Revised Employment Policy

Government tightens labour policy, no permit for more than three years

Government has tightened its existing labour policy to promote the hiring of locals and to stem the influx of immigrant labour.

Among the new measures in the revised policy, which goes into effect January 12, 2009, is a cap on the number of years employment permits will be granted and the setting of a quota system on the number of foreign labourers employers are allowed to hire. All immigrants issued employment permits and renewals will have to take an integration exam within four months of their permits being issued. Failing the exam can result in the permit being annulled.

The revised policy, approved on November 12, is intended to "protect" local labour and better ensure that jobs are available for returning students as well as the hundreds of students who graduate from secondary schools annually and who go straight into the job market, Labour Affairs Commissioner Sarah Wescot-Williams told reporters Wednesday.

She said government had received numerous complaints from locals who could not find jobs. The commissioner said that although a policy was already in place, there was still "too much unskilled foreign labour, in particular, earning minimum wage, infiltrating the marketplace," while unemployment among local labour was not decreasing.  

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New rules

Under the new policy new employment permit and renewal requests submitted from January 12, 2009, will be granted for a maximum of three years, after which the expatriate worker "will have to leave the island." The Executive Council can exempt persons living and working in St. Maarten for more than five years from this clause.

Permits will only be granted for skilled labour and will be granted only if "a substantial degree of added value" to the St. Maarten community "is guaranteed." The existing moratorium on employment for unskilled labour remains in effect.

New employment permits for expatriate labour will not be granted in areas where it has been determined that sufficient labour already exists in St. Maarten for positions such as security officers, hairdressers, barbers, shop clerks, masons, carpenters, casino dealers, administrative workers, accounting assistants, receptionists, telephone operators, off premises consultants, mechanics, maintenance personnel and gardeners.

This list will be reviewed periodically based on changes and demand in the labour market.

In the various sectors, permits will also be tied to a maximum quota of foreign labour and a minimum quota of local labour. The quotas vary per sector and range from five per cent foreign labour in the public service, for example, to 60 per cent foreign labour in the construction sector, for example.

In the wholesale/retail sector the quota is 25 per cent immigrant labour/75 per cent local labour. Businesses have up to three years to make the necessary changes within their workforce to meet the quotas set for their labour.

Where possible and applicable, the issuance of an employment permit will be conditional on the employer hiring a local counterpart who can be trained to take over the function within three years. This condition, the media was told, is to promote the hiring of locals once the expatriate labour leaves and not have a system where another immigrant is brought in after the three year employment permit max.

Under the revised policy, foreign employees will not be allowed to change employers.

Regarding the integration exam, authorities said the details of the exam were being worked out with University of St. Martin (USM) and would also go into effect on January 12. The exam will test expatriates’ knowledge of St. Maarten.

Under the new policy, employers will also be required to secure proper housing for their employees. The housing must meet minimum standards of hygiene, amongst other things.

Employment permits currently in the system will only be renewed if employers have complied with their obligations pertaining to payroll tax and medical insurance for their workers, amongst other requirements that are already in place.

Employers will also be required to advertise their vacancies locally in cooperation with the Island Labour Department before requesting employment permits. Immigrants requesting director’s licences will also have to meet the conditions of the revised labour policy and the employers also will have to apply for employment permits for them.

There will also be a minimum and maximum age requirement for the immigrant labour. The details of the age requirements were not provided.

The commissioner said a number of "clauses" are included in the revised decree intended to "combat abuse of the system by employers."

Rafael Boasman, as Head of the Labour Department, has the authority to grant or deny an employment permit request, while an Appeal Committee already in place will make decisions on appeals.

Wescot-Williams said mandating the decision-making to the Labour Department and an Appeals Committee would foster a "swift decision-making process," for which she said businesses had been calling.

New fees

The new processing fees, which will go into effect on March 12, 2009 are intended to cover the additional cost to be incurred for the implementation of the revised policy and to compensate for loss of revenue for government as a result of the implementation.

The new fees are NAf. 3,000 for management personnel and NAf. 800-1,600 for non-managerial positions. The fee will be scaled back "proportionally" if the permit is granted for more than one year in the case of a management position, Boasman said.

This processing fee is for the full account of the employer, not the employee. However, Government consultant Amador Mulder said government had no authority to force employers to pay this fee.

Among the initiatives that will be embarked on in the coming weeks to ensure that the details of the new policy are known to all are a town hall meeting for employers, posting the revised policy on government Websites, issuing of a booklet that "extensively" explains the revised policy.

Full page ads will also be placed in the local newspapers with details of the revised policy.

Wescot-Williams said the need for the revised policy, which had been reached in the tripartite committee consisting representatives of government, businesses and labour, was also based on "unwanted effects" and "abuse" of the previous system. "Most notably the fact that employers found in the existing legislation a means of importing family members and relatives to St. Maarten, which certainly is not the intention of this legislation," she said.

She said too that the influx of immigrant labour to the island over the years had put undue pressure on the island’s social, housing, education and judicial systems, as well as on the island’s infrastructure. The Island Council has already been informed about the details of the revised policy.