International Labour Standards
Department (NORMES)
Ms. Lorraine Talmi,
President
St. Maarten Hospitality and Trade Association (SHTA)
33A WJA Nisbeth Road
P.O. Box 486
Philipsburg, St. Maarten
Geneva, 22 June 2020
Subject: Your request for information
Dear Ms. Talmi,
I acknowledge receipt of your communication of 13 May 2020, in which you express concerns regarding challenges that the St. Maarten Hospitality and Trade Association (SHTA) and other employers’ organizations in St. Maarten are facing related to freedom of association, tripartite consultation and social dialogue.
It is my pleasure to provide the following information based on the observations and decisions that the ILO supervisory bodies have made over the years in relation to the relevant Conventions and principles. These comments are provided on the understanding that they cannot be understood to prejudice in any way any determination that may be made in the future by the ILO supervisory bodies in relation to the specific matters raised.
As regards point A of your communication, the ILO Committee of Experts on the Application of Conventions and Recommendations (CEACR) recalled in its 2018 direct request
to St. Maarten in respect of the application of the Tripartite Consultation (International Labour Standards) Convention No. 144 that “the fundamental obligation under the Convention is to ensure effective tripartite consultations on all of the matters concerning the activities of the ILO related to international labour standards set out in Article 5(1) (see 2000 General Survey on tripartite consultation, paragraph 28).” In this respect, more detail on the matters upon which your organization was not consulted would be of assistance to the ILO supervisory bodies for a determination as to the extent to which they fall within the scope of this provision.
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2.
Under point B, you indicate that “the tripartite committee for labour, established under the ILO Conventions, has been inactive and unappointed since summer 2019”. In this respect, Article 2 of the Convention requires Members to operate procedures that ensure the effective consultations on the matters set out in Article 5 (1). In its 2000 General Survey on Tripartite Consultations, the ILO Committee of Experts observed that “the very flexible wording of the Convention leaves considerable latitude to Members with regard to the choice of consultation procedures” (Paragraph 53). Article 2 (2) provides that the nature and form of the procedures are to be determined according to national practice, after consultation with the social partners. While the required consultations do not necessarily have to take place through meetings, Article 5 (2) of the Convention requires the Government to ensure that consultations (whether through meetings or written consultations in the absence of an agreement for meetings) on the matters set out in Article 5 (1) (a) through (e) are held “at appropriate intervals fixed by agreement, but at least once a year”.
With respect to points C through E, from the elements you have provided in relation to the Chambers of Commerce and Industry, it would seem that the Chambers are an administrative body for company registration (compulsory membership of all companies for registration purposes), rather than an actual voluntary organization of employers, and that its members, when attending the Socio-Economic Councils or Sociaal-Economische Raad (SER), would not be independent from the Government but act as officials of said administrative body, which does not represent the employers.
In this context, the imposition by the authorities of the creation of an umbrella organization of employers by an administrative body that does not represent the free choice of employers would be contrary to the principles of freedom of association recognized in the ILO Constitution, as well as in the Freedom of Association and the Right to Organise Convention, 1948 (No. 87), among other ILO instruments. If the Chamber of Commerce is instituting an umbrella organization for employer representatives whereby it is taking overall responsibility for employer representation on the SER, such action would be contrary to the freedom of association rights of freely-formed employers’ organizations recognized in Convention No. 87. I refer here in particular, to the right of workers and employers to establish organizations “of their own choosing”, enshrined in Article 2 of the aforementioned Convention. The CEACR has thus recalled that the principal objective of Convention No. 87 is to protect the autonomy and independence of workers’ and employers’ organizations in relation to the public authorities, both in their establishment and in their functioning and dissolution; and has noted that the imposition of unity of representation for workers or employers by the authorities is contrary to the guarantees set out in said Convention, (see e.g. General Survey 2012, Giving Globalization a Human Face, paragraphs 55 and 92-94).
3.
To further illustrate the comments made by the supervisory bodies when addressing similar issues, I refer to two cases concerning the relationships between chambers of commerce and employers’ organizations in light of international labour standards: (i) the comments of the CEACR on the application of Convention No. 87 by Kazakhstan, in which the CEACR urged the Government to amend its laws so as to ensure that only freely chosen employers’ organizations may represent employers in social dialogue at national, sectoral and regional levels; and (ii) case No. 2146 concerning Serbia, examined by the Committee on Freedom of Association (CFA), in which the CFA considered that the powers and activities set forth in the Yugoslav Law on the Chamber of Commerce included those within the purview of employer organizations and welcomed the steps taken by the Government in response to its recommendations to ensure the voluntariness and independence of employers’ organizations.
Finally, as regards points F and G that you have raised, it may be useful to refer to the importance which the CFA has placed on promoting dialogue and consultation with employers’ and workers’ organizations on matters affecting their interests and those of their members (see Chapter 16 of the Compilation of decisions of the Committee on Freedom of Association, sixth edition (2018).
Should the SHTA wish to bring concerns relating to the application of any of these provisions to the attention of the ILO Committee of Experts on the Application of Conventions and Recommendations, it may transmit these to the Office in the form of observations made pursuant to Article 23 of the ILO Constitution.
Yours faithfully
For the Director-General:
Corinne Vargha
Director
International Labour Standards Department
