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PHILIPSBURG--Employment permit requests will be denied from employers who refuse to hire "suitable counterparts" recommended by the Labour Department.

This is one of the stipulations in the controversial counterpart policy, which was discussed in a meeting of Parliament's Permanent Committee of Health Care, Social Development and Labour on Friday.

Some Members of Parliament (MPs) echoed sentiments expressed by some sections of the community noting that they had serious concerns about the policy and its potential effects on the economy. National Alliance (NA) MP Christophe Emmanuel said while he wants to believe that the policy can work, he believes it will encounter "some serious problems," while Democratic Party ((DP)) MP Sarah Wescott-Williams believes that the proposal will be "detrimental to the economy."

In giving the details of the policy Labour Department Head Rafael Boasman said the idea is that a suitable counterpart will be suggested when issuing certain employment permits. Permits will, however, be denied if the employer refuses to accept the suggested counterpart. Permits will also be denied if "it appears" that the employer, without permission, terminates the counterpart or if the Labour Department believes that the employer did not sufficiently pursue the training of the counterpart.

The policy states that the counterpart should be trained for up to three years at the cost of the employer. Employers will be required to give counterparts employment agreements with stipulations such as their remuneration, which should be commensurate with the position and experience.

The policy is expected to go into effect in a pilot phase this year. According to the Labour Department Head the counterpart will shadow an immigrant labourer to acquire the relevant knowledge of skills. Boasman called it "a perfect solution to the problem of returning students."

He said the policy is an important instrument to ensure the placement of local labour when providing employment permits for foreign nationals. "The foreign national must transfer his or her knowledge or experience to the counterpart," he said.

He said employment permits are primarily issued because local labour is not readily available for a position and as such someone with the expertise is brought in. By law, employment permits should be issued for a maximum of three years and is not intended to be permanent. The goal is for the counterpart to take over the position held by the immigrant labourer, when the foreigner returns to his or her country. Once the counterpart is trained and their work is satisfactory, employers will have to grant the counterpart permanent employment for an indefinite period with full time working hours. He said there might be cases where the counterpart "just can't cut it," in which case the working relationship can cease.

The counterpart, according to Boasman, must meet a certain minimum criteria of experience and work ability. He said it won't be a case where a carpenter will be trained to become a pilot.

Skilled jobs

The counterpart policy will not be applied to low-skilled jobs and does not cover workers with low educational levels. It will only be applied to positions that require a minimum of an Associate Degree (MBO level) as this is the level where the Department of Labour encounters challenges in placing students who return from studying with little experience.

The policy can also be applied to cases where workers can shadow an immigrant in a company for upward mobility. "In many cases local workers would reach to middle management and not promoted further and requests are constantly submitted for managerial positions and practise and theory have always indicated and shown that productivity of a company benefits when internal mobility is offered.... It doesn't have to be someone unemployed."

The Labour Affairs Labour Market Section would monitor and evaluate the performance of the counterpart in collaboration with the employer. In some cases the Labour Market Section can take "corrective measures" such as job coaching, retraining or additional training for the counterpart.

Boasman said it "seems obvious" that the counterpart would be for "knowledge intensive sectors." Boasman said is expected that the policy would give employers "more incentives to instantly employ local labour or shorten the time to train a counterpart."

Labour Affairs is busy with the implementation framework for the policy, which would need approval of the Labour Minister and the Council of Ministers. This will be followed by information sessions with social partners and other stakeholders. The pilot will be monitored and evaluated and based on this the minister will decide on the general introduction of the policy.

Negative advice

The Social Economic Council SER had issued a negative advice on the counterpart policy in October 2013. SER had called for the revision of article 10 and had instructed government not to execute the counterpart law. Boasman said SER found that the ordinance on foreign labour, if enforced properly, already gives sufficient protection for local labour. Government was advised to conduct in depth research to get a good idea of the situation.

SER also contended that article 10 (counterpart article) as currently formulated was "bad" for the economy as the labour supply was strongly dependent on migrant workers.

The counterpart policy is existing legislation, which has been in place since 2008. In May 2013, the Department of Labour Affairs submitted an advice to the Council of Ministers to start implementing the counterpart article in the law. The request to the Council of Ministers was to implement the counterpart article and to tie it to employment permit requests. It was during this process that the SER advice was sought and a negative advice on implementation was given.

Boasman also spoke about a case in which an employer had taken the then Labour Minister to court because a counterpart was attached to that company's employment permit request for a Food and Beverage Manager. The request was granted, but the company had to hire a counterpart. The business appealed the decision and this was denied. The matter was taken to court and the court ruled in favour of the company. According to Boasman the court indicated that the counterpart conditions should not be applied as there was no policy outlining guidelines to execute the article.

Based on this, the then Minister requested the Labour Policy Department to formulate a counterpart policy taking SER's advice and the court ruling into consideration and in consultation with the Tripartite Committee.

Based on this request, a counterpart policy advice was submitted to the then minister for approval on June 4, 2014. The Council of Ministers approved the policy on August 12, 2014.