Observation (CEACR) - adopted 2024, published 113rd ILC session (2025)

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

The committee takes note of the observations of the International Organisation of Employers (IOE) received on 30 August 2024, reiterating the comments made in the discussion held in the Conference Committee on the Application of Standards (Conference Committee) in June 2024 on the application of the Convention. The Committee further notes the observations of the Employer Council St Maarten (ECSM), received on 30 October 2024, and of the Windward Islands Civil Servants’ Union/Private Sector Union (WICSU/PSU), the Windward Islands Teachers Union (WITU), the Windward Island Health Care Union Association (WIHCUA) and the Algemene Politie Bond (NAPB), received on 2 November 2024, referring to the issues addressed by the Committee below and alleging difficulties with the exercise of freedom of association rights in practice. The Committee requests the Government to provide its comments thereon.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 112th Session, June 2024)

The Committee takes note of the discussion that took place in the Conference Committee in June 2024 concerning the application of the Convention. The Committee observes that the Conference Committee requested the Government to: (i) 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; (ii) engage in meaningful and effective dialogue with workers’ and employers’ organizations on all matters affecting their interests or the interests of their members, in full compliance with the Convention, including on the composition of the socio-economic council (SER); and (iii) 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. Finally, the Conference 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.

The Committee notes the report of the ILO technical assistance mission, carried out on 20–24 October 2024, which consisted of a tripartite workshop on this Convention and on the Tripartite Consultation (International Labour Standards) Convention, 1976 (No. 144), to improve understanding of these instruments by the tripartite constituents. The Committee notes from the mission report that the workshop resulted in an agreement that a series of measures needed to be taken at the national level with a view to: (i) establishing criteria for representativity; (ii) strengthening bipartite social dialogue between workers and employers; (iii) enhancing transparency and the social partners’ inclusion in the decision-making processes; and (iv) expanding opportunities for training and capacity-building for the tripartite constituents. The Committee welcomes this development and requests the Government to provide information on all steps taken to implement the agreed upon measures, which also aim at addressing the Committee’s comments below.

Article 3 of the Convention. Right of organizations to elect their representatives in full freedom. The Committee previously noted the information from the ECSM that the Government has granted the Soualiga Employer Association (SEA), whose establishment had been facilitated by a governmental agency, one seat at the SER, and had strongly urged the Government to ensure that workers’ and employers’ representatives to the SER were only appointed by organizations which were freely established or chosen by workers and employers. The Committee notes the Government’s statement to the Conference Committee that it has re-evaluated its position and decided not to include the SEA in the process of nominating members to the SER. It notes, however, from the discussion that took place at the Conference Committee and the mission report, that the Government has nominated to the SER a third association, the Small Properties Association and that the ECSM was challenging the nomination. The Committee notes that in its report, the Government indicates that the process of appointing members to the SER has been finalized and assures that employers’ and workers’ representatives appointed as members of the SER were nominated by employers’ and workers’ organizations that were freely established or chosen by employers or workers respectively. The Committee notes with deep regret, however, that the Government’s indication appears to contradict the information shared by the social partners during the tripartite workshop in October 2024, who raised concerns about the lack of consultation with social partners in the SER’s formation process. The Committee nonetheless welcomes that, as a result of the October 2024 workshop, the tripartite parties agreed: (i) for the workers and employers to jointly develop criteria for representativity and present it to the Government; (ii) to establish a working group that consists of equal numbers of representatives of employers and workers; and (iii) to establish a timeframe for the response of the Government within two weeks of submitting the proposal. The Committee, like the Conference Committee, requests the Government to: (i) define in meaningful and effective consultation with its social partners, criteria of representativeness of employers’ and workers’ organizations that are clear, pre-determined and objective; (ii) engage in meaningful and effective dialogue with workers’ and employers’ organizations on all matters affecting their interests or the interests of their members, in full compliance with the Convention, including on the composition of the SER; and (iii) 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 expects the Government to provide information on all progress made in this regard.

Right of workers’ organizations to organize their administration and activities. In its previous comments, the Committee requested the Government to specify whether public employees, including teachers, who were prevented from striking by virtue of section 374(a), (b) and (c) of the previous Penal Code, were forbidden from striking under the Penal Code of 2015. It also noted that the National Ordinance on Substantive Civil Service Law had been amended to allow the courts to forbid strikes which threatened public welfare or safety and requested the Government to provide detailed information on the circumstances in which strikes may be prohibited based on that Ordinance. The Committee notes the Government’s indication that the new Penal Code, Civil Code and Civil Service Law do not contain provisions that infringe on the right to strike of workers in either the private or public sector and that employees, public servants, including teachers, or their representative workers’ organizations, have the right to collective action, such as strike. According to the Government, this right is derived from the European Social Charter, applicable to Sint Maarten, and case law. The Committee further notes the Government’s indication that restrictions on the right to strike can only be imposed by court if deemed necessary, for example in cases involving emergency services (police, fire brigade or ambulance). The Government further indicates that in making its determination, the court assesses whether the right to strike can be limited on the basis of such circumstances as the nature and duration of the strike; the purpose of the strike; the damage to the interests of the employer or third parties; and compliance with “the so-called ‘strike’ rules”, in particular whether the strike was resorted to too quickly. The Committee observes from the mission report that during the tripartite workshop, workers’ representatives indicated that rules for exercising the right to strike were not clear and that there was a need for further discussion on the exercise of the right to strike in the public sector. The Committee requests the Government to take necessary measures, in consultation with the social partners, to ensure the effective protection, in law and in practice, of the right to strike. The Committee requests the Government to provide information on all steps taken to this end.