Lee estimates Civil Code changes will take effect by January 2018

PHILIPSBURG–The National Ordinance to amend the Civil Code related to labour reform and some other national regulations on labour are estimated to go into effect by January 2018.

Labour Minister Emil Lee told Members of Parliament (MPs) during the continuation of a meeting of the Central Committee of Parliament on the subject on Wednesday, that implementation of the legislation will start upon completion of legislative trajectory. This trajectory includes approval of the legislation by Parliament, signing by Governor Eugene Holiday and the publishing of the legislation in the National Gazette. The Ombudsman will also have six weeks to comment on the legislation. He, therefore, anticipates the implementation to start sometime in January 2018.

During Wednesday’s meeting Lee responded to questions posed during the last meeting.

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In explaining the clause on maternity leave and the absence of paternity leave in the draft legislation, Lee said the proposed extension of maternity leave was done in accordance with International Labour Organisation (ILO) standards, under the maternity protection convention 183, which stipulates a minimum of 14 weeks. Democratic Party (DP) MP and Chairperson of Parliament Sarah Wescot-Williams pointed out that the ILO actually recommends 18 weeks for maternity leave and queried the disparity.

With regard to paternity leave, Lee said authorities are following ILO as a guideline and currently there are no provisions for paternity leave. He said, however, that under article 629 of the Civil Code there is a provision for workers to get special paid leave for short periods of time and time off for delivery of a child is considered for such an occasion. Collective Labour Agreements (CLAs) can also be used to regulate paid time-off for paternity leave. Also, in rare cases of death or hospitalisation of mothers, the maternity leave can be transferred to the father.

The solution to reducing abuse of short term labour contracts starts with increased dissemination of information to workers and employers combined with heightened control to ensure compliance. This, Lee said, will be done in combination with controls that aim to limit the possibility for abuse while trying to be balanced for all parties involved. However, he believes that the best solution is a comprehensive labour reform as outlined in the consensus document approved by the labour tripartite. This, in conjunction with increased compliance checks, will ensure proper functioning of the labour market. The minister said almost all MPs brought up the issue of compliance and enforcement. “This is one of the points that need additional efforts. It is something that we take seriously and are working on currently.”

Several MPs commented on the draft legislation and asked additional questions after the minister delivered his answers.

Noteworthy was National Alliance (NA) MP George Pantophlet, who said he will be coming with proposals for amendments to the draft. Pantophlet said information received from Aruba indicates that this island does not use short term contracts. Workers are simply given a trial period of two months after which the employer either keeps the worker or lets them go.

The draft national ordinance addresses several things including short term or temporary labour contracts; the transfer of enterprises; pregnancy and maternity leave and gender equality in contracts amongst other things. The draft also addresses the possibility of employees receiving pay for deaths in the family and for childbirth and other such cases. Additionally, it “safeguards” the reintegration of disabled employees into the workforce.

As it relates to the termination of workers during transfer of enterprises, the proposed change states that if an employee decides to dissolve his/her labour agreement due to substantial changes in an organisation during the transfer of enterprise, the employer will still have to pay severance even if the employee decides to leave on his/her own accord. If employees decide to leave and there are no substantial changes, then no payment will have to be made. Other aspects of transfer of enterprise remain as is. The goal of the transfer of enterprise is to prevent “the Pelican debacle of 2010,” by ensuring that employees retain their rights and benefits that have accumulated or built up leading up to the sale of the business.

Another highlight of the draft is the regulation of payslips enabling employers to issue payslips electronically. The current provision is for payslips to be issued in hard copy.

The draft also proposes to grant paid leave for extraordinary circumstances such as childbirth, death, funeral of a member of the household or a relative and other areas as well as for other extraordinary situations as agreed in labour agreements.

The draft also regulates the reintegration of disabled workers. Reintegrating disabled workers into a small organisation may provide harsh financial consequences for an organisation and the idea is to make sure that it was reasonable and possible to be executed rather than obligatory.

Omitted from the draft ordinance was an article (614A) which specifically regulates when a fixed term or regular contract can be used. The article was seen as essential in curtailing the abuse of short term contracts. There had been a lot of discussion in the Tripartite (business, government and labour) on this particular issue, in attempting to further define the article, but in the end, it was concluded that there were still too many loopholes and it left several unanswered questions related to the various types of seasonal work and jobs that can fall under projects.

Taking the negative advices of the Social Economic Council SER and the Council of Advice regarding this article into consideration, a decision was made to delete the article in question and put more focus on another article (668a), which seeks to regulate the “revolving door” issue. The revolving door occurs when persons are given a series of fixed term contracts back-to-back and never become permanent. As St. Maarten requires seasonal workers, the option needs to remain that persons can be hired for parts of the year.

To prevent abuse, the article regulates the maximum number of contracts for workers and the duration to which an employee can remain on a temporary contract. It was agreed in the tripartite to reduce the maximum period of a contract from 36 to 24 months, while working towards full labour reform. Additionally, efforts would be made to increase compliance by distribution of booklets targeting employers and employees as well as elevated inspection activities.

Source: The Daily Herald https://www.thedailyherald.sx/islands/68187-lee-estimates-civil-code-changes-will-take-effect-by-january-2018

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