MPs debate civil code changes on labour issues

December 12, 2017

~ Sarah takes issue with remarks that law was ‘hijacked’ ~

PHILIPSBURG–Members of Parliament (MPs) debated the content of the draft National Ordinance to amend the civil code related to labour reform and some other national regulations on labour during a public plenary session on Monday.
The legislation was initiated by the National Alliance (NA) fraction and then independent MP Frans Richardson and sought to curb the abuse of short-term labour contracts.

A main highlight of the draft presented to Parliament Monday, proposes that workers be granted a maximum of two temporary contracts for 24 months instead of three contracts for 36 months, which is currently the case. The law also addresses the protection of workers during transfer of enterprises, when companies change ownership. This is intended to prevent another “Pelican” debacle of 2010 from occurring again.
It addressed equal treatment to foster gender equality in labour agreements. Also addressed is pregnancy and maternity leave. The proposal is for the current 12 weeks to be increased to 14 weeks in line with International Labour Organisation (ILO) standards.
Labour Minister Emil Lee told MPs during a PowerPoint presentation on the draft, that the proposal submitted by the NA fraction indicated that businesses that wished to hire someone on a short-term basis (fixed term) would have required a permit from Government. He said this would have added a level of bureaucracy and the Social Economic Council SER advised that the proposal not be submitted in the format it was in, as this would have been bureaucratic and ineffective in solving the problem of abuse.
Additionally, Article 614a in the draft, which was intended to stem the abuse of short-term labour contracts, contained shortcomings. These included that multiple fixed term contracts were still possible and it was still difficult to ensure that persons do not get numerous consecutive contracts.
The conditions in the proposal were also hard to interpret and enforce and certain useful fixed term contracts were ruled out such as granting three year contracts for lawyers, for example. The SER and the Council of Advice recommended that this article be omitted. And as a result Article 614a was removed from the draft and the abuse of short term labour contracts is now addressed in article 668a, which Lee says seeks to regulate the “revolving door” problem where workers are sent home for three months and then rehired on a new temporary contract.
Article 668a recommends a shorter time span before someone can become permanently employed: instead of 36 months, it is now proposed to be 24 months. Fewer consecutive contracts are also now possible as this has been reduced from three to two. “Any attempt to circumvent this article is considered abuse and illegal,” Lee noted.
He stressed, however, that legislation alone cannot address the abuse of short-term labour agreements without increasing enforcement and compliance.
He highlighted other major aspects of the draft. Article 626 seeks to regulate payslips. Currently, payslips are to be provided to all employees in hard copy. It is proposed that electronic payslips can also be issued.
Article 629 seeks to regulate paid leave. Paid leave is currently granted for certain extraordinary situations such as childbirth, death of a family member, funeral of a family member of the household or relative and for other days mentioned in the labour regulation. The draft proposes that changes be made to expand the options to allow other extraordinary situations agreed to via labour agreements.
Article 658a seeks to regulate reintegration of disabled workers into the job market.
Currently the law states that an employer is obligated to find suitable work for the disabled worker, but Lee says there are no limitations on this mandate. It is proposed that the words “must do everything in your power in as far as this is available” to find suitable work for a disabled worker, be added to the article.
Article 665 is aimed at regulating the termination of workers during transfer of enterprises. Lee says the current regulation does not address severance pay if employee decides to terminate agreement during transfer of enterprises.
Other aspects of transfer of enterprises mentioned in the previous proposal remain as is. The draft proposes that if an enterprise is transferred and an employee decides to resign because of substantial changes in an organisation, the employer still has to pay severance pay, even though the employee leaves upon his/her own request. If, however, there are no substantial changes in the employment conditions (such as only a change in uniform) no severance pay will be due.
Lee also spoke about the consensus proposal reached with the tripartite partners on labour reform. He said there were several reasons why labour reform is necessary. First, the International Monetary Fund (IMF), Social Economic Council SER, the World Bank and the Central Bank of Curaçao and St. Maarten all believe that the country’s labour market is too rigid. The objectives of labour reform will be to strengthen the middle class by putting upward pressure on productivity and wages.
Reforming the labour market could include General Old-Age insurance AOV reform by increasing the pensionable age to 65 and giving workers the possibility of purchasing missing years to receive their full benefits.
Reform can also include a general mandatory pension scheme whereby a portable pension follows employees when they change jobs. More flexibility and security is also needed in the labour market whereby cessantia is replaced with a true unemployment benefit system; where there is a more straightforward dismissal procedure; less temporary contracts; and more permanent employment. Additionally, there is need for an integrated framework for youth empowerment and employment with training opportunities and apprentice programmes.
The Minister stressed that compliance and enforcement will be needed. He said legislation in the field of enforcement is near completion with the National Ordinance on Administrative Enforcement. This law will provide the Inspectorate with increased and more stringent enforcement abilities, such as the authority to impose administrative fines. The introduction of a universal personal identification number such as the Social Security Number as is used in the United States, to improve data management and reduce the informal economy, is also recommended.
In elaborating on post Hurricane Irma, the Minister said Tripartite Committee consensus document of August 30, 2016 has a much broader scope than the civil code only. “Many points from this document will make an important contribution to our disaster resilience,” he said. He would like to see a real unemployment benefit system in place instead of cessantia. He said also that in case of sudden economic shock, this would absorb short-term unemployment without having to resort to onderstand only. Persons receiving the benefit should be re-schooled or perform community service.
Several MPs weighed in on the draft presented by the Minister.
NA MP Rodolphe Samuel, for example, took issue with the fact that answers posed during the Central Committee meeting on the draft were not yet answered. He said this placed parties in a “tight spot” and said one of the options can be to send the matter back to the Central Committee.
Samuel said during the Central Committee meeting the Minister was asked to provide a list of definitions so that certain terms can be clear to employers and employees and reduce the need for different interpretations later on. This list was not provided for in the draft presented by the Minister. He said also that the draft presented by the Minister is not clear on the prevention of another Pelican saga. He said while it is understood that the employer will take along the employees, it is not sufficiently grounded in the legislation.
United People’s (UP) party MP Claret Connor said he agreed with Samuel that the discussions from the Central Committee meeting were still pending, but said sending the matter back to the Central Committee is a matter to be decided on by the House.
UP MP Tamara Leonard said while at first impression the proposed change from three to two years in the maximum number of contracts an employee can receive seems to not solve the problem, for employers who perform fairly, this would mean placing an employee in a permanent position faster.
Comments by United St. Maarten (US) Party MP Frans Richardson that the original draft initiative law that was presented by himself and NA several years ago had been “hijacked” caught the ire of Democratic Party (DP) MP Sarah Wescot-Williams. Richardson said the version presented by him and NA was intended to curb the significant abuse of short-term labour contracts in business, particularly casinos. He said while contracts were not needed for positions of a permanent nature, everyone ended up on contract.
Richardson said the entire legislation had been changed to benefit employers and not so much employees and referred to this process as hijacking of the legislation. He said, however, that while he was hurt by initiators of the law being “thrown aside” and by others wanting to take credit for it, he will still support the law.
In response to the use of the term hijacking, Wescot-Williams told Lee that if he is not “very, very clear” on the law in the next meeting and unless he rewinds the clock in history and explains “every step” that the law has gone through, she will demand that the law will be sent back to the Central Committee. She said while the DP was singled out in an onslaught of hijacking of the law, the draft law is not from any political party, but is a draft law from Government to change the civil code on labour.
She told Lee that he will have to respond to the accusations that the law had been hijacked. She also called for all documentation related to the law dating back over the years to be place on Parliament’s website for all to see.
At the end of the Minister’s presentation and MPs comments and questions, the meeting was adjourned.