In the past year there have been no (major) changes in the employment laws in the Dutch Caribbean. The Court of First Instance in Curaçao made an interesting decision on the issue of whether an employer can (in)directly require an employee to be vaccinated against COVID-19.
The relevant facts of the matter are as follows.
The judge ruled that there is no general vaccination obligation and that such obligation does not fit within the employment relationship. After all, vaccination affects the fundamental rights of citizens to the inviolability of the human body and the right of respect for privacy. Employers must respect these fundamental rights of their employees. An infringement of a fundamental right by the employer, however, can be justified under certain circumstances provided there is:
The judge concluded that by linking the negative consequence of immediate dismissal to the employee’s refusal to vaccinate, the freedom of choice of the employee is considerably restricted. This restriction constitutes an infringement of the fundamental rights of the employee. The immediate dismissal therefore was not upheld.
The employer had requested the dissolvement of the employment agreement in the event that the immediate dismissal would not be upheld. This request was awarded based on changes in the employment relationship as the employee had acknowledged that the working relationship had been disturbed due to the vaccination discussion.
Please note that per 1 September 2021, Aruba introduced several major changes in its employment and labour laws. Some of the most important changes are listed below.
The most important legislative actions and initiatives taken to address the COVID-19 crisis from an employment perspective were temporary measures, the main purpose of which was to guarantee the continuation of employment within organisations and to avoid mass dismissals due to the financial situation of employers, caused by the loss of revenue due to a substantial decrease in their sales market.
These government measures were as follows:
In the Dutch Caribbean, no distinction is made between blue-collar and white-collar workers. However, there is a distinction between workers who fall under the scope of the relevant National Labour Ordinance 2000 and those who do not. The distinction is based on the income of the employee, as this ordinance has a threshold income that is related to the day wages as defined in the National Ordinance on Sickness Insurance.
The National Labour Ordinance 2000 makes a distinction between schedule workers and non-schedule workers. This distinction is important as different rules apply in respect of working hours, rest time and overtime, for example.
Schedule workers are workers whose work is performed according to a periodic work schedule at various times, which are necessary in view of the nature of the business. As a result thereof, the working hours fall in part or in whole prior to 7am and after 8pm, thereby outside normal business hours. Non-schedule workers perform their work within the normal business hours of between 7am and 8pm.
If an employee (schedule worker or non-schedule worker) performs work outside of the aforementioned hours, these hours are considered overtime and the employee will consequently be entitled to an overtime allowance, as stipulated by law.
In principle, the terms on which employment contracts are entered into are based on the contractual freedom between parties, although in general the type of contract is determined by the employer’s business needs. The contractual freedom is limited by the rules of public order and the mandatory stipulations in the employment laws and regulations.
Under the labour and employment laws, an employment contract is not required to be in written form. However, the written form is mandatory for some provisions in the employment contract, such as a trial period or a non-competition clause.
In the event of verbal agreements where work is performed by a person for payment, the law assumes the presumption of the existence of an employment agreement if the one of the following criteria is met:
In the Dutch Caribbean, there are different types of employment contracts, with the main ones being the employment contract for a definite period of time (fixed period) or the employment contract for an indefinite period of time. Further distinctions can be made within this main category, such as part-time or full-time employment contracts, or on call contracts. The importance of this distinction is the degree of protection for the employee in case of the termination of the employment contract.
Employment contracts entered into for a fixed period of time terminate by operation of law; however, the law places restrictions on the use of this type of employment contract, in order to protect the interests of the employees. These contracts are converted into contracts for an indefinite period of time in the following cases:
The relationship between a temporary worker and the employment agency is also considered an employment agreement with its specific rules.
If the employee falls under the stipulations of the National Labour Ordinance 2000, then the following maximum working hours apply:
If the National Labour Ordinance does not apply, then the employer and the employee can contract the amount of working hours freely, provided the working hours agreed upon are reasonable in the specific circumstances.
Minimum wages differ for each island of the former Netherlands Antilles and for each type of salary agreed upon – eg, hourly, weekly, bi-weekly or monthly wages. The minimum wages are also distinguished per age group. Furthermore, these minimum wages are usually established anew on January 1st of each year.
In the Dutch Caribbean, there are no specific laws or regulations concerning a 13th month, bonuses or holiday allowances. These wage components are freely negotiable between the employer and the employee.
When an employee works overtime and their employment contract falls under the scope of the National Labour Ordinance 2000, then the following compensation rules will apply:
These compensations can be deviated from to lower percentages but only through a collective labour agreement.
Employer and employee can agree in writing that overtime will be partly or wholly compensated in time back instead of being compensated in money, in proportion to the above-mentioned compensation percentages.
Different rules apply for hotels, restaurants and casinos.
Pursuant to the Vacation Regulation, an employee is entitled to a minimum number of days of vacation per year, equal to three times the number of agreed upon workdays per week.
Therefore, if an employee works four days a week, they are entitled to a minimum of 12 paid days of vacation. However, if an employee works six days per week, they are entitled to a minimum of 15 days of vacation, according to the minimum rule contained in the Vacation Regulation.
During the vacation, the employer has to continue paying the employee’s wages.
Female employees are entitled to fully paid maternity leave, which differs for each island, as follows:
The stipulations concerning maternity leave are mandatory.
In the Dutch Caribbean (except for Aruba), non-competition clauses are void by law. This only concerns non-competition clauses that apply after the termination of the employment relationship.
During the employment relationship, it can be agreed that the employee shall not perform any (additional) activities for third parties during their employment.
A non-solicitation clause that applies after the employment relationship has been terminated shall generally be considered equal to a non-competition clause in the Dutch Caribbean (except for Aruba).
This will be the case if such clause limits the employee's endeavours to pursue another employment.
Data Privacy Law
An employer has the right to monitor an employee's work performance and to use the employee’s data for that purpose because there is a relationship of authority between them.
However, the employer is bound by the following conditions to protect the employee's right to privacy:
In short, the collection and use of the employee’s personal data should not be at the expense of the privacy of the employee.
A foreign employee is not allowed to perform work without a work permit. An employer is prohibited by law from allowing a foreign employee to perform work if the employee does not have a valid work permit.
A foreign employee is also required to obtain a residence permit.
Once a residence permit and a work permit are obtained, no further specific registration requirements are necessary other than the registration with the tax inspector for wage tax purposes and for the payment of applicable social premiums.
Additional permits are required for specific professions, such as medical doctors and their assistants, and pharmacists and their assistants.
A union can represent the interests of individual employees or of a group of employees within a community or within a business sector. A union can also negotiate on behalf of the employees of a company with respect to a collective labour agreement, but has to be considered a representative for the majority of employees in order to do so.
If it has been established, on the basis of a referendum, that the union in question is representing the majority of the employees, the employer is obliged to enter into negotiations with this union with respect to the collective labour agreement.
In the Dutch Caribbean, the only employee representative body is a union.
The legal entity of such an employee association must have full legal capacity, and its by-laws have to explicitly stipulate that the association has the authority to enter into a collective labour agreement/collective bargaining agreement.
The law describes a collective bargaining agreement as the contract entered into by one or more employers, or one or more employers' associations with full legal capacity, which mainly or exclusively regulates employment conditions in employment contracts.
A collective bargaining agreement cannot be entered into for a period longer than five years, although it can be extended. Any such extension should be in such manner that the parties are never bound to each other for longer than five consecutive years, commencing from the time the extension is agreed upon.
Unless otherwise stipulated in the collective bargaining agreement, the employer – who is bound by that collective bargaining agreement – is obliged during the term of that collective bargaining agreement to comply with its provisions regarding employment conditions, and also with those employment contracts as referred to in the collective labour agreement, entered into with employees who are not bound by that collective labour agreement.
To terminate an employment agreement, the employer must a priori have justifiable grounds. An employment agreement can be terminated in one of the following ways.
Urgent reasons for the employee include the following:
An employer who intends to dismiss 25 employees, or more than 25% of the total number of employees in a company, provided this does not result in five or fewer employees, has to notify the Department of Labour at least two months prior to the termination of the employment agreements.
Within eight days of notifying the Department of Labour, the employer has to send the Department of Labour a redundancy plan for assessment.
If the employment agreement is being terminated by giving notice, the following notice periods have to be taken into account by the employer, depending on the years of service:
The notice periods that the employer has to take into account can only be shortened by way of a collective bargaining agreement. Extension of the notice period for the employer, however, can be done through a written agreement.
The employee has a notice period of one month regardless of the duration of the employment relationship.
Deviation of the notice period that the employee has to take into account is allowed through a written agreement; if the deviation consists of a prolongation of the notice period that the employee has to take into account then the notice period of the employer should at least be twice that of the employee.
If the notice period for the employee is extended, such extended notice period may not exceed six months.
The only severance payment the law provides for is the so-called cessantia payment, which an employee is only entitled to if the reason for the termination of the employment agreement cannot be attributed to the employee. The cessantia payment is a minimum severance payment based on the years of service, and is calculated as follows:
If the employer or the employee requests the Court to dissolve the employment agreement, the Court can award the employee a severance compensation based on fairness, taking all circumstances into account.
A summary dismissal can only take place for urgent reasons. The urgent reason has to constitute an urgent reason objectively (thus for any other reasonable employer) as well as subjectively (thus for this specific employer).
Furthermore, the urgent reason and the immediate termination of the relationship in connection therewith must be notified to the employee forthwith.
If all formal and material criteria are met, this will lead to a legal dismissal.
Termination agreements are permissible.
An employer and an employee can always terminate an employment relationship by mutual consent. There are no legal requirements for such termination, other than that the employer must make sure that the employee actually agrees to terminate the employment relationship and understands the consequences of such termination.
The employer may not assume too quickly that the employee wishes to terminate their employment. In that respect, the employer should require an unambiguous statement from the employee concerning their consent to the termination of their employment contract.
Although no specific form is required for such termination agreement, the agreement is usually drawn up in writing in order to avoid any ambiguity in respect to the conditions of the termination. The written form is mandatory if the termination agreement is meant to be considered as a settlement agreement in which parties also release each other from any obligations arising from the employment relationship and grant each other discharge.
There are certain categories of employees where the protection against dismissal by giving notice is granted based on the employee belonging to such category, as follows:
These categories of employees are only protected insofar as the reason for dismissal is connected to the specific category. In all other cases, the normal rules and procedures for the termination of an employment agreement remain applicable.
Depending on the reason given for the dismissal and the manner in which the employment agreement was terminated, an employee has the following options.
Based on the Curaçao Civil Code, an employer is not permitted to make a distinction between men and women in the following scenarios, under penalty of nullity:
On the other islands of the Dutch Caribbean, based on the principle of a good employer, an employer in the same circumstances is obliged to treat their employees equally. Furthermore, the non-discrimination provisions pursuant to the European Convention on Human Rights are applicable in the Dutch Caribbean.
If an employee believes they have been discriminated against, the burden of proof of such discrimination lies with the employee.
Disputes between an employer and an employee are brought before the competent Court of First Instance of the relevant jurisdiction. The procedure may be initiated by either the employer or the employee.
With the exception of the procedure in which the dissolution of the employment agreement is requested, the decision of the Court of First Instance can be appealed, to the joint Court of Justice of Aruba, Curaçao, Saint Maarten and of Bonaire, Saint Eustatius and Saba. Ultimately, this decision can also be appealed to the highest instance, which is the Supreme Court in The Hague in the Netherlands.
No professional legal representation is required in proceedings in front of the Court of First Instance; the parties can argue their case in person. In appellate proceedings before the joint Court, legal representation from an attorney in law is required. In the event of appeal proceedings before the Supreme Court, representation by lawyers specially trained for these proceedings is required.
In employment disputes and disputes concerning a collective bargaining agreement, arbitration may be used as an alternative procedure.
However, arbitration is not a common procedure in connection with such disputes. To initiate an arbitrational procedure, the parties have to agree on that prior to initiating the arbitration. The procedure to reach an agreement is likely to take time and is also very costly.
Attorney’s fees are, in general, not part of the fees that are awarded in legal proceedings on employment matters. In general, each party has to pay its own attorney’s fees, irrespective of the outcome of the Court proceedings.
The Court can award certain procedural costs to the party that has successfully argued its standpoint but those costs are based on a fixed rate related to the monetary interest of the case and the procedural actions taken.
In exceptional cases, the Court may award the full attorney’s fees.