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

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

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.]