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

Individual Case (CAS) - Discussion: 2024, Publication: 112nd ILC session (2024)

Written information provided by the Government

On 3 May 2024, a new Government took office in Sint Maarten. The Government was informed of the ongoing case and has committed itself to giving this matter its highest priority. International as well as local labour issues are highly regarded by the Government and will be addressed with the utmost urgency. In order to give the necessary attention to this subject matter, the new Ministers are in the process of a rigorous onboarding within which the ongoing labour dispute is featured, with the intent of ensuring that all parties are heard. It is important to underscore the Government’s commitment to recognizing and supporting social dialogue as part and parcel of good governance.

Furthermore, it should be stated that the Government, upon the recommendation of the Committee, has contacted the ILO Regional Office in Trinidad with a request for technical assistance on this matter and has been in constant contact with the said Office. The Government assures the Committee that the matters addressed in its recommendations will be duly dealt with in accordance with approved and accepted international standards.

The Government is therefore of the opinion that a third appearance before the Committee will be counterproductive at this time.

Actions undertaken by the Government since the 111th Session (2023) of the Conference include:

• the Government, in its quest to resolve the Committee’s case, kept in contact with the ILO Regional Office;
• the ILO Regional Office concluded that the Soualiga Employer Association (SEA) is not recognized by the ILO as an employers’ organization and therefore requested the assistance of the Government in facilitating the consultation with them;
• the Government complied with the request of the ILO Regional Office to facilitate a discussion with both the SEA and the Employers’ Council of Sint Maarten (ECSM). These meetings were held separately and were facilitated by the Honourable Minister of Labour on 3 August 2023 and 11 September 2023;
• as a result of these discussions, the SEA amended their statutes/articles of incorporation in order to be in compliance with the Convention, and the amended articles were sent to the ILO Regional Office on 5 December 2023;
• the ILO Regional Office confirmed receipt of the amended statutes/articles of incorporation on 5 December 2023 and said that the documents would be shared with colleagues at headquarters in Geneva for review and advice on follow-up;
• the Government met with the ILO Regional Office in December 2023 to discuss the amended statutes/articles of incorporation. The ILO Regional Office took note of the changes and indicated that these were to be sent to headquarters in Geneva for an expert to review;
• on Wednesday, 31 January 2024, a follow-up meeting with the ILO Regional Office and an ILO expert from headquarters in Geneva regarding the statutes/articles of incorporation was held;
• the Government was informed that the amended statutes/articles of incorporation were sent to the Conference Committee and/or the Committee of Experts and that within ten days the Government would receive recommendations from the Committee of Experts on how best to proceed. The expert suggested that the Government meet with the social partners (ECSM) to get their feedback on the matter;
• the Director of the ILO Regional Office concluded that it is the Government’s responsibility to appoint the members of the Social Economic Council (SER) Board. As such the Government has begun the process.

The Government requests the Conference Committee’s indulgence and understanding with the hope for a positive consideration of its request. The Government will continue to strive for full compliance with international standards as stipulated in the respective ILO Conventions that are applicable to Sint Maarten.

Discussion by the Committee

Chairperson – I invite the representative of the Government of Sint Maarten, Kingdom of the Netherlands, the Minister of Public Health, Social Development and Labour, to take the floor.

Government representative – Upon becoming an autonomous country within the Kingdom of the Netherlands in 2010, Sint Maarten has made a commitment to adhere to all ILO Conventions made applicable to us, and to strive to bring its legislation in line with those Conventions. In this context Sint Maarten has undertaken the following actions:

• We have established a Tripartite Advisory Committee (TPC) to the Minister of Public Health, Social Development and Labour in 2011.
• We have prepared a gap analysis regarding the adherence to Conventions of the ILO. The intention is to eliminate the gaps by bringing the legislation up to par with the Conventions in 2013.
• Tripartite Consultation (International Labour Standards) Convention (No. 144), 1976, was made applicable to Sint Maarten in 2013.
• The Penal Code was amended and the articles prohibiting the right to strike were revoked in 2015.
• A Consensus Document regarding the amended articles in Book 7, title 10 of the Civil Code of Sint Maarten in conjunction with major labour reform, was signed with the social partners in 2019.

The above is clear evidence that the Government of Sint Maarten has embraced the concept of social dialogue from day one and continues to be committed to working towards the further enhancement of that concept.

Sint Maarten, in previous correspondence and reports has made all efforts to address all conclusions and recommendations made by your esteemed Committee. The Government notes, as indicated in the report of the Committee of Experts of May 2024, that the issue of adherence to Article 3 of the Convention still needs further clarification and I will do so now.

The statements previously made by Government that the Soualiga Employers Association (SEA) is a legally established organization, and that section 3 of the National Ordinance of the Social Economic Council of Sint Maarten allows for multiple employer organizations to be represented on the Social Economic Council are statements of fact as laid down in national legislation and upheld by the Joint Court of Justice of Aruba, Curacao, Sint Maarten and Bonaire, Sint Eustatius and Saba.

These statements, however, do not speak to the discussion at hand regarding the manner in which the establishment of the SEA took place.

The Government also notes that the Committee of Experts has stated to have noted with deep regret that the Government has sent nomination letters dated 23 May 2023 to the Employers’ Council Sint Maarten and the SEA to ask them to jointly select three members for the term 2023–26 of the Social Economic Council.

The Government acknowledges this fact, however notes that this action was undertaken prior to the session with your esteemed Committee, thus prior to having taken note of your conclusions of 12 June 2023. Based on the aforementioned conclusions the Government has re-evaluated its position and has therefore decided not to include the SEA in the process of nominating members to the Social Economic Council. The necessary documentation to that effect has been submitted to His Excellency the Governor of Sint Maarten for final approval. The Government considers the action that led to the conclusion that the Government acted in contravention of Article 3 of the Convention “an unfortunate mistake based on good intentions, nevertheless a mistake”. The Government however deems it necessary to state that it is the Government’s duty and obligation to create an environment where all social partners have the equal opportunity to make their voices heard regarding matters affecting them, their members and their communities as a whole. It is equally important that no one organization, including the Government, dominates the narrative as this would conflict with the spirit of social dialogue.

With regard to the rights of workers’ organizations to organize their administration and activities, the Committee of Experts states that it noted with regret that the Government has not provided the information requested whether public employees who were prevented from striking by section 374(a), (b) and (c) of the old Penal Code are forbidden from striking under the most recent Penal Code of 2015. The Committee of Experts also states that it has noted that the National Ordinance on Substantive Civil Service Law has been amended to allow the Courts to forbid strikes which threaten the public welfare or safety, and requests the Government to provide information on the circumstances in which strikes may be prohibited on the basis of that Ordinance.

The Government in its response, dated 18 November 2022, to the observations of the Committee of Experts regarding the right to strike addressed these concerns and will once more do so. Neither the new Penal Code, nor the Civil Code nor the Civil Service Law contain any articles that infringe on the right to strike of any workers in the private or public sector. This right is derived from the European Social Charter Article 6.4 and from case law. Eleven paragraphs of the European Social Charter, namely, Articles 1, 5, 6 and 16 of the 1961 Charter and Article 1 of the 1988 Additional Protocol, remain applicable to Aruba, Curacao, Sint Maarten and the Caribbean Part (Bonaire, Sint Eustatius and Saba).

Article 6 reads as follows: In order to ensure the effective exercise of the right to collective bargaining, the Parties undertake to: (i) promote joint consultation between employees and employers; (ii) promote, where necessary and useful, the establishment of a procedure for voluntary bargaining between employers or employers’ organizations and workers’ organizations, with a view to determining remuneration and working conditions by means of collective agreements; (iii) promote the establishment and implementation of an effective mediation and voluntary arbitration procedure for the settlement of labour disputes; and (iv) acknowledge the right of workers and employers to take collective action in cases of conflicts of interest, including the right to strike, subject to obligations under previously concluded collective agreements.

Employees, public servants, including teachers, or their representative workers’ organizations, have the right to collective action. These employees or their representative workers’ organizations have the freedom to choose the means of action, such as strike.

The Government of Sint Maarten has no intentions or desire to restrict the rights of any person or organization. However, while safeguarding the rights of all individuals, the Government must also make sure that those rights do not infringe on the rights and freedoms of others, and protect law and order, and national security.

The Government also commits to convening a special tripartite consultation meeting with the social partners to evaluate these experiences and decide how best we can move forward while respecting each other’s rights and obligations. The Government looks forward to convening this meeting before year’s end.

On behalf of the Government of Sint Maarten, I thank your esteemed Committee for the opportunity for us to be able to convey to you our commitment to adhering to international standards and to recognize the tremendous contribution of the ILO to Social Justice worldwide.

Worker members – This will be the third consecutive time that our Committee has examined the application of the Convention by the Government of Sint Maarten.

We note that this case concerns the practice of the authorities in Sint Maarten which affects the right of organizations to elect their representatives in full freedom and, more specifically, the concerns raised that a Governmental agency in Sint Maarten has established the SEA, an umbrella organization, to represent employers within the tripartite Social Economic Council (SER), to the detriment of the Employers’ Council of Sint Maarten (ECSM).

In its 2023 report to the Committee of Experts, the Government indicated that the SEA is a legally established organization, that section 3 of the National Ordinance of the Social Economic Council of Sint Maarten allows for multiple employer organizations to be represented on the Council, and that nomination letters were sent to the ECSM and the SEA to ask them to jointly select three members for the 2023–26 Council’s term.

The Committee of Experts noted the persistence of undue interference in the right to freedom of association and requested once again the Government of Sint Maarten to take measures to ensure that the Employers’ representatives to the Social Economic Council are only appointed by organizations which are freely established or chosen by employers.

We note that in view of the discussion in our Committee, the Government provided additional information in May 2024, indicating that technical assistance was being provided by the ILO. However, no specifics were supplied as to the framework and scope of the technical assistance, nor was any clarification provided regarding progress made towards the full implementation of the 2023 conclusions of this Committee.

The Worker members wish to reiterate the importance that should be attached to the right for organizations to elect their representatives in full freedom and to be free from any undue interference of the authorities in the exercise of this right, as provided by Article 3 of the Convention.

The provisions in the Convention exist to ensure the independence of the social partners. For the social partners, independence is an absolute concept. A workers’ or employers’ organization cannot be slightly independent. Any form of Government interference represents an attempt, whether successful or not, to control the behaviour of social partners and is unacceptable.

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. We urge the Government to continue to avail itself of the ILO technical assistance with a view to giving full effect to the observations of the Committee of Experts and the previous conclusions of this Committee.

These developments should not detract from the persistent obstacles faced by workers and trade unions of Sint Maarten in exercising their right to organize and to carry out activities. Reports from trade unions indicate that employers in Sint Maarten regularly engage in union busting practices and acts of antiunion discrimination. Employers also interfere in referendum processes for the recognition of collective bargaining units, by artificially lowering the size of the workforce to under the statutory threshold. Contract workers do not count towards the calculation of the size of the workforce for recognition purposes. Such workers are also particularly vulnerable to antiunion practices as they face non-renewal of their contract, or the threat thereof, if they attempt to establish or join a trade union. The national legal framework does not provide adequate protection to workers against acts of interference.

We urge the Government of Sint Maarten to take the necessary measures to ensure that workers and trade unions are adequately protected against acts of anti-union discrimination and acts of interference, in line with Article 3, paragraph 2 of the Convention.

Finally, the Worker members note that for the past seven years, the Committee of Experts has raised serious issues regarding the right of public employees to take collective action and that these issues remain pending to this day. More specifically, since the introduction of the revised Penal Code in 2015, it is unclear whether the provisions prescribing prison terms for public employees, including teachers, taking part in collective action remain in force.

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 collective action. Therefore, we call on the Government to ensure, in law and in practice, that public employees can fully exercise their right to organize and organize their activities and to repeal any provisions in its legislation imposing penalties.

Employer members – I would like to thank the representative of the Government of the Netherlands – Sint Maarten for the explanation on the national situation and for the written information provided. This case is being heard by the Committee for the third consecutive year. We will, therefore, get right to the heart of the matter without repeating the entire history of this challenging case.

Until yesterday, we were faced with the unfortunate lack of total progress on the part of the previous Government to respect the principles of the Convention, despite our Committee’s recommendations from 2022 and 2023. However, we were informed informally yesterday afternoon, that the new Government of Sint Maarten has taken the initiative to amend the composition of the employer representation on the country’s Social Economic Council (SER).

We have heard similar oral explanations from the Government today. Unfortunately, in the absence of written and verified information, it is impossible for the Employers’ group to take a definitive position on this development. It is unclear for example, whether this announcement is merely performative or whether it is in fact an important and meaningful step to resolve the issue of the free appointment of employers’ representatives, though we certainly hope it is the latter.

What is at stake in this case? In short, in 2022 and 2023 the Committee requested the Government 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 that were not freely established 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 country’s Social Economic Council and to provide information on the outcome of the legal appeal concerning the composition of that council.

As already explained both last year and the year before, the Government of Sint Maarten created the SER by national decree following the granting, in 2010, of its semi-autonomy status vis-à-vis the Kingdom of the Netherlands. The SER is intended to be a tripartite economic and social council.

In practice, through the Chamber of Commerce, 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 Chamber of Commerce nor the SEA reflects a freely chosen and freely organized representation of the employers of Sint Maarten.

Unfortunately, Sint Maarten has been without a functioning Social Economic Council for several years, preventing employers and employees from playing their vital role in the governing and legislative process. In particular, the SER-meetings were suspended by the previous Government. It has not been composed, renewed or convened for four years now. During this time, the social partners have not been consulted on social legislation or on the issues affecting their interests, including the preparation of the Government’s reports to the ILO, as well as on laws regarding minimum wage, social security and taxation.

In 2023, national legislation pertaining to the SER was amended. Additional requirements were put in place that further restrict the freedom of employers and employees to elect their representatives. A provision to create a member profile by national decree was added and a two-term limit for membership was introduced. These amendments allow the authorities to set up additional criteria for membership eligibility at any time. We note with deep regret that it appears that national legislation has in fact gone in the opposite direction from the recommendations of this Committee.

The ECSM met the previous Government on 3 August 2023, after last year’s CAS discussion. On 15 March 2024, it met again with the Government about the division of SER seats as between the SEA and the ECSM. At this meeting with the Prime Minister, the SEA and SER staff, the ECSM was informed about the change to the statutes of the SER. There was little room for discussion, however.

Yesterday, we were informed that the new Government, in place since early May 2024, no longer intends to nominate an employers’ member of the SEA to the SER, but rather somebody from a third association. However, we note with concern that this third association appears to have close connections with the Government and thus that the Government still does not appear to have understood the principles of freedom of association provided for under Article 3 of the Convention.

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 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 absolutely. 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 and the year before, we quoted paragraphs 95 and 108 of this General Survey, which condemn in particular any favouritism, any unequal treatment between organizations and which recommend that the legal framework be limited to a global framework that leaves organizations maximum autonomy in their operation and management. Restrictions on this principle should have the sole purpose of safeguarding the interests of members and guaranteeing the democratic functioning of organizations.

In consideration of the context of this particular case, and as there is no clear criteria contained in national legislation, any action of the Government to unilaterally choose a representative organization should be considered interference in employers’ rights to freely elect their representatives.

In conclusion, 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, despite the conclusions of our Committee in 2022 and 2023. We, therefore, once again are calling on 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 organizations freely established or chosen by workers and employers, as well as to engage in dialogue with the ECSM on issues that affect the interests of private sector employers. 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 in this regard.

Before concluding, I will make a brief remark concerning the Committee of Experts’ comments regarding the exercise of the right to strike. The Employers recall their disagreement with the Committee of Experts’ view concerning Convention No. 87 and the right to strike. They wish to emphasize that neither Convention No. 87 nor any other ILO Convention contain rules on the right to strike. This fact has also been highlighted by the Government group in their position statement of March 2015 according to which “The scope and conditions of this right are regulated at the national level.” As a consequence, governments can legitimately determine their own approach to the right to strike. The Employers will therefore abstain from commenting on these points.

Worker member, Netherlands – I am the Workers’ representative for Sint Maarten, and as the Workers’ representative, I would like to highlight the significant issues we are facing, particularly regarding the Convention and the right to strike. These concerns are deeply affecting our workers, especially contract workers, who are often the most vulnerable to abuse and intimidation. I would repeat a lot of what the Worker members’ spokesperson said with an elucidation here and there.

When it comes to freedom of association, employers in Sint Maarten are currently allowed to determine who can be represented by workers’ organizations. This is particularly problematic for contract workers, who fear that their contracts will not be renewed if they assert their rights to elect representation. Teachers are affected as certain faith-based school boards do not allow representation at their schools. This situation is exacerbated by the Government’s role in referendums. It has also come to my attention that the word referendum is not clear, so I will clarify.

In order for a union to gain sole bargaining power for workers, there must be 50 per cent plus one of the workforce that would show interest by registering for the worker representative of their choice in order for a referendum to be organized by the Government mediator. Should a 50 plus one not be achieved, then even those members that would have requested representation would not be allowed to be represented by the workers’ representative as the score needed to obtain sole bargaining power was not achieved despite their being workers seeking representation.

The Government of Sint Maarten acknowledges and recognizes the Convention. However, as explained previously, during referendums, the employer is allowed to decide who can participate in the referendum, or the electing of a union to represent the workers of the company. This often results in employers opting for contract workers to be excluded from the referendum. Repercussions that a contract worker would usually experience are: the non-renewal of the contract, intimidation on the job, and these are among other disciplinary actions.

We, as representatives, knowing the outcome of a contract worker yielding towards representation of the union, tend to go along with the decision or the option taken by the employer, in order not to undermine the workers’ rights. The current situation with the Employers’ Council and the Government also has an impact on workers as the Social Economic Council is not able to implement its function, thus decisions are being made that can affect the workers negatively as the SER is non-functioning.

I will go over to the right to strike. While the removal of the articles of the old Penal Code that hindered the workers from striking is applauded, the situation regarding the right to strike is still very concerning. In order for workers not to feel intimidated, we, the workers’ representatives, use the term “urgent meeting during work hours” even though the outcome is the same; workers down their tools or they strike. This is done as workers are intimidated by the word "strike" because of the consequences that will follow. Employers include clauses in contracts prohibiting strikes or any industrial action, leading to immediate dismissal if these clauses are breached. In the public sector, workers face penalties such as no pay, forced use of vacation time, or warnings if they engage in any form of industrial action. This high level of intimidation discourages workers from exercising their rights.

These issues were discussed with the Government, and there is a commitment to address them in a tripartite session. However, the installation of the Social Economic Council, once again, which is crucial for these discussions, has not yet taken place due to ongoing debates with the Employers’ Council and the Government.

Employer member, Germany – On behalf of the Employer Council Sint Maarten (ECSM), I would like to present the following statement. This is the third time in three years that the case Netherlands – Sint Maarten on the Convention is being handled by the Committee.

Employers consider all statements made in the previous sessions as repeated. The same applies to all the Committee of Experts’ comments and recommendations. The Convention is a fundamental Convention. The right of freedom of association for employers and employees and their right to freely elect their representatives without interference by the authorities is fundamental.

We refer to the ILO Declaration of Philadelphia in its entirety and Part I(d) specifically. Sint Maarten’s Constitution outlines legal regulations in article 81. Sint Maarten’s Constitution recognizes freedom of association under its article 12. The Charter of the Kingdom refers to fundamental rights in article 43: “1) Each of the countries is responsible for the realization of fundamental human rights and freedoms, legal certainty and sound governance. 2) Guaranteeing these rights, freedoms, legal certainty and sound governance is a matter for the Kingdom.”

It appears to the Employer representative organizations of Sint Maarten, that the fundamental right, the Convention, is not being respected in Sint Maarten. The national Government has continuously interfered with employer representation and has admitted such to the Committee previously.

The SEA, as the original statutes clearly show, was established by the Chamber of Commerce, a public law entity with mandatory membership on the request of the Prime Minister.

The first time the case was heard by the Committee, the Government made the following statement: “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. 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.

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.”

The written comments by the Government in preparation for the 2024 Committee read as follows: “The Government complied with the request of the ILO Regional Office to facilitate a discussion with both the SEA and ECSM. These meetings were held separately and were facilitated by the Honourable Minister of Labour on 3 August 2023 and 11 September 2023. As a result of these discussions, the SEA amended their statutes/articles of incorporation in order to be in compliance with the Convention and the amended articles were sent to the ILO Regional Office on 5 December 2023.”

It would appear that the results from various meetings were the Government interceding on the SEA’s behalf and facilitating a change in statutes of the SEA. This change of statutes amounted to erasing all reference of the Government instruction to the Chamber of Commerce and Industry, a public law entity with mandatory membership, to establish the SEA. It is the Employers’ understanding that the authorities communicated with the ILO regarding changing SEA statutes, since the ILO does not recognize the SEA. This would again appear to be interference on the part of the authorities.

The often-repeated recommendation for dialogue was not followed up on by the authorities. In 2023 national legislation pertaining to the social economic council was changed. Additional requirements were put in place that restrict the freedom of employers and employees to elect their representatives. A provision to create a member “profile” by national decree was added. This would in fact allow for the authorities to set additional criteria for membership eligibility at any time, bypassing a parliamentary vote that doing so by law would require.

A two-term limit for members was also introduced in the national legislation. Employers feel this is a restriction on their right to freely elect their representatives. It should be the sole right of employers and workers to decide whether they nominate their representatives for more than two terms.

On the morning of 7 June 2024, the ECSM was informed that the Government no longer intends to nominate a member of the SEA to the SER. This nomination will not be done by the ECSM, but by a third organization. ECSM was established by four recognized employer organizations. Collectively ECSM represents approximately 420 employers and approximately 7,000 jobs, that is about 30 per cent of the national workforce.

Employers question on what basis this third organization is deemed representative for employers by the authorities. It was clearly not deemed representative by the authorities over the course of the last three years, and never mentioned in the Committee before. Indications are that this third organization was, much like the SEA, established through facilitation of the Chamber of Commerce and has the Chamber of Commerce as an Honorary member.

Where the representativity of employers’ and workers’ organizations participating in social dialogue at national level, such as in the Social Economic Council, is concerned, it would appear that in the absence of objective, pre-established and precise criteria to determine the representativity of any organization of employers established in legislation, the authorities continue to exercise a wide margin of discretion.

In consideration of the context of this particular case, since there is no clear criteria contained in national legislation, any action of the Government to unilaterally choose a representative organization should be considered interference in employers’ rights to freely elect their representatives.

It would appear that the authorities have not followed the Recommendations of the Committee of Experts where it pertains to bringing national legislation in line with the Convention. To the contrary, it appears that national legislation now contains more conflicts with the Convention. One of the results of the national authorities’ actions is that for over a year, no appointments have been made to the Social Economic Council of Sint Maarten.

A higher advisory council established by law, was made up of representatives of employers, workers and independent members to advise our national Government. An entity whose advice is mandatory when it comes to legislative changes in many areas such as minimum wages and social security. This is a de facto suspension of the highest level of social dialogue, unilaterally by the national authorities, without any legal basis. Not only does this appear to employers as a violation of fundamental rights, it also violates the principles of legal certainty and sound governance. While these points fall under the national Government to realize, they fall under the kingdom Government to ensure.

In conclusion, the ECSM hope that with the attention provided us here, the recommendations from the Committee and the Committee of Experts will provide clear guidance to both the national Government as well as the kingdom Government, to ensure both employers and workers have access to their rightful spaces, as prescribed by the Convention, by law, which is fundamental to the proper functioning of our constitutional democracy.

Observer, Public Service International (PSI) – We would like to echo the comments raised in her intervention by the Workers’ representative of Sint Maarten and stress the importance of complying with the fundamental principles enshrined in the Convention, also in practice.

We would also like to underline that many of these issues were previously raised by the Workers’ representative during the discussion in 2023, and we hope that they are duly acknowledged in the conclusions of this case.

In this regard, it was mentioned that in Sint Maarten, the ability of workers to freely organize and be represented by Workers’ organizations is compromised, and that employers seem to have the ability to determine who can be represented by these organizations. This situation is especially problematic for contract workers who live in constant fear that asserting their rights will result in their contracts being terminated. This fear, in addition, creates a culture of silence and compliance, where workers are unable to advocate for better conditions or challenge unfair treatment without risking their livelihood.

Moreover, employers seem to have the ability to decide who can participate in referendums on union representation. This often leads to contract workers, again, being excluded to avoid conflict, effectively undermining their rights and perpetuating a cycle of neglect. Incidentally, the threshold for these referendums, 50 per cent plus 1 of workers – seem to be excessive, as per previous observations by the Committee of Experts.

Teachers, particularly those in certain faith-based schools, face significant barriers as some school boards do not allow representation at their institutions. This exclusion is not just a violation of their rights but also a step back in ensuring a fair and equitable working environment for all educators.

While we acknowledge and applaud the removal of articles in the old Penal Code that prevented workers from taking industrial action, the situation in practice remains problematic.

It was mentioned that employers frequently include clauses in contracts that prohibit any form of industrial action and that breaching these clauses often leads to immediate dismissal, effectively silencing workers and stripping them of their right to protest unfair conditions. Also, in the public sector, workers who engage in any form of industrial action face penalties. This level of intimidation, as we all know, is a powerful deterrent, discouraging workers from exercising their legitimate rights to collective action and protest.

We heard that these issues have been brought to the attention of the Government, and there is a commitment to address them through tripartite discussions, which we celebrate. However, the establishment of the Social Economic Council, which is essential for facilitating these discussions, has been delayed due to the ongoing discussions between the Employers’ Council of Sint Maarten and the Government. This delay is unacceptable and further compounds the challenges faced by workers.

Therefore, to conclude, we hope that the Government gives due consideration to the Employers’ group’s concerns in this case and restores the capacity of the Social Economic Council to address and resolve important issues raised by the Workers’ delegate.

Chairperson – I give the floor to the representative of the Government of Sint Maarten for her concluding remarks.

Government representative – We have taken note of the comments made by the social partners especially those of the Worker representatives of Sint Maarten and others. We will weigh those comments when finalizing our path forward.

We have already committed ourselves to convene a session with our social partners being employers’ and workers’ representatives on the Tripartite Committee to discuss the implications of ILO Conventions Nos 87 and 144. I am convinced that once we conclude that exercise, we would be in a better position to resolve the challenges encountered.

It would be remiss of me not to mention that although it is constantly mentioned here about the SEA and the Chamber of Commerce input in the SER, at this time, those two organizations are not included in our SER. I have also taken note of the ECSM’s standpoint as was brought forward by their representative, in indication that the Government has close ties with the third Employer organization, this, I can emphatically say, is not so. The Prime Minister has met with the ECSM representatives and up to two days ago felt as if we were on the right page. It is very important for our small community to have the SER, the tripartite organization in place. Not having it in place hampers a lot of our decision-making on the island. As such, we emphasize that we are doing everything possible to put the SER in place. Our new Government was sworn in on the 3 May 2024, a little bit more than a month ago, and we have since tried to put the SER in place.

Employer members – We thank the various speakers, including notably, Madam Minister, representing the Government of Netherlands 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 from social partners. Our position with regards to Netherlands Sint Maarten is clear: we do not compromise on 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 in continued practice, freedom of association for employers is fully guaranteed in its territory.

We ask the Government to take the following measures:

• define objective criteria of representativeness of social partners organizations, in order to avoid arbitrary political decisions;
• start an effective dialogue with the Employers’ organizations on the composition of the Social Economic Council (SER), in full respect of the Convention;
• 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;
• fully respond to the Committee of Experts’ comments that have remained pending since 2017. We emphasize relevance of regular reports and the importance of their quality, in order to be able to assess the effective progress in law and practice in the application of the Convention.

To follow up, in a constructive manner, on the conclusions of our Commission, we urge the Government to request technical assistance from the ILO, with a view of bringing the national situation into conformity with the Convention. We really hope to see a positive approach by the Government to ensure that this national case does not need to appear for a fourth time before our Committee.

Worker members – Thank you to the Minister from Sint Maarten for her helpful and constructive remarks. We also thank all the speakers who took the floor. We welcome the information provided by the Government indicating that the Soualiga Employers’ Association has been excluded from the composition of the Social Economic Council, which gives us hope that this matter will finally be resolved. We trust that the Government will follow up its positive statements with actions carried out in consultations with the social partners and with the continued assistance of ILO technical assistance. We look forward to hearing further evidence of the Government’s commitment through the ILO, which we hope will also be confirmed by our Worker colleagues in Sint Maarten. We emphasize that the authorities have an obligation to promote and ensure the effective application of the Convention, including the rights of organizations to elect their representatives and to establish higher-level organizations in full freedom as prescribed by the provisions of the Convention. Furthermore, we urge the Government of Sint Maarten to take the necessary measures to ensure that workers and trade unions are adequately protected against acts of anti-union discrimination and acts of interference in line with Article 3(2) of the Convention. Regarding the right of public employees to take collective action, we call on the Government to ensure in law and in practice that public employees can fully exercise this right and to repeal any provisions in its legislation imposing penalties.

Conclusions of the Committee

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

Taking the discussions into account, the Committee requested the Government to:

• define in meaningful and effective consultation with respective social partners, criteria of representativeness of employers’ and workers’ organizations that are clear, pre-determined and objective;
• engage in meaningful and effective dialogue with workers’ and employers’ organizations on all matters affecting their interests or of their members, in full compliance with the Convention, including on the composition of the Social-Economic Council (SER); and
• take the necessary measures to ensure that workers’ and employers’ representatives on the SER are only appointed by fully autonomous organizations freely established or chosen by workers and employers and convene the SER without delay.

The Committee requested the Government to provide information on the above measures including all outstanding information requested by the Committee of Experts by 1 September 2024.

Government representative – The Government has taken note of the comments made by the various parties who gave their opinion during this hearing and thanks them for their input.

I believe that the Government of Sint Maarten has addressed the most important points brought forward by both Employer and Worker representatives. The Government has withdrawn its request to the SEA to nominate representatives to be appointed as member and substitute member respectively. The Government has requested technical assistance from the ILO as was concluded by your Committee. The Government commits to organize a session with the Tripartite Committee on Labour to discuss the way forward in compliance with Conventions Nos 87 and 144.

As was stated in the presentation on Monday, it is the Government’s duty and obligation to create an environment where all social partners have equal opportunity to make their voices heard regarding matters affecting them, their members, and their communities as a whole. It is equally important that no one organization, including the Government, dominates the narrative as this would be in conflict with the spirit of social dialogue.

Sint Maarten will put action to the words spoken at this hearing and I am confident that the Government and the social partners will resolve these matters in the spirit of social dialogue.

In ending, allow me on behalf of the Government of Sint Maarten to thank you, the members of your Committee and all who have, in one way or the other, gave their input during this hearing. A special thank you to the delegation members of the Netherlands, Aruba and Curaçao for their support and advice.

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

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.

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

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.

Observation (CEACR) - adopted 2023, published 112nd ILC session (2024)

Sint Maarten

Previous comment

The Committee notes the observations of the International Organisation of Employers (IOE), received on 1 September 2023, reiterating the comments made in the discussion held in the Conference Committee on the Application of Standards in June 2023 on the application of the Convention.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 111th Session, June 2023)

The Committee takes note of the discussion that took place in the Conference Committee on the Application of Standards (Conference Committee) in June 2023 concerning the application of the Convention. The Committee observes that the Conference Committee urged the Government, in consultation with the social partners, to: (i) fully implement all pending recommendations of the Conference Committee; (ii) 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; (iii) 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); (iv) 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; (v) engage in a dialogue with autonomous organizations freely established by workers and employers on all matters affecting their interests or of their members; and (vi) ensure that public sector workers are able to fully exercise the rights and guarantees protected under the Convention in law and practice. The Conference Committee once again encouraged the Government to request technical assistance from the ILO, with a view to bringing national law and practice fully in conformity with the Convention. Finally, the Conference Committee requested the Government to provide a report containing information on all measures taken and progress achieved to the Committee of Experts before 1 September 2023.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. The Committee had previously noted with deep regret the information from the Sint Maarten Employers Council (ECSM) that the Government had apparently granted the Soualiga Employer Association (SEA), whose establishment had been facilitated by a governmental agency, one seat on the SER, and had urged the Government 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. The Committee notes with deep regret that the Government indicates that the SEA is a legally established organization, that section 3 of the National Ordinance of the Social Economic Council of Sint Maarten allows for multiple employer organizations to be represented on the SER, and that nomination letters dated 23 May 2023 were sent to the ECSM and the SEA to ask them to jointly select three members for the term 2023-2026 of the SER. The Committee also notes the Government’s indication that it met with the ECSM to discuss the applicability of the Convention, and that it requested technical assistance from the Office. The Committee strongly urges the Government to take the necessary steps to ensure that the employers’ representatives to the SER are only appointed by organizations which are freely established or chosen by employers, and requests it to provide information on any progress made in this regard.

Right of workers’ organizations to organize their administration and activities. In its previous comments, the Committee had requested the Government to specify whether public employees, who were prevented from striking by section 374(a), (b) and (c) of the old Penal Code, are forbidden from striking under the Penal Code of 2015. It had also noted that the National Ordinance on Substantive Civil Service Law had been amended to allow the courts to forbid strikes which threaten public welfare or safety, and requested the Government to provide detailed information on the circumstances in which strikes may be prohibited on the basis of that Ordinance. The Committee notes with regret that the Government does not provide any information in this regard. The Committee once again requests the Government to indicate whether public employees, such as teachers, are forbidden from striking under the new Penal Code, and to provide a copy thereof. The Committee also reiterates its request that the Government provide detailed information on the circumstances in which strikes may be prohibited based on the National Ordinance on Substantive Civil Service Law.

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

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.

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

The Committee notes the joint observations of the Sint Maarten Hospitality and Trade Association (SHTA) and the International Organization of Employers (IOE) received on 1 September 2021 and referring to the matters addressed below.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. The Committee previously noted the observations of the SHTA received on 30 September 2020, which alleged that the Chamber of Commerce and Industry (COCI), a governmental agency, had established the Soualiga Employer Association (SEA), an umbrella organization to represent employers, including at the tripartite Social Economic Council (SER). The SHTA alleged that through the COCI and the SEA, the Government was attempting to establish an employer representative organization that is more in line with its position and does not reflect actual diligent representation and that this appeared to be an attempt to marginalize the existing employer representative groups. The Committee requested the Government to provide its comments on these serious allegations.

The Committee notes the Government’s reply to these observations, received on 19 July 2021. It takes note of the Government’s indication that: (i) the SER is an independent advisory organization where representatives from employers’ and workers’ organizations and independent experts discuss draft legislation and conduct social research into the effects of governmental decisions; (ii) the Government decided to restructure the board of the SER to resolve the unbalanced representation of employers’ organizations; (iii) it mandated the COCI to facilitate the establishment of an umbrella employer organization from which the various employers’ organizations would obtain membership, which led to the establishment of the SEA on 4 September 2020; (iv) while the COCI was executing its mandated instruction, the SHTA, together with three other employers’ organizations, established the Sint Maarten Employers Council (ECSM), as an umbrella employers’ organization incorporated under the laws of Sint Maarten; and (v) both the SEA and the ECSM are currently represented on the board of the SER.

On the other hand, the Committee notes with concern that the SHTA and the IOE allege that: (i) the establishment of the SEA did not comply with the Ministerial Decree “Instructions for regulations”, which required consultations with relevant stakeholders, such as employers’ organizations; (ii) the COCI, as a government agency, could not set up an umbrella employers’ association, especially when recognized employers’ associations were not consulted; (iii) the SEA undermines the employers’ right to freely choose their representation under article 12 of the Constitution of Sint Maarten; (iv) the COCI and SEA intend to provide room for government-owned companies as employers’ representatives and attempt to marginalize existing employer representative groups; and (v) the ECSM has filed an appeal against the appointments to the SER made by the SEA.

In light of these observations denouncing that the SEA was created through government action with the aim of marginalizing the hitherto most representative employers’ organizations in the country, the Committee must emphasize that, under the Convention, it is the prerogative of employers and their organizations to determine the conditions for electing their representatives and to establish higher level organizations, and the authorities should refrain from any undue interference in the exercise of these rights, including interference through the promotion or favouring of organizations that are not freely established or chosen by employers and their organizations.

The Committee requests the Government to take the necessary measures to review, in consultation with the employers’ organizations concerned, the above-mentioned developments, in particular as to the establishment and operation of the SEA and its participation in the SER, in order to ensure complete respect for the rights of employers and their organizations to establish and join organizations of their own choosing and to elect their representatives in full freedom, and redress any interference from the public authorities in this regard. The Committee further requests the Government to provide information on the result of the appeal challenging the appointments to the SER made by the SEA and recalls that it may avail itself of the technical assistance of the Office.

The Committee also reiterates its request that the Government reply in full to its other pending comments under the Convention, adopted in 2017.

[The Government is asked to send a detailed report in 2022.]

Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

The Committee notes the observations of the Sint Maarten Hospitality and Trade Association (SHTA) received on 30 September 2020, which allege that the Chamber of Commerce and Industry (COCI), a governmental agency, has established the Soualiga Employer Association (SEA), an umbrella organization to represent employers, including at the tripartite Socio Economic Council (SER). The SHTA alleges that through the COCI and the SEA, the Government is attempting to establish an employer representative organization that is more in line with the Government’s position and does not reflect actual diligent representation and that this appears to be an attempt to marginalize the existing employer representative groups. The Committee requests the Government to provide its comments on these serious allegations.

The Committee also requests the Government to reply in full to other pending comments under the Convention adopted in 2017.

Direct Request (CEACR) - adopted 2017, published 107th ILC session (2018)

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. The Committee recalls that, in its previous comments relating to the Netherlands Antilles, it had highlighted the need to amend 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, which prohibited public employees, including teachers, from striking under penalty of imprisonment. The Committee previously noted with interest the Government’s statement that it had decided to withdraw the reservation earlier made for the Netherlands Antilles under Article 6(4) of the European Social Charter, and noted the Government’s indications that the Penal Code, which in the past reflected the restrictions on the civil servants’ right to strike, was being reviewed, and that the amendments would include this right for civil servants and would be proposed by the Ministry of Public Health and Social Development. The Committee observes that, pursuant to the Kingdom Act of 3 December 2014, the reservations formerly made for the then Netherlands Antilles, which rendered Articles 6(4) of the European Social Charter and 8(1)(d) of the International Covenant on Economic, Social and Cultural Rights (right to strike) not applicable to civil servants, have been withdrawn with the accord of the Government at Kingdom level, and that this is also valid for Sint Maarten. The Committee notes that the Government merely reiterates that, consequently, the Ministry of Public Health and Social Development would propose amendments to the Penal Code currently under review so as to allow for the right to strike for civil servants. The Committee observes, however, that a new Penal Code entered into force in Sint Maarten on 1 June 2015, replacing the Penal Code of the Netherlands Antilles. The Committee understands that the Commission in charge of the review of the Penal Code, had recommended that the provisions of section 374 should not be carried over as they were in violation of the Convention. The Committee requests the Government to confirm the Committee’s understanding and provide detailed up-to-date information in this regard, in particular as to whether section 374(a), (b) and (c) of the old Penal Code of the Netherlands Antilles has been carried over into the new Penal Code. Noting the Government’s indication that public sector workers generally have the right to strike but the court may forbid a strike that threatens public welfare or safety, the Committee also requests the Government to specify any other legislative provisions currently governing the right to strike of civil servants.

Direct Request (CEACR) - adopted 2014, published 104th ILC session (2015)

The Committee takes note of the observations provided by the International Organisation of Employers (IOE) in a communication received on 1 September 2014.

Article 3 of the Convention. Right of workers’ organizations to organize their administration and activities. The Committee recalls that, in its previous comments relating to the Netherlands Antilles, it had been commenting for a number of years upon the need to amend 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, which prohibited public employees, including teachers, from striking under penalty of imprisonment. The Committee notes the detailed information provided by the Government of Sint Maarten. In particular, it notes with interest the Government’s statement that it decided to withdraw the reservation formerly made for the then Netherlands Antilles, which rendered Article 6(4) of the European Social Charter (right to strike) not applicable to civil servants. In this regard, the Committee notes that the Government indicates that the Penal Code which in the past reflected the restrictions on the civil servants’ right to strike is presently being reviewed, and that the amendments will include this right for civil servants and will be proposed by the Ministry of Public Health and Social Development. The Committee requests the Government to provide information on any legislative measures taken in the framework of the present review of the Penal Code with a view to giving effect to the decision to withdraw the reservation regarding the right of civil servants to strike, thus bringing the legislation of Sint Maarten into conformity with the Convention.