SER spots loophole in draft ordinance labor contracts

POSTED: 09/23/14 9:58 PM

St. Maarten – The Social Economic Council (SER) has advised Justice Minister Dennis Richardson to remove any mention of a maximum term from the draft national ordinance on labor contracts. The current draft still contains this term and the SER warns that this still offers employers a loophole for abusing short-term contracts.

Removing the maximum term from article 668a of the civil code “would mean that any fourth labor contract between an employer (or his successor) and an employee will automatically be converted into a permanent labor contract, no matter the interval between the contracts,” the SER writes in its advice. “The risk not to remove any mention of a maximum term in article 668a is that employers might start creating intermissions of more than three months between two contracts, which will not solve the core of the abuse problem concerning short-term labor contracts.”

Already in 2012, the SER published an advice about the draft ordinance short-term labor contracts at the request of the Parliament. When the council started a search for hard data about these contracts, it actually found that the percentage of temp workers decreased between 2003 and 2009 from 21.4 to 19.7 percent and that the percentage of employees on permanent contracts remained stable around 64 percent during the same period. There was also a stark increase in the number of self-employed people: from 13.7 to 14.8 percent. In real numbers: from 2,214 to 3,145 self-employed citizens.

Eliminating self-employed workers from the equation, the SER found that the percentage of employees on a permanent contract increased from 74.9 to 76.4 percent. The council labeled this as “a very high percentage by any international standard.” The percentage of temp workers decreased from 25.1 to 23.6 percent.

“We have to observe that none of the indicators show any trend towards more use of temporary contracts, not as a percentage of the total employed population, nor as a fraction of total contracted employees,” the SER noted in its 2012-advice. “The only significant trend is towards more self-employed people.”

The short-term contract abuse that has been a recurring theme among Members of Parliament is, in the vision of the SER, foremost a matter of enforcing existing legislation. “Straightforward breaking of the law” as the council expressed it in its advice, is a significant factor. “This entails hiring the same person multiple times temporarily, with little or no interval, while ignoring the obligation to make the fourth contract permanent. Enforcement of the law seems to be the overriding issue here, not the provisions of the law itself.” This observation seems to suggest that employees who find themselves in abusive contract-situations could have remedied this with a reference to existing labor legislation.
In its advice that was published last Friday in the National Gazette, the SER furthermore criticizes a paragraph in article 629a (about maternity leave). This article states that days on which a pregnant employee is unable to work due to sickness will be counted towards the time the employee is entitled to maternity leave.

The explanatory memorandum with the draft ordinance states that maternity leave will be extended from 12 to 14 weeks. This is based on the Maternity Protection Convention of the International Labor Organization.

The paragraph that is now part of article 629a however, “created the impression that any day during her pregnancy, if a woman is unable to work due to illness, those sick days are deducted from the 14 weeks maternity leave,” the SER notes in its advice. “Thus, if a woman is sick during the first trimester of her pregnancy and she is unable to work, those sick days will be deducted from her 14 weeks maternity leave. This can never be the intention of the lawmakers, as the whole idea behind the ILO Maternity Protection Convention is to expand the scope and entitlements related to maternity protection.”

The SER suggests in its advice to Minister Richardson that the lawmakers had a different scenario in mind. “The lawmakers must have meant that a pregnant woman who is unfit to work during the last seven weeks before her scheduled due date should take her maternity leave seven weeks before the due date instead of calling in sick. If not, for every day the pregnant woman calls in sick, this day will be deducted from her maternity leave.”

The council furthermore points out that being pregnant has nothing to do with being ill. While pregnancy can leave a woman feeling sick, pregnancy is no illness and should not be treated that way by law. “If a woman is ill, she should be treated the same way as her male colleague who is ill. Under no circumstance should sick leave be deducted from the maternity leave,” the council states in its advice.

At the same time, the SER understands the concerns about abuse of sick leave during a pregnancy. “To deal with such situations, the Labor Department ought to introduce the examining physician (controlerend geneesheer), not specifically for pregnant women but in general. They will be in charge of verifying whether someone is sick indeed.”

The SER advises the minister that the 14 weeks maternity leave should be flexible. “A pregnant woman should be able to choose how she wishes to effectuate the maternity leave. Women who are able to work up to the last day before going into labor, should be able to do so.”

The SER refers to a study by the American National Bureau of Economic Research that shows that a short maternity leave has negative health outcomes for mother and child. “Interestingly, the study also found that it is only when the mother has to go back to work too quickly that her health and the health of her child suffers. The key to a healthy mother and child seems to be not necessarily staying out of the workforce entirely, but rather having the time to transition back to full-time work.”

As a last point, the SER emphasizes the importance of increasing awareness among employees about their rights and entitlements. “Especially among temporary employees (recent) immigrants are overrepresented and find themselves by definition in a more vulnerable position. Awareness of one’s rights as a citizen is an essential part of integration in society. Government, the labor unions and other non-governmental organizations have a specific role and responsibility in this field.”


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