Recently, the debate about the implementation of the “counterpart policy” has reemerged. Prime Minister Gumbs referred to it in his 2015 New Year’s speech, and MP De Weever focused on this policy in his campaign.
What is the “counterpart policy”?
Employers who wish to hire a foreign employee must obtain a work permit. In granting the work permit, the Minister of Public Health, Social Affairs and Labor may require the employer to also hire a local employee, next to the foreign employee, as a counterpart. The foreign employee has to train the local employee, for a maximum of three years. After three years, the local employee is supposed to be fully trained and able to replace the foreign employee. The costs related to the training, and the salary of the counterpart, have to be borne by the employer.
The case LAR 117/2013
BZSE was hired to contest a case whereby an employer was confronted with this requirement to hire a counterpart. The Court of First Instance of Sint Maarten rendered its judgment on April 7, 2013 (LAR 117/ 2013). The Court ruled in favor of the employer, annulling the counterpart decision and ordered the Minister to issue a new decision. The Minister chose the easy way out and issued a work permit without setting the counterpart condition.
Nevertheless, the judgment is interesting because the Court set parameters for future cases.
First, the Court has doubts whether the counterpart policy (as currently embodied in article 10 Uitvoeringsbesluit Arbeid Vreemdelingen (UAV)) has a legal basis. Therefore, a change of the law, and not just drafting a new policy, seems necessary.
Second, it is unclear whether the employer has to recruit a counterpart (as the Minister argued in this case) or that the Labor Office recruits and appoints the counterpart (as the UAV dictates).
Third, the Minister seems to have been enforcing the counterpart policy randomly without having a written policy in place. The Court therefore hinted that the Minister has to explain how the counterpart policy is not in violation of the Principle of Equality (i.e. same cases should be treated equally).
Next, the employer argued that the counterpart policy is in violation of International Treaties and the Constitution (discrimination) as there are less drastic and already existing measures to achieve the goal of the counterpart policy, which is protection of the local job market. The Court instructed the Minister to explain how the counterpart policy is not in violation with International Treaties.
Lastly, the Court instructed the Minister to explain why imposing the counterpart condition is more important than the interests of the employer, who is confronted with extra costs (double wages) and efforts (education).
In its considerations, the Court explicitly refers to an advice of the Social Economic Council (SEC) (National Gazette of January 24, 2014) in which the SEC, among others, advises Government that the counterpart based on the current law, “is detrimental for an economy like Sint Maarten’s, where the labor supply is strongly dependent on immigration”.
It will be difficult, if not impossible, for the Minister to change the law and draft a counterpart policy that meets all the criteria which the Court set in its judgment of April 7, 2013. Perhaps, the Minister is better off to forget about this incomprehensible counterpart policy and focus on, for instance, alleviating the bureaucratic work permit process. Often, it is not possible to fully train someone on the job in a highly specialized position in a timespan of only a few years. Furthermore, the counterpart policy ignores the right of employers to hire the employee they want. A job is not only about skills or experience; there must also be a match between the new employee, the organization, and his / her colleagues. Last, it is unjust (and in violation of the “Principle of Egalité” (i.e. financial burden of public expenses must be shared by the entire community) to solely burden the employers of Sint Maarten with double wages and the costs of education. Education, after all, is something that should be provided by the Government.
BZSE Attorneys at law Tax Attorneys Mediation