Mixed opinion on legal employer of Coliseum Casino workersPOSTED: 11/5/14 10:22 AM
St. Maarten – The current plight of the former employees of Coliseum is a mess created by Parliament, according to union head Theophilus Thompson, and a “tricky” situation according to legal experts consulted by Today yesterday after the former employees showed up at our offices on Monday evening to explain their dilemma.
The employment of the former employees in question—most of which have worked at that same casino for over a decade—were terminated on Monday, “abruptly and without notice” according to them. Management of Coliseum Casino stated in a press release yesterday that the employees in question “were not employed by Coliseum Casino but by the employment agency Olrenho N.V.”
This was also confirmed by the former employees in their statements to Today on Monday evening. They had been employed by the Coliseum Casino on three consecutive one year contracts from 2003 to 2006 after the government made it clear to the Princess group, who bought the Coliseum Casino, that they would only be allowed to open their doors and do business on the condition that they offered employment to the 53 employees of Coliseum who had lost their jobs when the casino closed its doors.
However in 2006 the employees signed a contract with employment agency Olrenho N.V, which was a sole proprietorship. The Princess group contracted Olrenho N.V to provide them with workers and the same workers whose one year contract had not been issued by the casino that year, were granted work at the casino in their same capacity under the employment agency. The contract signed between Olrenho N.V and the employees came to an end in 2010 but they continued working at the casino through the employment agency, and being paid by Olrenho N.V who was being paid by the casino.
This arrangement was interrupted when the owner of the employment agency died earlier this year. The employees continued work un-interrupted though they were now left without their fortnightly salaries usually received from Olrenho N.V. Instead they received a “loan on certain terms and conditions” on a fortnightly basis from Coliseum Casino with a letter attached clearly stating that the monies were a loan and the terms and conditions.
“After the managing director of Olrenho N.V. passed away, Coliseum Casino was no longer able to communicate with Olrenho N.V. and it was discovered that Olrenho N.V. no longer paid its employees that were placed at Coliseum Casino. Coliseum Casino had no other choice but to terminate the contract with Olrenho N.V. with a 2 months’ notice period. The termination became effective per November 3, 2014. The employees of Olrenho N.V. that were placed by Coliseum Casino were notified of the termination of the contract with Olrenho N.V. and advised to report to their employer. They were further advised that they could apply for a job with Coliseum Casino after three months, and they would be considered, or that they could join another employment agency and Coliseum Casino would consider entering into a contract with that employment agency,” a press release from the management states.
Civil law attorney Wim van Sambeek said from the Netherlands yesterday that the action by Coliseum is “a clear example of dodging the labor legislation. These people should go to an attorney, then it is a walk-over,” he said. “They are on the payroll, so they are employed. It does not matter that they received their salaries through a third party.”
However, former mediator at the labor office and current owner of LX employment agency Roberto Hunt told Today, that because of the current labor laws on St. Maarten, Olrenho N.V. would be considered the employer of these workers. He explained that not renewing the contract after it expired in 2010 and continuing work under the same conditions made them permanent employees of the employment agency.
Under the ILO convention employment agencies are not allowed to become permanent employers of workers that are contracted out in this manner on a long term basis since it is viewed as an abuse of power. Under that law the employees would automatically be considered employees of the Coliseum and not of Olrenho N.V. Interestingly this law was adopted by the Netherlands and is also the case in Curacao but was never ratified on St. Maarten, which means the employees did not automatically become the employees of the casino but instead employees of the employment agency.
Head of the Wifol Theophilus Thompson told Today that he is of a different view and believes that the employees will be proved to be employees of the Coliseum in a court of law under the act of the ILO. He stressed that the ILO clearly states that employment agencies cannot become the permanent employers of such workers since this is not in accordance with international law. Thompson reiterated statements made by the union in a previous case that employment agencies on island are operating outside of the ILO regulation. He termed the situation as “slave labor” an insisted that the employees have a strong case to legally challenge Coliseums claim that they are not their employer. According to the union boss what the casino management has done is ethically and morally wrong. “Only our Parliament can fix this exploitation of workers that continues to happen here,” Thompson said.
Meanwhile the management of Coliseum Casino concluded their press statement by stating they are “willing to assist the employees of Olrenho N.V., upon their request, with administrative facility in their search for an employment agency and is also considering extending the loan payment for two (2) more weeks for them to complete their search.”
Wim van Sambeek is the last in the world who should comment on sint maarten labor laws, an area of law he does not understand. Remember this drama?