SINT MAARTEN (PHILIPSBURG) – The Social Economic Council (SER) is very pleased with the court ruling of last week Wednesday, November 23, 2022, by the Joint Court of Appeals of Aruba, Curacao, and Sint Maarten in the appeal case between the Employers Council Sint Maarten (ECSM) against the judgement of the Court of First Instance of Sint Maarten of January 17, 2022, and the Government of Sint Maarten/Minister of General Affairs regarding the appointment of a member and an acting member to the SER.
The SER has two employers’ representatives namely, the ECSM and the Soualiga Employers Association (SEA). The ECSM is an umbrella organization consisting of The Sint Maarten Marine Trades Association (SMMTA), the Sint Maarten Hospitality & Trade Association (SHTA), the Indian Merchants Association (IMA) and the Sint Maarten Timeshare Association (SMTA). The SEA is an umbrella organization representing, the St. Maarten Insurance Brokers Association, the Taxi Association, as well as small and medium hotel sector representatives among others.
Following media reports that the Minister of General Affairs had mandated the Secretary-general of the SER to convene the advisory body for a first meeting and to hold an election to appoint a chairperson and a vice-chairperson, the ECSM requested the Minister of General Affairs in a letter dated 25 August 2021 to withdraw that mandate and to annul the election because not all members of the SER were yet appointed. In the letter of 31 August 2021, the Minister of General Affairs replied to the ECSM that the Secretary-general of the SER is temporarily mandated to act as a ‘tie-breaker’ in the event that there is no unanimous vote. The Secretary-general of the SER is not mandated to act as a representative of the employers’ circle. The mandate will not be revoked, according to the letter of 31 August 2021. In a letter dated 23 September 2021, the Minister of General Affairs corrected the letter of 31 August 2021 in the sense that the Secretary-general of the SER has no voting rights and was never mandated to act as a ‘tie-breaker’. The mandate was only intended to allow a first meeting of the SER for the period 2020-2023 to take place. That meeting took place on 19 August 2021 and on 23 August 2021 the members of the SER elected a chairperson. The task given to the Secretary-general has thus ended, according to the letter of 23 September 2021.
By judgment of 17 January 2022, the Court of First Instance declined jurisdiction to hear the action brought by the ECSM against the letter of 31 August 2021. The ECSM appealed against that decision. The ECSM argued that the letter of 31 August 2021 is a decision. According to ECSM, the letter has direct legal effect because the SER had to issue an opinion on many policy documents, while the SER has still not been compiled in the manner prescribed in the National Ordinance Social Economic Council SER (hereinafter Lv SER). The seat for the third member of the employers’ representation has not yet been filled (i.e. was then). For that reason, the letter must (also) be regarded as a refusal to appoint that third member. The Court of First Instance considered that the letter of 31 August 2021 is not a decision as referred to in Article 3 of the National Ordinance on Administrative Jurisdiction (hereinafter: the Lar). In view of its wording and content, the letter is not aimed at any legal effect, but contains communications of an informative nature. Pursuant to Article 3, first paragraph of the Lar, a decision is a written decision of an administrative body containing a legal act under public law that is not of general application. For a legal act to be governed by public law, it must have its basis in public law.
On the basis of the documents in the case, the Court of Appeals finds that the Minister of General Affairs requested the Secretary-general of the SER to convene the SER in a letter dated 21 July 2021. However, in view of the Lv SER the Minister of General Affairs does not have the authority to request the Secretary-general to convene the SER. Pursuant to Article 13 of the Lv SER, the power to convene the SER belongs exclusively to the chairman of the SER. For that reason alone, the Minister’s request to the Secretary-general of the SER is not based on a public law basis and therefore does not concern a legal act under public law. This means that the letter of 21 July 2021 is not a decision within the meaning of Article 3, first paragraph of the Lar. The letter of 31 August 2021 is therefore not a decision. Contrary to what the ECSM has argued the letter cannot be considered a refusal by the Minister of General Affairs to appoint the third member of the employers’ representation. That letter therefore does not provide an access to justice for the ECSM to submit to the Court of first instance the legality of the failure to appoint a third member of the employers’ representation. The Court of First instance rightly declined jurisdiction to hear the ECSM’s appeal against the letter of 31 August 2021. The arguments of ECSM did not succeed.
In the meantime, on Tuesday, November 22, 2022, the SER was copied on a letter to the Minister of General Affairs, in which the ECSM once again is claiming all 3 seats of the employer representatives for 2023-2026 term. Despite the ruling of the Joint Court of Appeals of June 29, 2022, in which the Court ruled ‘In view of the foregoing, the Court finds that the government acknowledge that the Soualiga Employers Association and the Employers Council of Sint Maarten both are representative organizations of employers on St. Maarten. They were therefore both allowed to make a nomination for a member and an acting member, and the acting members have also been appointed. That is why the Court cannot follow the ECSM in its argument that it is in Article 12 of the Constitution of St Maarten enshrined fundamental right to freedom of association was violated. After all, the ECSM was not forced to join SEA, but is just independently regarded as SEA, as a representative organization of employers. Article 3 of the Lv SER does not preclude both the ECSM as SEA can be representative because that article, according to the text, assumes more representative organizations of employers and therefore not of only one representative organization of employers. That means also that it may differ per term of office which organizations belong to employers that can be considered representative’. The current term of the Board will end on April 30, 2023.
The ECSM has lost two court cases in appeal. It would behoove ECSM to respect the verdicts of the Joint Court of Appeals and to stop imposing its way on the Government of St. Maarten and by extension the SER. Both verdicts strengthen the fact that Government can appoint more than one employer representatives to the Board of the SER for the term 2023 – 2026.