~ 'Strongly' advocates revision of counterpart policy ~
PHILIPSBURG--The Social Economic Council SER "strongly advocates" the revision of the much touted counterpart policy government plans to implement later this year as a means of lowering the unemployment rate in the country. The council called on government to instead better apply the existing Labour Regulations.
The SER advice was sent to government in October 2014, after receiving the advice request in July and studying the ordinance and other factors. The advice was duly published at the end of January this year in the National Gazette (Landscourant).
"Surely, compliance with current law is the very first fundamental right that can be demanded of every country and while the SER is well aware that the Executive Order on Foreign Labour is already applicable law, the SER strongly advocates revising this Article 10," SER stated in its advice.
Pointing to non-nationals holding positions within top organisations, businesses, yet having a minimum of secondary academic education, as the reason to affect the counterpart article "appears to be the wrong policy to solve this problem."
In view of short-term solutions, SER proposes to create a tax-break for employers who take on unskilled local youngsters who are not adequately prepared to enter the job market and provide them with on-the-job training.
The execution of Article 10 will "drastically harm especially small businesses" through double labour expenses: having to pay two people (the foreign employee and the counterpart) two salaries for doing the same job.
Also, execution of this policy by the Labour Department will have "a random effect" on businesses. For some positions held by foreigners, counterparts will be available, but in many cases, there will be no counterpart, as the (unemployed) local candidates are simply too small in number compared to the number of foreigners employed.
"This will cause the counterpart policy to have an unpredictable effect on the cost of doing business, while it will most certainly lead to unfair competition between businesses. Consequently, this will negatively and unpredictably affect a business' profit margin and could easily cause companies in St. Maarten to go out of business, thus damaging our economy," said SER.
SER said, "If there is no qualified, local, Dutch national to fulfil a certain vacancy, this confirms that St. Maarten is facing challenges in educating its nationals to fulfil certain positions or St. Maarten suffers from a brain drain. In both cases, one cannot expect employers to bear the additional costs, especially not when this is a consequence of an omission on the part of the Government of St. Maarten."
If it appears that the supply on the local labour market does not meet the demand, "positive measures (education, training) should be taken to fill in the gap between insufficiently skilled, local employees and the positions offered."
A work permit is only given after it has been established that no suitable local candidate is available. "In other words, managing the influx of foreign labour can be done prior to issuing a work permit," said SER.
After examining the ordinance, SER concluded that proper implementation and enforcement of this law, without the counterpart Article 10, "provides adequate safeguards to achieve its intended purpose."
If, in reality, locals do not get a fair chance for job opportunities, as it is stated in the advice request, SER suggested increased enforcement of the already existing regulations, since the success of any legal framework depends on the effectiveness of controls on compliance with the rules it lays down.
A "thorough investigation" is necessary to solve the employment problem.
To start, all surveys ever done on unemployment were executed based on gender, age and place of birth. So, it has never been clear what percentage of (youth) unemployment concerns Dutch nationals, or what the demand is for employees in terms of type of profession, required education and skills, and the extent to which local employees can fulfil the demand.
SER's opinion is that as long as a thorough research has not been executed, it is "unwise to implement additional legislation."
SER "unanimously advises" government "to revise Article 10 of the Executive Order on Foreign Labour and not execute this Article 10." That article, as it is currently formulated, is "detrimental for an economy like St. Maarten's, where the labour supply is strongly dependent on immigration."
Statistical information from the Department of Statistics in 2014 indicated an unemployment rate of 11.5 per cent with youth unemployment (ages 15-24) at 27.7 per cent. The Ministry of Public Health, Social Development and Labour has made different strategic changes to address the unemployment figure, many of which were initiatives originated from the "SEI Employability Thru Training" project and various new processes within the Labour Department. Ongoing efforts also include an adult training programme where unemployed Dutch citizens residing in St. Maarten are being educated through direct job skills training.
The Labour Department also recognises the dynamic mechanisms within the work permit section, where strong statistical data points to a labour market force consisting of non-nationals holding positions within top organisations, businesses, yet having a minimal of secondary academic education.
Placement of Dutch nationals has been improving, according to the Labour Department, yet further partnership with businesses is required. As such, the Labour Department requested the immediate implementation of Article 10 of the Executive Order on Foreign Labour and this led to the SER advice.
Criteria for permit
An employment permit for a foreigner will only be granted if a Dutch national residing in St. Maarten will be made available by the Labour Department as a counterpart to the position for which the work permit has been granted. A training plan must be presented and may not exceed a maximum of three years (training cost to be borne by the employer), and the counterpart must be compensated according to acceptable standards.
Further, a request for renewal will be denied if the employer dismisses the counterpart without the prior approval of the Labour Department or to the discretion of the Labour Department the employer fails to sufficiently train the counterpart.
The department will provide a thorough assessment of the suitable candidate, a job coach and job placement officer to ensure suitability and matching of the counterpart with the desired career path, and will monitor training monthly.
The National Ordinance on Foreign Labour went into effect in 2002. The ordinance lays down rules relating to employment by foreigners and formulates a restrictive admissions policy for migrant workers by determining that a foreigner is only eligible for a job in St. Maarten when there is no skilled local candidate available.
To ensure proper enforcement of the ordinance, specific policy measures are needed to counter the negative effects of the migrant workers compared to Dutch nationals residing in St. Maarten.
In 2003, these policy measures were drafted and laid down in the Executive Order on Foreign Labour.
In 2009, a new article, the so-called "counterpart article," was added to this Executive Order on Foreign Labour.
A counterpart is a local employee who will be placed next to the foreign employee and who has the potential to be trained in a certain job in order to replace the foreigner within three years.