violations of ILO Conventions and Recommendations. Solidarity and support from all delegations at the Conference is very much appreciated. We look forward to discussing with you which solidarity actions can advance the cause of the workers and their households in Sint Maarten.

Worker member, France – Among other clarifications, the Committee of Experts asked the Government to comment on the statement that, and I quote: “the widespread use of temporary contracts by employers constitutes a significant limitation to the right to organize”.

Sint Maarten, the Dutch part of a small island in the West Indies, is the result of a colonial heritage, which is cosmopolitan and characterized by a workforce that was once servile and is now highly casualized. The use of employment agencies to serve the economic interests of tourism and other activities is particularly important. The flexibility advocated by the Government, aimed at promoting economic activities, is accompanied by measures that deprive workers of job security and the free exercise of trade union activity, in total disregard for the principles of the Convention.

For example, when it comes to the designation of a representative trade union by referendum, only workers directly employed by the company can take part. Contract workers from employment agencies, including those performing jobs in the client company which are permanent, are not allowed to take part in the referendum because they are formally considered not to be employed by the client company where the worker is placed, but employed by the employment agency.

Internal demands by agency workers are prohibited, and workers placed with a client company lose their jobs if they demand better working conditions at the client company, or if they unionize or unite with workers directly employed by the client company. From one day to the next, if the management of the client company so desires, workers from employment agencies can be replaced by other workers hired by the same agencies. As a result of this so-called “flexibility” in the labour market, contract workers are not paid by the employment agency if no other job is offered to them after they have been replaced. This latitude given to companies on the grounds that they use intermediaries is a clear violation of the Convention.

The result is that contract workers are afraid to unionize or to unite with workers directly employed by the companies. Furthermore, the current legislation does not offer sufficient protection to workers hired directly by a company for fixed-term contracts, and the misuse of such contracts also enables companies to limit access to trade union representation and the exercise of the right to organize.

According to the latest information, employers, company managements and even ministries are sending warning letters to these workers and their unions. These workers are even being summoned by the courts.

It is therefore clear that, despite the Government’s claims of engaging in good practices, the explicit right of workers to practice trade union activities, regardless of the type of employment contract, is flouted in Sint Maarten.

Not only are workers denied a fundamental right, but such practices deprive them of access to a decent life. With precarious, non-permanent contracts, they are unable to meet certain administrative obligations that would enable them to benefit from decent living conditions. This is unacceptable to the Committee.

Government representative – We thank the Employers and the employers’ association. It is important to not take this meeting as a combative meeting, but as a meeting to better ourselves and better our country

There are a couple of rebuttals I would like to make. First, the allegations that the SER has not met or convened since February 2022 are absolutely false. Being the Minister of Public Health, Social Development and Labour, I have received advice from the SER as recently as April of this year.

It is important to note that at no point did the SER ever restrict the ESCM from participating, but on the other hand, I have emails here that state that “if the Government does not withdraw its mandates for the SEA and does not appoint three members to the nomination committee from the ECSM, the ECSM will not reconvene in coming to any meetings”. That is right here in the email. Also, it is important to note that the very organization that we are speaking about right now, the SER, was established by the Government. We seek the best interests of the country. There has been no involvement in who is selected for the Committee by the Government at all.

What the Government did receive was many complaints via the business sector. They felt that only a specific group, be it the hospitality sector, was being represented and not the small businesses in the country. It was suggested in this manner. It is important to note that the COCI has always been a representative in the SER as well. It is important to note as well that when the facilitation or recommendation came about, the SHTA was also re-established right around the time of the SEA. The employers and employees both advised in this meeting that we receive technical assistance from the ILO but, as stated before, we had meetings as early as June 2022. We had meetings at the subregional conference at which it was advised to give the ILO the opportunity to mediate and for the Government to refrain for the moment and allow the ILO to take charge and mediate this process. That is exactly what we are doing. So, I also take note that the representative states that there were no advances from the Government to meet or facilitate a meeting, but I am just letting the Committee know that this was also on the basis of the ILO telling us in 2022 to allow it to see if it could facilitate an amicable solution.

There were also statements made about the newly passed law by Parliament, but I would like to note that Parliament is the highest legislative body in our country. Parliament has the right to amend, approve, disapprove any articles or laws that come before Parliament. They are the representatives of the people of Sint Maarten. So, it is very important to note that if Parliament passes a law, it is above the Ministers’ jurisdiction.

As a new country within the Kingdom, we consider ourselves a small island and therefore a weak civil society. It remains our role to ensure the inclusivity and involvement of our social partners in developing our country. We represent all the people and not just some. We also hear the employees speak of short-term contracts and the abuse of short-term contracts. It is important to note that we have also taken into consideration these complaints and made a new amendment to our Civil Code, which is currently before the SER, hence my reason for saying that this is a very important body that pertains to our legislative process.

Trust me, no one would be more appeased if we could handle this amicably because the SER being in disarray hinders a lot of our legislative processes and enhances some of these same issues that the employers and employees speak about. Therefore, it is important that we are willing to sit down and handle this in an amicable manner, because a lot of what is being requested is now at the same SER for us to change our legislation.

As the SEA was established, we were advised not to intervene. That is most of the rebuttal that I have now for the Committee. I just thought that it was important to point out certain aspects that were mentioned to the Committee.

Worker members – We thank the Government of Sint Maarten for the information provided today and likewise for the helpful contributions from other members of the Committee. We take note of the comments of the Government concerning the situation in the non-metropolitan territory of Sint Maarten. We emphasize that the authorities have an obligation to promote and ensure the effective application of the Convention in full. This includes the right of organizations to elect their representatives in full freedom, as required by the provisions of the Convention. Further, the widespread use of temporary contracts by employers constitutes a significant limitation to the right to organize, as these contract workers are not allowed to participate in referendums for the creation of trade unions. The Government should ensure that contract workers are able to fully enjoy their rights as guaranteed under the Convention.

Regarding the right to strike of public employees, especially teachers, 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 its legislation that impose penalties for doing so. The Worker members therefore call on the Government to take comprehensive action to bring all relevant law and practice in Sint Maarten into line with the Convention. We also observe that Sint Maarten has no established culture of consultation with the social partners. Noting the importance of social dialogue to devising and implementing law and practice that are in line with ILO Conventions, we urge the Sint Maarten Government to swiftly act to engage with the most representative workers’ and employers’ organizations to establish regular, formal consultations on the matters raised by the Committee of Experts and others relating to the competence of the ILO as set out in Convention No. 144. Finally, we invite the Government to continue to avail itself of the technical assistance of the ILO.

Employer members – On behalf of the Employer members, we thank the various speakers and, in particular, the Government of Sint Maarten. On the substance, we insist on the fact that the Convention is a fundamental Convention and that as such, it requires special attention from the ILO, from governments and social partners. Our position with regard to Sint Maarten remains clear: we do not compromise the freedom of association of employers. The Employer members therefore urge the Government to take immediate and effective measures to ensure that, both in law and practice, freedom of association for employers is fully guaranteed in its territory.

We ask the Government to take the following measures:

(i) start a dialogue with the employers’ organizations on the creation and functioning of the umbrella association of employers SEA and their participation in the SER, in full respect of the Convention;

(ii) take the necessary measures, in consultation with the social partners, to ensure that workers’ and employers’ representatives on the SER are appointed by organizations that are completely autonomous and freely established by workers and employers, as well as to engage in dialogue with the ECSM on issues that affect the interests of private sector companies;

(iii) to follow up, in a constructive manner, on the conclusions of the Committee, we urge the Government to request technical assistance from the ILO, with a view to bringing the national situation into conformity with the Convention; and

(iv) fully respond to the Committee of Experts’ comments that have been pending since 2017. We emphasize the quality and relevance of this data, as well as future regular reports, to be able to assess the effective progress in law and practice in the application of the Convention.

We all support lifelong learning as a key concept, but in this case, lessons should have been learned by now. We therefore really want to see a positive attitude from the Government to make sure this national case does not have to appear a third time before the Committee.

Conclusions of the Committee

The Committee took note of the oral and written information provided by the Government and the discussion that followed.

The Committee expressed with deep concern that the Government had not implemented the previous recommendations of the Committee.

Taking into account the discussion, the Committee urges the Government, in consultation with the social partners, to:

- fully implement all pending recommendations of the Committee;

- refrain from any undue interference with the right to freedom of association of employers’ and workers’ organizations, including any interference through the promotion of organizations that are not freely established or chosen by workers and employers, and ensure that this right is fully guaranteed both in law and in practice;

- ensure in law and practice the ability of workers’ and employers’ organizations to establish higher-level organizations in full freedom, including for the purpose of participation in the Socio-Economic Council (SER);

- ensure that workers’ and employers’ representatives on the SER are appointed by autonomous organizations freely established by workers and employers and convene the SER without delay;

- engage in a dialogue with autonomous organizations freely established by workers and employers on all matters affecting their interests or of their members; and

- ensure that public sector workers are able to fully exercise the rights and guarantees protected under the Convention in law and practice.

The Committee once again encourages the Government to request technical assistance from the ILO, with a view to bringing national law and practice fully in conformity with the Convention.

The Committee requests the Government to provide a report containing information on all measures taken and progress achieved to the Committee of Experts before 1 September 2023.

Government representative – The Government acknowledges the conclusions and recommendations of the Committee and is committed to addressing the concerns brought forward. The Government fully embraces the concept of social dialogue and the importance of the tripartite consultations. As a small island State, we recognize the challenge of having a strong civil society and having the necessary expertise to execute all that is needed to adhere to international standards. As such, we reiterate the need for, and welcome the technical assistance from the ILO which was requested in 2022. We look forward to being able to resolve the issues together, following the recommendations and coming to amicable solutions for everyone involved and thereby ensuring adherence to Convention No. 87.