documents. The website is kept up to date continuously while the document version is updated once a year. ...... They do
Employee Handbook
2015
GOVER NMENT OF ST. MA AR TEN
Employee Handbook 2015
Department of Personnel & Organization Backstreet # 56 Phone 542 2036 • Fax 543 2297 http://pnobeleid.sharepoint.com
Note: The original texts of ordinances, decrees and policies are written in the Dutch language. In this handbook they are summarized and translated into English. In cases where there may be disputes arising from the use of fixed terms and other terms, the original Dutch versions will be upheld.
Table of contents A: INTRODUCTION ..............................A-1
E: BENEFITS ......................................... E-1
NEWS........................................................A-2 THE HANDBOOK .......................................A-3 A POLICY OVERVIEW ...............................A-5
REMUNERATION ...................................... E-1 SALARY SCALE ......................................... E-1 PERIODIC INCREMENTS ............................. E-1 ALLOWANCES ........................................... E-1 JUBILEE .................................................... E-2 BUSINESS TRIP EXPENSES .......................... E-2 SALARY ADVANCE ................................... E-3 VACATION AND LEAVE ............................ E-3 VACATION ................................................ E-3 VACATION ALLOWANCE ........................... E-4 PREGNANCY AND MATERNITY LEAVE ........ E-4 SPECIAL CIRCUMSTANCES ......................... E-4 EXTRAORDINARY LEAVE........................... E-5 SICK LEAVE .............................................. E-5 PERSONAL LEAVE ..................................... E-5 HEALTH INSURANCE ............................... E-6 GUARANTEE CARD ................................... E-6 THE COVERAGE......................................... E-6 COST ........................................................ E-6 ADMINISTRATION ..................................... E-6 HEALTHCARE PACKAGE ............................ E-7 PENSION................................................... E-7 OLD-AGE PENSION .................................... E-8 WIDOW’S PENSION .................................... E-8 ORPHAN’S PENSION................................... E-8 DISABILITY PENSION ................................. E-8 APPLYING FOR PENSION ............................ E-8 PENSION ALLOWANCE ............................... E-9 EARLY RETIREMENT ................................. E-9 REDUCED PAY .......................................... E-9 SPECIAL OBLIGATION FOR RECIPIENTS .... E-10 DECEASED BENEFITS ............................. E-10
B: THE GOVERNMENT ORGANIZATION................................... B-1 ORGANIZATIONAL CULTURE................... B-5 CORE VALUES AND STRATEGIC COMPETENCIES ................................................................. B-6 C: INTAKE PROCESS ...........................C-1 DEFINITIONS OF EMPLOYEE STATUS .......C-1 RECRUITMENT .........................................C-1 SELECTION...............................................C-2 APPOINTMENT .........................................C-2 THE USE OF EMPLOYMENT CONTRACTS ..... C-2 RELOCATION EXPENSES...........................C-3 D: INTEGRITY ......................................D-1 SEVERAL OBLIGATIONS OF EMPLOYEES..D-1 OATH AND PLEDGE ...................................D-1 CONFIDENTIALITY .....................................D-2 SIDE JOBS AND BUSINESS ACTIVITIES .........D-2 USE OF GOVERNMENT PROPERTY...............D-2 GIFTS ........................................................D-2 COMPLAINTS .............................................D-2 INTEGRITY CONFIDANT..............................D-3 INTEGRITY BREACHES ...............................D-3 Page 1
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F: HUMAN RESOURCE MANAGEMENT ................................................................. F-1 WORKING HOURS..................................... F-1 THE REGULATION ...................................... F-1 OVERTIME AND TIME-BACK ....................... F-2 HOLIDAYS ................................................. F-2 SICK LEAVE POLICY ................................. F-2 PERFORMANCE MANAGEMENT ................ F-4 ORGANIZATIONAL OBJECTIVES .................. F-4 INDIVIDUAL OBJECTIVES ........................... F-4 THE HR CYCLE .......................................... F-4 HR DEVELOPMENT .................................. F-5 TRAINING AND COURSES ........................... F-6 STUDY ASSIGNMENT.................................. F-6 TRANSFERS .............................................. F-6 DISCIPLINARY MEASURES........................ F-7 SUSPENSION ............................................. F-7
TEMPORARY SERVICE ............................... G-1 PENSION AGE DISMISSAL ........................... G-1 REORGANIZATION OR DOWNSIZING ........... G-1 OTHER GROUNDS ...................................... G-2 TERMINATION OF EMPLOYMENT CONTRACTS ............................................. G-2 H: LEGAL PROCEDURES ................... H-1 PERSONNEL FILES.................................... H-1 OBJECTIONS AND APPEAL ....................... H-1 OBJECTIONS .............................................. H-1 APPEAL..................................................... H-2 Civil servants ............................................ H-2 Employees on contract .............................. H-2 I: EMPLOYEE PARTICIPATION ........ I-1
G: DISMISSAL ...................................... G-1
GOA ......................................................... I-1
CIVIL SERVANTS ..................................... G-1 DISMISSAL UPON OWN REQUEST ................G-1
J: INDEX .................................................... 1
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A Section
A: Introduction Welcome on the Employee Handbook. The handbook aims at providing Public Servants employed by the Government of St. Maarten with information about personnel and organization policies. The Employee Handbook was first created by the department of Personnel & Organization (P&O) in 2007 as a paper version. As of 2011 it exist as a website. Since not all government employees have internet access on the job, a document version will remain available. The navigation of the document and website versions are similar. The only difference is that the 'Introduction' section of the paper version is cut up in three separate tabs on the website. They are called: Introduction, News, and Handbook. The rest of the tabs have the same names as the chapters of the Employee Handbook. The tab ‘downloads’, is the same as the paragraph 'A policy overview' and allows you to view or download (almost) all documents that the handbook refers to. You can also get to these documents via hyperlinks on the web pages, which give a summary of the specific policy. Several of the policies listed in the handbook are being revised. Updating and revising policies is an ongoing process and, as such, is never final.
So, a handbook, by definition, is a snapshot in time. However, if texts in policy documents have not yet been revised to reflect the constitutional changes, they remain in effect until they are amended or revoked. The 'News' page will keep you informed about changes in policies and is used to disseminate these documents. The website is kept up to date continuously while the document version is updated once a year. You can visit the website at: http://pnobeleid.sharepoint.com.
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News The previous paper version of the handbook was 2011. Since that publication these policies have been revised or added. Subject
Official name and location in the handbook
1. Reinstatement and transfer
Her- en overplaatsingsbeleid 2012, date September 2012
(Revision) 2. Intake policy (Revision) 3. Pension Allowance (Revision) 4. Salary Advance (Revision) 5. Early Retirement (VUT) (Retraction) 6. Reimbursement of training cost (Revision) 7. Business trip expenses (Update) 8. How to file objections and requests (New) 9. Extraordinary leave (Revision)
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Location: Human Resource Management, Transfers Instroombeleid, date October 2012 Location: Intake Process Uitkeringen bij wijze van Pensioen, date: November 2012 Location: Benefits, Pension Voorschottenbeleid 2012, date November 2012 Location Benefits, Remuneration Abolition of early retirement as of June 1, 2013 Location: Benefits, Pension Beleidsregels HRD 2013, date: November 2013 Human Resource Management, HR Development Reis en verblijfkosten 2013, date: November 2013 Location: Benefits, Business trip expenses Het indienen van verzoeken en bezwaren, date: June 2014 Location: Legal Procedures Bijzonder verlof 2014, date September 2014 Location: Benefits, Vacation and Leave
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I N T R O D U C T I O N
The handbook The Employee Handbook is intended for all (civil servants and non-civil servants) who are employed by the government of St. Maarten1, with the exception of the teaching staff. Each government employee has rights and obligations which are laid down in ordinances and decrees together making up the legal position of civil servants. Mentioned ordinances and decrees also apply to public servants who are in service on the basis of an employment contract. For this reason, the general term employee is used in the handbook. If there is cause for distinction between civil servants and employees on contract it will be stated in the text. The first Employee Handbook was compiled by the Personnel and Organization department (P&O) in 2007. Government employees´ legal position was considered to be a complex maze of rules and regulations. At that time St. Maarten was part of the Netherlands Antilles, and as an Island Territory could not make, or amend any of the ordinances that made up the legal position of its employees. Only there where provisions were made in these ordinances that the islands could make decrees, could St. Maarten develop its own policies within the framework of that ordinance. It goes without saying that a lot has changed since the publication of the first handbook in 2007. Several new policies were introduced and government went through two reorganizations. Besides formalizing many changes within the organization, the first reorganization was necessary to introduce major new policies such as: job classification, the new remuneration system, and a new performance management system. The second reorganization was necessary in order to complete the transition from Island Territory to Country St. Maarten within the Dutch Kingdom. The result of this constitutional change was that several existing policies had to be updated. Sometimes this entails a simple change, such as changing the relevant authority or the name of the country; other times more (technical) changes are required. So an updated handbook was compiled in 2011. It was decided then to publish it both as a document and a website. Since that time the website is being kept up to date with every change of policy. The document version however was not. An updated version (2015) has now been made available. It is the intention to publish an updated document version once every year. How to read this handbook The primary goal of the handbook is to provide its reader with general information on existing policies concerning employment by the government of St. Maarten. Secondly, this handbook also provides details on where to find the full texts of these policies. As all ordinances, decrees and most policy documents are written in Dutch, the handbook finally provides summaries of the most important policies in English. For the sake of clarity, below are some remarks on the use of certain terms in this document. 1. The word ‘policy’ can reflect on an ordinance (Landsverordening or Lvo for short), decree-egm (decree entailing general measures = Landsbesluit houdende algemene maatregelen or LB-ham for short), or a policy document approved by decree (Landsbesluit or LB for short).
Parts of the policies described in this handbook, especially policies approved by decree (LB) may not apply to those parts of the civil service for which the Governor is not the competent authority, or for which other regulations apply like the Coast Guard. 1
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2. Only a short summary of the policy in question can be provided, therefore many details are not included in this document. 3. For the sake of readability the employee is generally referred to as ‘he’ instead of ‘he /she’. 4. Take note of the disclaimer; if the texts in this handbook give rise to disputes about the content or application of the policies it describes, the original texts will be upheld. 5. The footnotes in the document version provide publication information of the policies described, so that the original documents can be found and readers can familiarize themselves with it if so desired. The hyperlinks on the webpages take you straight to a pdf version of that document. 6. Several of the policies listed in this document are being revised. Some changes are minor and the result of the change in constitutional status, others are more extensive. Updating and revising policies is an ongoing process and will never be final. A handbook, by definition, is a snapshot in time. However, if texts in policy documents have not been revised as yet to reflect the constitutional or other changes, they maintain their legal force until they are amended or revoked. The handbook consists of several sections, each handling a number of related policies surrounding the topics listed below. Following this paragraph is an overview of all main existing policies, their publication data, and their relationship to one another. The sections are: A. B. C. D. E. F. G. H. I. J.
Introduction Government organization Intake process Integrity Benefits Human resource management Dismissal Legal procedures Employee participation Index
How do policies relate to one another St. Maarten is a state of Law. The legal position of the civil service is regulated by several ordinances (Lvo’s). Sometimes provisions are made within these ordinances to make additional rules by decreeegm (LB-ham) so they form the second layer of regulation. A third layer consists of policy-documents which are usually approved by decree (LB). Documents in this layer can typically serve two purposes: 1. they further detail the application of parts of an ordinance or decree-egm; 2. they set rules in new areas and as such often serve as predecessors for future regulations. Before providing you with an explanation and summary of the different policies, an overview of all main existing policies and how they are related is presented.
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A policy overview On the first level the main ordinances are listed, marked by a number. On the second levels, marked by a letter, are decrees-egm that are linked to these ordinances. The third levels, marked by dashes, are policy documents established by decree. These are not all ordinances and decrees pertaining to personnel, but they are the most important ones. 1. Substansive Civil Servants Law
a
2
3
Lvo Materieel Ambtenarenrecht. (AB 2010, GT no 25)
- Calculation of acting-allowance
Berekening waarnemingstoelagen (brf 2471-08)
- Reinstatement and transfer
Her-, en overplaatsingsbeleid 2012 (LB-12/0339)
Remuneration regulation
LB-ham: Bezoldigingsregeling ambt. (AB 2013, GT no 2)
- Remuneration policy
Beloningsbeleid (BC301007.9 + 100608.9)
- Workforce policy
Formatiebeleid (BC220108.31)
- Intake policy
Instroombeleid 2012 (LB-12/0066)
- Performance management
Performance management (BC141209.23 + 120808.12)
- Business trip expenses
Reis- en verblijfkosten 2013 (brf-2690/12)
- Reimbursement training cost
Beleidsregels HRD 2013 (LB-13/0854)
- Contribution in burial cost
Tegemoetkoming begrafeniskosten (brf 359, dd 170196)
- Salary advance
Voorschottenbeleid 2012 (LB-13/0126)
b Working hours
LB-ham: Werktijdenregeling (AB 2013, GT no 639)
Vacation and leave ordinance
Lvo: Vakantie en vrijstelling van dienst (2013, GT no 641)
- Sickleave policy
Ziekteverzuimbeleid (BC220205.12)
- Extraodinary leave
Bijzonder Verlof 2014 (LB-14/0270)
- Non-payment vacation days
Geen uitbetaling vakantiedagen (brf 4341-06)
Health insurance ordinance - Healthcare package
Lvo: Regeling vergoeding ziektekosten (2013, GT no 649) Information brochure healthcare package BZV (2007)
4
Reduced pay ordinance
Lvo: Wachtgeldregeling (AB 2013, GT no 784)
5
Pension ordinance
Lvo: Pensioenlandsverordening (AB 2013, GT no 785)
- Pension allowance 6
A-5
Civil service court ordinance
Uitkeringen bij wijze van pensioen (brf 3179/12) Lvo: Regeling Ambtenarenrechtspraak (PB 1951, 134)
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B Section
B: The Government Organization The government organization is also regulated by Law. The organizational structure consists of: 1. The organizational ordinance (AB 2010, GT no 6) which lays down the main structure of the organization, dividing it into 7 ministries; each with their main objectives and subdivision in departments and services. 2. A decree-egm, per ministry, detailing the main tasks of each ministry and its departments and services. It further outlines the authority, responsibilities and relationships of management within the ministry. 3. The complete workforce of each ministry, established in function books with job descriptions for every position. The main tasks of each ministry can be summarized as being responsible in its own domain for: 1. preparing policy and legislation; 2. coordinating the execution of policies; 3. inspecting proper execution of policies; 4. monitoring and evaluating the effectiveness and efficiency of policies. St. Maarten has 7 ministries which are established by a decree-egm. They are listed below with their Dutch abbreviations in brackets together with their publication data: 1. General Affairs (AZ: AB 2013, GT no 10) 2. Finance (FIN: AB 2013, GT no 36) 3. Justice (JUS: AB 2013, GT no 44) 4. Education, Culture, Youth & Sports (OCJS: AB 2013, GT no 52) 5. Tourism, Economic Affairs, Traffic & Telecommunication (TEZVT: AB 2013, GT no 122) 6. Housing, Physical Planning, Environment & Infrastructure (VROMI: AB 2013, GT no 145) 7. Health, Social Development & Labor (VSA: AB 2013, GT no 75) The Governing Structure of St. Maarten Governor
Parliament
Council of Ministers
Minister of Gen. Aff.
B-1
Minister of Finance
Minister of Justice
Minister of ECY&S
Minister of TEATT
Minister HSPE&I
Minister HSD&L
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G O V E R N M E N T
O R G A N I Z A T I O N
The organizational design was laid down in the Organization Memorandum2. In its design a distinction is made between core responsibilities and core tasks. Policy development, monitoring & evaluation, legislation, accountability, inspection and execution are all core responsibilities of the Government. Inspection and execution however, are not core tasks. This means they could be outsourced if there is a need to do so. Following is an organization chart for each ministry. Services that are responsible for execution or inspection are colored grey. DMO is the exception here with internal departments that provide services for all ministries. In the organizational ordinance the inspection and execution services have greater management authority than the policy departments and are required to enter into a management agreement (SLA) with the ministry detailing the quantity and quality of the services to be delivered. This practice has not yet been fully implemented. The Ministry of General Affairs Secretary General Staff Bureau
Legal Affairs & Legislation (JZW)
Foreign Affairs (BB)
Interior & Kingdom Relations (BAK)
Public Service Center (PSC)
Resources & Support (DMO)
P&O ICT DIV Facility Services
The Ministry of Justice Communication
Secretary General Secretariat CoM
Staff Bureau
Fire Department
Judicial Affairs
Police Census Office
Prison Immigration
Customs Unusual Transactions Court of Guardianship 2
Organisatienota BC080408,24 tevens vastgesteld door de Eilandsraad
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G O V E R N M E N T
O R G A N I Z A T I O N
The Ministry of Education, Culture, Youth & Sports (OCJS) Secretary General
Staff Bureau
Education
Culture
Youth & Sports
Inspectorate OCJS Study Financing Student Support Education Innovation Exams
The Ministry of Finance
Public Education
Secretary General
Staff Bureau
Finance
Fiscal Affairs
Tax Office Accountancy
The Ministry of Tourism, Economic Affairs, Traffic & Telecommunications Secretary General Staff Bureau
Economy, Trafic & Telecom
Meteorology Economic Licenses Inspectorate TEZVT Aviation & Shipping Tourism Statistics
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G O V E R N M E N T
O R G A N I Z A T I O N
The Ministry of Housing, Physical Planning, Environment & Infrastructure (VROMI) Secretary General
Staff Bureau
Policy department VROMI
Public Works Land Registry Inspectorate VROMI New Projects Licenses
The Ministry of Health, Social Development & Labor (VSA) Secretary General
Staff Bureau
Health Care
Social Development
Labor
Inspectorate VSA Welfare Ambulance Collective Prevention
Social Development Labor Office
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G O V E R N M E N T
O R G A N I Z A T I O N
Organizational Culture The organizational culture is the set of shared values, beliefs and customary ways of thinking which shape and guide the behavior of the people working within the organization. Aspects of culture may focus on: rituals, signs, symbols and customs within the organization. Within the scope of development of our performance management system the 'organizational culture project' was initiated in 2006. Performance management (PM) is a way of managing the performance of the entire organization, both management and personnel. In anticipation of the new constitutional status it was felt that higher standards needed to be set for service levels to the public and professional conduct of employees. In order to determine the direction in which our system of performance management should lead the organization, management needed to establish: 1. the organizational culture as it was; 2. the organizational culture as it should be; 3. the core values in the future organizational culture; 4. the competencies that carry those core values. Initially the research was done by means of workshops with management. Then a survey was done among the staff to find out what their thoughts were on the matter. The conclusion was that both management and staff wanted to move in exactly the same direction. As a result these 4 core values were set: 1. Service/Client Orientation 2. Quality 3. Reliability 4. Continuous Improvement Each core value is supported by several (strategic) competencies. Each ministry sets their own set of six strategic competencies they want to work on with their staff. Performance objectives for individual staff members on these competencies will be set and evaluated through the performance management system. For more information on the performance management system see section F. The next page shows a table which provides an insight on how core values and strategic competencies are linked to one another. The core values and strategic competencies were established by decree by the former Island Government of St. Maarten3.
3
Memorandum Organizational Culture, Core values and Strategic Competencies (BC 261006.22)
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O R G A N I Z A T I O N
Core values and strategic competencies The strategic competencies are also described in a catalogue4. Core Value Service/Client-orientation: Quality: Reliability Continuous improvement -
4
Strategic Competencies Advisory Skills Communicative Skills Organizational Awareness Organizational Sensitivity People Skills Problem Identification Quality-of-Work oriented Strategic Thinking Accuracy Assertiveness Effectiveness Professionalism Teamwork Technical Expertise Accountability Independence Integrity Coordinating Skills Innovation Motivation Preventive-Minded
Competency Catalogue (BC261006.22)
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C Section
C: Intake process Every organization needs people. Staffing the government organization is one of the core tasks of the P&O department. Several policies have been established to guide this process. The entire intake process is guided by the ‘intake policy5; a single policy document bundling 5 key policies on: recruitment, selection, appointment, relocation expenses and incentives.
Definitions of employee status Employees can be employed in two different ways: Type: 1 Regulated through : Appointed by: Duration of Appointment:
civil servant (ambtenaar) LMA the Governor permanent or defined period
Type: 2 Regulated through : Decision taken by: Duration of Appointment:
contractual employment Civil Code & articles within the individual labor agreement respective Minister permanent or defined period
As stated in the introduction, the individual labor agreement regulates that policies that apply to civil servants also apply to those employees working on a contractual basis. Although employment as a civil servant is preferred, there are specific circumstances in which a labor agreement is required or preferred. Considerations for the use of a labor agreement are listed in paragraph ‘Appointment’ (C-2).
Recruitment Recruitment is the process of identifying potential candidates for a specific job and inviting them to apply for that position. It is the secretary-general of a ministry, who is responsible for the ministry’s personnel-budget and, as such, decides which functions will be opened for recruitment. P&O edits the texts for vacancy advertisements and places them on its own website: http://pnosxm.sharepoint.com. The department of Communication (DCOM) can place smaller adds in the newspaper if so requested, and sometimes media abroad is used to catch the attention of potential candidates and direct them to the P&O website. There is a separate tab on the P&O website for internal vacancies. These are vacancies that are only open to government employees. Positions that require an educational level of associates 5
Instroombeleid 2012
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P R O C E S S
degree or less are opened as internal vacancies first. Only if no suitable candidates can be found, will they be opened to the general public as well.
Selection The selection of the right candidate is done by a selection committee. The intake policy stipulates who is part of the selection committee for each type of position. 1. The first step in the selection process is the pre-selection of the application letters. 2. After that the selected candidates have a job interview with the committee. 3. Depending on the position, a skill test can be considered. For instance, most candidates for management positions are tested on several management skills. 4. For some positions a psychological test may be required. 5. A medical examination is required by law6. However it is usually done after approval for appointment. After the committee has made its choice salary negotiations are done by P&O. Most other benefits are regulated by law and are non-negotiable. If an agreement is reached, an advice for appointment is drafted for the Minister.
Appointment In order to be appointed as a civil servant one needs to pass the medical examination, have the Dutch nationality7 and have a declaration of good conduct (police report). Candidates coming from abroad have to get this declaration in their country of residence. In principle, permanent appointment is preceded by a temporary appointment serving as a trial period of one year.8. There are other instances in which one can receive a temporary appointment, for instance if the work is of a temporary nature. The use of employment contracts Someone who does not have the Dutch nationality cannot be appointed as a civil servant, but can still be hired by means of a labor agreement. Acquiring medical and good conduct declarations can be time consuming. If these cannot be acquired before the intended starting date, one may also enter into a conditional labor agreement prior to a civil servant appointment. The third reason government opts for the use of labor agreements is when employees are hired for a specific time and are required to move to St. Maarten and return afterwards.
6
Both the LMA art. 7, and the Pensioenlandsverordening require this medical examination
7
LMA art. 6
8
LMA art. 5
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P R O C E S S
Relocation expenses If a new employee has to move to St. Maarten to take up his position, he is entitled to compensation of relocation expenses9. These expenses include travel expenses for the family, temporary accommodations when arriving on the island, transportation of the content of his house and transportation of his car. In case one comes for a fixed period of three years, the cost of repatriation can be included. If the contract period is less than three years the relocation expenses are reimbursed proportionally.
9
Instroombeleid, chapter 4
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D Section
D: Integrity Integrity is extremely important within the organization. As a government organization our core business is to provide services to the people of St. Maarten. The general public must be able to trust the public servants assigned to deliver these services. Aside from that, ‘reliability’ was identified as one of our organization’s core values. Several articles in the LMA are dedicated to enhancing integrity. Breach of integrity standards is considered dereliction of duty and is subject to disciplinary measures (see section F).
Several obligations of employees Chapter 7 of the LMA covers several topics that can be considered standards of integrity and conduct. While not intended to list all the forms of behavior that are considered unacceptable in the workplace, the following are examples of misconduct that may result in disciplinary action, including termination of employment: - theft or inappropriate removal or possession of property; - falsification of (timekeeping) records; - working under the influence of alcohol or illegal drugs; - possession, distribution, sale, transfer, or use of alcohol or illegal drugs in the workplace; - fighting or threatening violence in the workplace; - disruptive activities in the workplace; - negligence or improper conduct leading to damage of Government-owned property; - insubordination or disrespectful conduct; - sexual harassment; - breach of approved policies; - unauthorized disclosure of confidential information. Besides these self-evident forms of misconduct that would not be accepted in any workplace, the LMA lists a number of specific obligations for government employees. Oath and Pledge When accepting their position employees are obligated to take an oath or pledge of purity and an oath of office. The oath or pledge is taken before the Minister who has been mandated by the Governor.10
10
LMA Art. 43
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I N T E G R I T Y
Confidentiality Employees are bound to secrecy in their position11. This confidentiality exists so that Government can control the flow of information to the outside non-government world and can hold employees legally accountable for disseminating (potentially damaging) information without prior permission from their managers. It is also forbidden to abuse information one comes accross in the execution of ones job. Side jobs and business activities It is common on St. Maarten for people to have one or more side jobs or to participate in some fashion in business activities next to their primary job. This, however, can lead to conflicts of interest, or conflict with proper execution or status of one’s position within Government. For instance, there is a conflict of interest if an employee commissions work to his/her own company or to a family member’s company. Another example of a conflict of interest is the situation in which an employee accepts a position in an organization that does, will or might do business with Government; even when that employee’s activity is limited to duties as a shareholder, director or (silent) partner. Before starting any of such activities one has to ask permission12 to do so through the department head. It is the secretary-general who will ultimately decide whether or not these activities are permitted. Use of government property It is forbidden to use government property for your personal interest or the personal interest of others13. Gifts If people offer gifts to a government employee, other than promotional gifts of little value, it is reasonable to suspect that the person expects something in return. Therefore, employees may not accept any gifts or promises, without prior permission14. Furthermore, as a government employee one may not request a gift or promise. Additionally, exoneration of an obligation or fulfillment of an agreement is also considered a gift and commitments are considered promises. A gift or promise to your spouse, children or parents, as well as companies and businesses that you financially benefit from, are considered gifts or promises to you. When offered a gift or promise, you have to inform your department head immediately. Complaints If a complaint is filed against an employee, he will be notified of such and get the opportunity to give his opinion on the matter15.
11
LMA art. 61 + 62
12
LMA art. 51 t/m 56
13
LMA art. 57
14
LMA art. 58 t/m 60
15
LMA art. 78
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Integrity confidant A new paragraph in the LMA is the introduction of ‘integrity confidants16’. The idea here is that public servants may have a need to confidentiality when seeking advice in matters pertaining to integrity or their knowledge of integrity breaches of others. The law has made special provisions here to protect this confidentiality. For instance, to exempt the confidant of his duty to report what he has learnt in this position about integrity breaches to his superiors or law enforcement agencies. Integrity breaches In order to enhance integrity, employees have to report reasonable suspicions of any integrity breaches (also outside of their own department) to their department head17. The department head then has to take action in order to initiate an investigation. Government is in the process of establishing a separate Integrity Bureau which will be tasked with this and several other tasks pertaining to integrity.
16
LMA art. 82 + 83
17
LMA art. 84
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E Section
E: Benefits The legal position of employees harbors many benefits. They are listed in this section. Next to your remuneration there are policies on vacation and leave, health insurance, pension and deceased benefits.
Remuneration Remuneration is largely regulated through the remuneration policy18 (decree-egm), which in turn has its legal basis in the LMA19. Salary scale Government has a comprehensive salary system which was introduced on January 1st 200820. The system consists of salary scales which are more in line with the general labour market, as well as of the classification of all job descriptions within the civil service. Consequently, the salary scale of each employee is determined by the position that employee holds. If, at the time of appointment, there are doubts about whether one can fully execute the position, due to e.g. lack of experience, a run-up scale may be applied. The salary structure consists of a total of seventeen salary scales, each with twenty increments. The amounts in the scales can be adjusted yearly depending on the increase in the cost of living. Periodic increments Awarding a periodic increment is dependent on one’s annual performance. Final assessments have to be done every year in the month of November. An increment can be allotted based on the result of mentioned assessment and takes effect as of January 1st. of the following year. The immediate result of the assessment can be to receive: no increment, 1 increment, or 1 increment plus a bonus. If one has reached the maximum of one’s current scale, no more increments can be awarded as long as one stays in that same position. For more information on the assessments, see section F. Allowances The LMA together with the remuneration policy21 provides the legal basis for a number of allowances. Some are very specific and only apply to specific circumstances. The more general ones are mentioned in this paragraph. 18
Bezoldigingsregeling ambtenaren (AB 2013, GT no 2)
19
LMA art. 18 e.v.
20
Beloning- en Salariëringbeleid
21
Bezoldigingsregeling ambtenaren.
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Filling-in allowance22 When an employee has to fill in for a position that carries far greater responsibilities than his own position, he may be entitled to an allowance during that period. The amount of such an allowance is the difference between his salary and the salary that he would receive if he were to be appointed to that position. However, the period of filling-in has to be 30 days or more on a stretch, or scattered within a 6-month period, or 60 days over a 12 month period. Specific task allowance23 Employees sometimes have a specific task that does not fall within the scope of their job description. In such cases a specific task allowance may be considered. Such allowances are always temporary and are never rewarded for more than one year. The amount awarded can be a maximum of 25% of one’s gross monthly salary and depends on either the number of additional hours one works to complete this task, or the difference in classification of this task as compared to the work one ordinarily does. Child allowance24 Employees are entitled to child allowance if they are: 1. the parent or legal guardian of a child or children under the age of 18; 2. The parent or legal guardian of a child or children under the age of 25, attending school. The amount of the child allowance depends on the number of children25. For: 1. one child NAf. 55, -- per month; 2. the second child NAf. 50, -- per month; 3. the third child NAf. 45, -- per month; 4. every additional child NAf. 25, -- per month (to a maximum of 10 children). The child allowance is paid out simultaneously with the monthly salary. If it is proven that the child allowance is not used for the benefit of the child(ren), it can be terminated. Jubilee When an employee celebrates 25, 35 or 40 years of being in government service, he receives a bonus for loyal service (also known as jubilee) and one day off. An employee who has worked within different time periods, and even for different governments within the Kingdom, may add up all these years of government service, since these time periods are also tallied as length of service. The bonus is one month’s salary.26 Business trip expenses When going on a business trip on behalf of Government, employees are entitled to a per diem of a maximum of $ 300, --. For traveling to Europe, the amount is a maximum of € 300,--. $ 200,-- is to cover the cost of lodging. The cost of lodging has to be justified upon return. 22
LMA art. 25
23
Bezoldigingsregeling art. 14
24
LMA art. 28
25
Bezoldigingsregeling art. 15
26
Bezoldigingsregeling art. 17 e.v.
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Salary Advance When an employee finds himself in an unforeseen emergency situation, an advance on his salary is possible27. Salary advances cannot exceed one’s gross salary and one can only receive one salary advance per year. Advancements have to be repaid within a maximum of twelve (12) months. An exception can be made for employees who earn less than NAf. 3000, --. They can receive a higher advance, if they can prove that they have exhausted all possible alternatives. They have to pay back a monthly amount equivalent to 8% of their net salary. Only the following situations qualify as falling under the category of ‘unforeseen emergency’: 1. travel and accommodation expenses due to illness or death of a family member up to the second degree; 2. funeral expenses for a family member up to the second degree; 3. necessary medical expenses that are not (completely) covered by government’s health insurance; 4. emergency repairs to one’s dwelling as result of fire or natural disaster; 5. Employees who earn less than NAf 3000,-- per month can also apply for an advance when experiencing problems paying for: school fees, house rent; or utilities
Vacation and leave Another benefit for employees is the right to: vacation, vacation allowance, and leave of absence in case of special circumstances. Vacation Article 8 of the vacation regulation28 states the number of vacation hours, with pay, that an employee is entitled to. The number is based on one’s salary scale. The following table lists the equivalent of these hours in days. Scale 1 to 5 Scale 6 to 9 Scale 10 to 13 Scale 14 to 17
19 vacation days 22 vacation days 25 vacation days 28 vacation days
If an employee wants to take up vacation days he has to ask permission from his / her department head. Vacation can be refused or revoked if service does not permit for the worker to take time off. Those vacation days can consequently be taken at a later date. If an employee does not take the days in the year in which they were allotted, they may be transferred to the next calendar year. However, if the employee does not take them in that year they will expire29. An exception to expiration of vacation days can be made if this is caused by refusal or revoking of the employee’s vacation. In that case the department head may allow transferring them for yet another year.
27
Voorschottenbeleid 2012
28
Regeling vakantie en vrijstelling van dienst ambtenaren (AB 2013, GT no 641).
29
Idem art. 6
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Expired vacation days will not be compensated in money unless30: 1. expiration is caused by a department head refusing or revoking vacation two years in a row; 2. an employee is approaching his retirement day, and is not allowed to take up his remaining vacation days; 3. an employee dies. In that case the unused vacation days will be paid out to the spouse, children or other immediate family, depending on the situation. If there is no immediate family, the money can be used for the employee’s final expenses. If an employee becomes ill during vacation, those days may be considered sick leave. The employee has to bring a medical statement from an attending doctor to prove that he was ill. See the paragraph on sick leave for more details. The number of vacation days the employee is entitled to can be reduced with 1/12 for each month that the employee has been absent for reasons not being: vacation, sick leave, extraordinary leave with full pay, maternity leave or time-back. Employees have to finish their vacation days before the end of their employment with Government. Only if this opportunity is denied in the interest of the service unused vacation may be compensated. If the employee has already erroneously taken up more vacation days than he is entitled to, these will be reduced the following year. Vacation allowance Employees are entitled to a vacation allowance of 6%. It is paid in the month of June31. Pregnancy and maternity leave A female employee, in the event of pregnancy, is entitled to a total of 12 weeks of leave. The estimated due date must be medically determined and the pregnancy leave starts 6 weeks before this date. Maternity leave lasts up to 6 weeks after the date of delivery. If the child is born before the due date the employee is not entitled to extra maternity leave1. If the child is born after the due date, the employee is still entitled to 6 weeks of maternity leave. If the employee is fit to work up to 4 weeks till the due date, she may opt to do so, and can add those two weeks to her maternity leave. . Special circumstances Requesting leave for special circumstances must be in writing to your department head.32 Employees are entitled to leave of absence in case of the following special circumstances: - notification of intended marriage: 1 day; - marriage: 4 days; - wedding day (family members) 1st, 2nd and 3rd degree: 1 day; - expectant fathers: 2 days; - holy communion of wife, children, step- and godchildren: 1 day; - when celebrating one’s 25th, 35th and 40th anniversary of government service: 1 day; 30
Rondschrijven dd 10 augustus 2006, no 4341-06
31
Vakantie en vrijstelling van dienst art. 22
32
Vakantie en vrijstelling van dienst, art. 26.
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when celebrating one’s 25th or 40th wedding anniversary, or celebrating the 25th, 40th, 50th, and 60th wedding anniversary of one’s (grand)parents, step-parents or in-laws: 1 day; to care for a seriously ill spouse, parent or other close family member: maximum 15 days. A doctor’s note is required. This type of leave is referred to as short care leave33; death of spouse or parents: 2 days; death of grandparents, roommates and blood relatives to the 3rd degree: 1 day; when taking an exam (for a recognized diploma): 1 day before and on the day of the exam; moving: if an employee has his / her own household: 2 days.
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Employees who are on the board of a union represented in the GOA, are entitled to extraordinary leave of absence up to a maximum of 15 days per year for34: - attending board meetings; - attending meetings of international organizations of unions, as board member of that organization, or as representative of their own union therein. Members of the GOA can get up to 4 hours of leave of absence per week to attend meetings of the GOA35. Extraordinary leave Granting extraordinary leave of absence has its legal basis in the Vacation and leave of absence ordinance chapter 5. It is further regulated by decree in policy document: ‘Bijzonder Verlof 2014’. If the short care leave of 15 days is insufficient, a civil servant can request a maximum of 3 months leave for care. These 3 months leave can be partially spent abroad. Employees receive a full salary in the first month and 50% in the second and third months. The request must be supported by a medical indication and government’s service must allow for the employee’s absence. Extraordinary leave of absence can also be granted without pay. This type of leave is only given in the case of long-term leave for care or to complete a study, which could benefit the organization. It is granted for one year and can be extended. Public servants that do not return after unpaid leave, are considered to have severed their employment with government. Sick leave Granting sick leave, with pay, has its legal basis in the LMA chapter 6 and the Vacation and leave of absence ordinance chapter 6. It is further regulated by decree in the policy document ‘Ziekteverzuimbeleid36’. The policy covers key areas, including: 1. reporting of illness, 2. reporting of illness while abroad, 3. long-term illness, 4. extraordinary circumstances, and 5. the appeal process during illness. The policy is further explained in section F, HR management. Personal leave During working hours employees cannot be absent due to personal reasons without permission from their section- or department head. Personal leave may be granted by the manager to attend to 33
Bijzonder Verlof 2014
34
Regeling vakantie en vrijstelling van dienst, art 26.
35
Brief aan GOA dd 6 juli 2007 no 3011-07
36
Ziekteverzuimbeleid (2005)
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personal matters that cannot be attended to outside office hours. This includes visits to doctors and other healthcare providers etc. Personal leave is limited to five hours per month37.
Health Insurance Another benefit for employees is health insurance. This policy is regulated by ordinance38 and provides each employee, and his/her family with a healthcare package.39 Guarantee Card Both the employee and his/her family members (spouse and children) are provided with their own personal guarantee card. When using the card the cost of (most) medical services will not have to be paid up front, because the healthcare providers will bill the healthcare administrator (SZV) directly. The card is valid for two years and then has to be renewed. However, the card expires as soon as its holder leaves government service. If one loses his/her card he/she will have to pay Nafl. 10,- in order to get a replacement. Pending the arrival of a new guarantee card one can get a temporary guarantee letter. The card only covers medical expenses for the person to whom it has been issued. P&O has to be notified of all changes in the employee’s personal or family situation; a special form for this is available at P&O. The coverage The insurance covers 90% of the medical expenses in the package for employees and their family who earn a salary equivalent to salary scale 6 or higher. Those who earn a salary that is equivalent to scale 5 or lower receive 100% coverage. If an employee has paid for medical expenses out of his own pocket, he can be reimbursed, provided that those expenses fall within the healthcare package. Cost The contribution of those employees who have a 90% coverage is collected through their salary payments. The health insurance premium which is due, is collected in the same way. The premium is: - 1,05 % of one’s salary, if this is equal to or less than the starting salary of scale 6; - 1,15 % of one’s salary, if this is between the starting salary of scale 6 and the first increment of scale 6; - 1,25 % for all others. Administration The Government of St. Maarten has outsourced the administration of its healthcare policy to the SZV. They are in charge of the execution, control and administration of the healthcare package. Information on who is entitled to coverage is provided to them by the department of P&O. P&O uses a standard form that each employee has to sign. Changes in personal and family situation are 37
Werktijdenregeling art. 8
38
Regeling Vergoeding Behandelings- en Verplegingskosten Overheidsdienaren
39
Info Brochure Health Care Package (2007)
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reported on the same form. Aside from a completed form, copies of the ID’s of all insured family members are required, and sometimes a birth certificate or marriage certificate. SZV checks all prescriptions and bills that come in from healthcare providers. They also check if family members are not insured twice. For example, if one’s spouse is working elsewhere and is already covered by SZV, they will not be covered by government’s insurance plan. Healthcare package The standard health care package covers the following: General Practitioner: there is a list of General Practitioners that one has to choose from. The name of this GP is printed on the Guarantee Card. If an employee chooses to use another General Practitioner, he will not be compensated for the latter. Medical Specialist: only a General Practitioner can refer someone to a Medical Specialist. In order to receive authorization for certain specialist care, the SZV’s medical advisor will have to determine whether it is necessary. Primary hospital care on Dutch St. Maarten: treatments will occur at the St. Maarten Medical Center. Employees in salary scale 6 and above are entitled to 2nd class nursing care whereas employees in salary scales 1 to 5 are entitled to3rd class nursing care. An upgrade to 1st class nursing care is possible and requires paying for the difference between the entitled care and the upgrade oneself. Secondary and tertiary hospital treatment outside of St. Maarten: if secondary hospital treatment cannot be obtained on Dutch St. Maarten the employee will be referred to a medical center or medical specialist abroad. Such referrals have to be approved by the medical advisor of the SZV. Dental care: is covered by government’s dental policy. The Government implemented a dental rehabilitation plan for all of its cardholders. If one is rehabilitated he/she will receive written proof of this from the attending dentist. One will consequently receive preventive care through bi-annual check-ups that must be maintained to keep the rehabilitation status. Once dental rehabilitation has been completed one is entitled to the dental care package. Some treatments are not included in the rehabilitation plan. The charges for these treatments are for the employee’s own account.
Pension Another major benefit for employees is participation in a pension fund40. Enrolment in the pension plan is mandatory for all employees on a contract or an appointment for longer than 6 months, since January 1st, 1998. Prior to 1998, membership was optional. Pension benefits are: an old-age pension as of the age of 60, possibility of a disability pension before the age of 60, and a widow’s and orphan’s pension. The old-age pension age is 6041 and this is also the age an employee has to leave service. As of the age of 25, an employee gains 2% pension rights every year that he/she is in service. A complete pension consists of 70% of the employee’s last salary; thus a complete pension is built up over a period of 35 employment years. 40
Pensioenlandsverordening
41
Landsverordening verhoging leeftijdgrens 1996
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Employees younger than 25 years also participate in the pension plan but are only covered for disability pension and the widow and orphans pension. They do not build up any old age pension rights. The pension premium is partly paid by the employee (currently 8%, levied through the payroll) and partly by the employer (currently 14%, visible on the employee’s pay slip). There are two conditions that have to be met before being able to participate in the pension plan. First, one has to pass a medical exam, and secondly one has to enter employment before the age of 60. As of 10-10-10 the assets of the General Pension Funds for the Netherlands Antilles (APNA) have been divided between the former Island Territories of the Netherlands Antilles. The now General Pension Funds of St. Maarten (APS) is administering the pension plan for the (former) employees. Old-age pension Entitlement to payments of the old-age pension starts as of the age of 60. The maximum pension is 70% of one’s last salary. AOV, which is the general pension for all senior citizens, is included in this amount. The pension is paid out at the end of every month as long as one lives. It is the intention to increase the pension age to 62 year. Widow’s pension When a pensioner passes away, their spouse (and if divorced (also) their former spouse) may be entitled to a widow’s (or widower’s) pension. That is, if spouses were married before the pensioner reached the age of 60. The living spouse may be entitled to this pension until he/she passes away; certain limitations apply42. The pension is 5/7 (five seventh) of the pensioner’s old age pension. If an employee passes away before having reached the age of 60, the pension is 5/7 (five seventh) of the old-age pension that the employee would have received if he had remained in service until 60. Orphan’s pension The children of a deceased pensioner or employee may be entitled to an orphan’s pension. Children under the age of 18 can each receive 1/7 (one seventh) of the old-age pension. This is also applicable to children between the ages of 18 and 25, who are studying or are disabled. The amount doubles if the children become full orphans; meaning both parents have passed away. However, the total amount of the pension (widow + orphans) paid in the name of a deceased employee can never surmount what the deceased received, or would have received as pension. Disability pension If an employee is permanently unable to execute his/her function due to ailment before the age of 60, he/she may be entitled to a disability pension. The amount of this pension is the same as the old-age pension would have been, if the employee would have remained in service until reaching the age of 60. Thorough medical assessments are required to determine permanent disability. Applying for pension Pension is not granted automatically, it has to be requested at the APS office. A request for old-age pension should be submitted 3 months prior to reaching the pensionable age of 60 to allow for sufficient time to deal with the administrative process. Employees reaching their pension age are sent 42
Pensioenlandsverordening
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a notice by P&O to file their pension request 4 months in advance. A request must include the following documents: - dismissal decree; - proof of residence; - filled out income tax form; - one has to fill out some forms provided by APS. If requesting a widows’ or an orphans’ pension, a death certificate and proof of marriage or divorce have to be submitted in addition to the documents mentioned above. Pension allowance Before joining the pension fund became mandatory in 1998, employees who reached the retirement age and were not in the pension fund were granted a pension allowance43. This was half of what they would have gotten from the pension fund had they joined. Employees, who joined the pension fund as of January 1st, 1998 because it became mandatory, retain their right to the above-mentioned pension allowance for their years in service prior to 1998. That is if they did not buy back those service years into the pension plan. Thus this group of employees can get two different types of pension when they reach the age of 60. A pension from the pension fund over the service years as of 1998, and a pension allowance from Government for the years in service prior to 1998. Early retirement As of June 2013, early retirement is no longer possible44.
Reduced pay Employees in permanent service who are honorably discharged due to reorganization or downsizing45 are entitled to reduced pay46. Civil servants in temporary service who have served for at least 5 year uninterruptedly, are also entitled to this. The competent authority to grant reduced pay is the Governor. Requests for reduced pay must be submitted in writing. The duration for which one can receive reduced pay depends on the amount of years in service. For every year spent in service, one is entitled to 2 months reduced pay with a maximum of 24 months. The term ends prematurely if it is revoked or when one dies, turns 60, or acquires a benefit (such as a disability pension) which is more than the reduced pay. The amount of reduced pay is determined by the average income47 over the year prior to dismissal. During the first 3 months of the term of reduced pay, 95% of that income is paid. During the next 7 months, 85%, the following 10 months, 75% and the rest of the term 70%. During the term of reduced pay one remains entitled to health insurance. 43
Landsverordening leeftijdsgrens ambtenaren (AB 2013, GT no 631)
44
Rondschrijven VUT uitkering 3391/12 d.d. 130301
45
LMA art. 99
46
LMA art. 102 and Wachtgeldregeling (AB 2013, GT no 784)
47
Income includes most allowances, see for the definition of income: Wachtgeldregeling overheidsdienaren art. 3
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Special obligation for recipients Reduced pay is an unemployment benefit and the former employee has to provide all information necessary to determine continuation of the entitlement to this benefit. Aside from that, one has to do everything possible to acquire new income and is obligated to accept other positions if and /or when available. New income is deducted if that income plus the ‘reduced pay’ income exceeds the original income on which the reduced pay was based. Reduced pay can be denied, reduced or revoked if one does not live up to the obligations.
Deceased benefits When an employee dies, their spouse is entitled to the lump sum of 3 months’ salaries48. If there is no spouse, this benefit will go to the children. If there are no children, the benefit can go to the parents or siblings, or other family members. If there is no next of kin, the money may be used towards the medical and funeral expenses of the deceased employee. This benefit also applies to employees on reduced pay. If the deceased employee was on non-active duty, the spouse is entitled to 3 times the monthly salary that the employee would have gotten if he/ she had been reinstated. Additionally, Government will contribute NAf. 4500,- towards the funeral expenses49.
48
LMA art. 37
49
Decree of January 7th, 1996 no 359.
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F Section
F: Human Resource Management This section deals with a number of policies regulating the daily operation on the work floor.
Working hours Article 38 of the LMA stipulates that working hours for each department will be regulated by decreeegm as much as is possible. The government has a general working hours regulation50 for all departments or services that do not have a specific one. Some services, such as the Police or the Fire Department, have their own regulations. Those employed with such a service will have to familiarize themselves with the specifics of their regulations. This paragraph only reflects on the general workinghours regulation. The regulation Full time employees are obligated to work 8 hours per day from Monday thru Friday. If the service permits it, flexible working hours can be observed whereby work can start between 7.00 and 9.00 a.m. and can end between 16.00 and 18.00 p.m. The standard lunch break is one (1) hour and can be taken between 12.00 noon and 14.00 p.m. One can opt to take a lunch break of only the obligatory one half hour (i.e. 30 minutes). A longer lunch break is also possible provided that one works 8 hours per day. The department head decides whether flexible working hours are possible and for whom flexible hours should apply. For instance, a department that has to stay open for the public during lunch time cannot allow that all employees leave at the same time. With the introduction of the working hours regulation it is now a requirement for all employees to register when entering or leaving the premises of their job. One who works less than the required 40 hours per week without a valid reason, will have the missed hours deducted from his/her salary. This is in accordance with the “no work, no pay principle”.51 Furthermore, absenteeism without a valid reason is considered dereliction of duty and is subject to disciplinary measures.52 Unless a section head or a department head has granted permission to attend to personal matters that cannot be attended to outside of office hours, absenteeism due to personal reasons is not allowed. This includes visits to the doctor and or other healthcare providers. Personal leave is limited to a maximum of five hours per month.
50
Besluit Werktijdenregeling Ambtenaren (AB 2013, GT no 639)
51
LMA art. 24
52
See paragraph about disciplinary measures
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The department head and the section head check the attendance register for illicit non-attendance and absence of employees within their department. The department head is responsible for keeping a monthly record of attendance and leave of all workers within the department. This record holds the registration of vacation, extraordinary leave, sick leave, personal leave and time back. Overtime and time-back When needed, employees are obliged to work overtime53. Compensation for overtime is given in de form of time-back. The number of time-back hours is equal to 200% of the number of hours worked in overtime if that overtime was done on one’s day off, a Sunday or a public holiday and 150% on other days. However, if the relevant authority is of the opinion that the service does not allow for compensation in time-back, then compensation can be given partly in time-back and partly in money, or in money alone. In the first case the time-back will be the equivalent to the hours worked in overtime, while the rest will be compensated in money. The overtime regulation does not apply to employees in salary scale 9 or higher, or to those in charge of a service or a part thereof. Compensation for these employees will be determined per individual case. Holidays Employees are entitled to the following holidays with pay54. New Year’s day 1 January Good Friday varies Easter Sunday varies Easter Monday varies King’s Birthday 27 April Carnival varies Labor day 1 May Ascension day varies Pentacost Sunday varies Emancipation Day 1 July St. Maarten’s day 11 November Kingdom day 15 December Christmas day 25 December Boxing day 26 December
Sick leave policy Granting sick leave, with pay, has its legal basis in both the LMA chapter 6, and the Vacation and leave of absence ordinance chapter 6. It is further regulated by decree in the policy document 53
LMA art. 26
54
LMA art. 38.4
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‘Ziekteverzuimbeleid55’. The policy covers key areas, including, 1) reporting illness, 2) reporting of illness while abroad, 3) long-term illness, 4) extra-ordinary circumstances, and 5) the appeal process during illness. The SZV has a key role in this policy . The SZV has been contracted by government as our occupational health service. As such, the SZV grants the sick leave and determines when one has to return to work. Reporting illness When an employee is unable to work due to illness he must call his/her department head or the assigned person to inform them of his absence before the start of the normal working day, or shift. For departments with flexible working hours this is before 9.00 a.m. The employee also has to provide the address and telephone number where he can be reached. Furthermore, if possible, an indication of the expected duration of one’s sick leave must be provided: -
3 days or shorter. It is then agreed with the department head when one will return to work. The department head will report the illness to the SZV. If the employee is unable to return on the agreed date, he has to contact the department head again.
-
Longer than 3 days. On the fourth day of illness, the employee must report to the SZV to undergo an obligatory examination by an occupational health doctor.
If an employee is unable to call in sick, a family member or a person living in his/her household can do this for them. When able again he/she must call the department head to confirm his/her illness. When an employee is ill for longer than 3 days, he/she must visit the SZV on the 4th day. The SZV will inform the department head that the employee has been examined and until when sick leave has been granted. If one is unable to return to work on the assigned day, he/she will have to report back to the SZV and request an extension of his/her sick leave. When returning to work, the department will inform the SZV of the employee’s return. Reporting of illness while abroad If one is unable to return to St. Maarten from vacation due to illness, or in order to claim vacation days back which were lost due to illness, one has to report his/her illness during vacation. This is done in the same way as was described in the paragraph ‘reporting illness’. The employee has to call his/her department head immediately and inform him /her of an address and telephone number where he/she can be reached. A medical statement of the attending doctor must be submitted to the SZV upon return, with medical details about the illness, its duration, the ability to travel etc. The SZV will determine whether sick leave should be granted retroactively. The lost vacation days are only given back if sick leave has been granted by SZV. Long-term illness In case of long term illness, sick leave is granted by the SVB for a maximum of 1 month. This period can be extended with periods of maximum 1 month. During this illness one has to remain under supervision of SZV and report back to SZV on the dates indicated.
55
Ziekteverzuimbeleid dd 2005
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The total period of sick leave cannot exceed 4 years for civil servants in permanent service, and 1 year for employees in temporary service. During sick leave one is entitled to full pay for the first 2 years, 90% during the third, and 80% during the fourth year. Suspicion of abuse If the department head suspects an employee of abusing the sick leave policy, he can initiate a socalled first-day-control by the SZV. This can be imposed when an employee calls in sick for the third time within a period of 6 months, or when he does not give sufficient reason for his absence. When a first day control is imposed, one has to report to the SZV doctor the same day one reports his illness. The SZV doctor will have to authorize sick leave.
Performance management Article 15 of the LMA is the legal basis for our system of performance management. It is further regulated by the Remuneration regulation56 (decree-egm) and by two manuals57 (decrees). Performance management is a way of managing the performance of the entire organization, both management and personnel. An important aspect of the system is that it gears towards achieving preset organizational and individual development objectives. Organizational objectives The government’s annual budget sets the organizational production and achievement objectives for each year. These are broken down to contributions per ministry and their respective departments and services. Within these departments and services these objectives can be further broken down to required contributions of each staff member. A second organizational objective is to work on our core values (see page B-5) by developing (strategic) competencies of employees. Individual objectives Subsequently individual goals are set to support these two organizational goals. 1. The employee’s individual production and achievement objectives are derived from the annual department plan, which in turn is derived from the annual budget. 2. Mastering or improving the individual competencies associated with one’s job, and strategic competencies associated with the core values of the organization. The HR cycle The HR cycle consists of three defining moments: 1. Planning interview: which sets the individual objective. It is important that these are SMART58. This planning session is a two-way conversation that marks the beginning of the cycle and, therefore, needs to take place in December, or January. 56
Bezoldigingsregeling ambtenaren
57
Human Resources Cycle for Employees and one for Managers
58
Specific, Measurable, Ambitious, Realistic, Time-bound.
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2. Midterm assessment: the objective here is to discuss progress. If the situation or the circumstances have changed, adjustments can be made to the planning. This is a two-way conversation which can be held several times during the cycle upon the employee’s or his manager’s request. At least one midterm assessment has to be done in the month of May. At least once every 2 years the midterm assessment also needs to address the employee’s personal development plan. 3. Final assessment: The objective here is to evaluate the achievements in this cycle. The final assessment is generally a one-way conversation in which the employee’s manager tells him how he did. This assessment needs to take place in November. There are only three possible final outcomes of the final assessment. 1. Poor performance: the objectives were not met due to shortcomings of the employee. As an immediate result the employee will not receive an increment in his salary scale in January. 2. Strong performance: the objectives were met. Or when objectives were not met this was not due to the employee’s performance. As an immediate result the employee will get an increment in his/her salary scale as of January. 3. Excellent performance: the objectives were exceeded due to exceptional performance of the employee. As an immediate result he will get an increment in salary scale as of January and will also receive a bonus. The bonus is an amount equal to 12 times the amount of his/her last increment. The HR cycle is mandatory for all employees and managers. Templates are available to record the results of the three defining moments in the cycle and management is continuously being trained in the use of this instrument. Next to immediate effects on one’s salary, all sorts of other decisions pertaining to employees depend on the outcome of employee assessments. These can be, but are not limited to, decisions about: - contract renewal; - promotion; - transfer to another position; - dismissal; - granting of study facilities; - mandatory training.
HR development In order to keep up with the ever changing circumstances and developing technology, training of staff is a must. The legal basis for providing funds for this purpose is found in the LMA59, the Remuneration Regulation60 and the policy document ‘Beleidsregels HRD 201361’ (decree). HRD consists of all activities geared towards increasing the competencies or knowledge of employees. The Government of St. Maarten’s policy is to invest in the development of its employees. 59
LMA art. 76.
60
Bezoldigingsregeling ambtenaren.
61
Beleidsregels HRD 2013
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Training and courses Employees may at times be requested to follow a specific training. Training can be mandatory or voluntary. If training is necessary to enable an employee to function better in his (new) function, it will be mandatory. Government makes a distinction between general training and job-specific training. General training is organized by P&O and the job-specific ones by the ministries themselves. Training can be mandatory or on the request of the employee as part of their Personal Development Plan (Persoonlijk Ontwikkelingsplan (POP), see the paragraph on Performance Management, section midterm evaluation). Mandatory training is funded by government for 100% POP-trainings for 75%. A personal development plan is an agreement with the department head pertaining to the employee’s future career plans within Government. It consists of training and studies that the employee should embark on to acquire the necessary competencies for future positions. The intention is that both employee and employer invest in this. If one has completed such a course or study successfully he can be reimbursed for 75% of the cost. The employee is required, however, to remain in service for a specified period. If an employee wants to start a study or training like this it is recommendable to consult with the department head to verify whether funds are available. If an employee cannot afford to pay for his course or study in advance, he can request Government to pay for this in advance. The request is made in the same manner as is done when requesting reimbursement. The necessary information about the course is provided, the type of diploma or certificate the employee intends to obtain, the cost, and a copy of his personal development plan. The department head adds his advice on how this training benefits the organization and reports on the availability of funds. If Government decides to grant a request for advance payment of an employee’s studies one of the terms of the agreement is that the employee has to repay the entire amount if he does not finish or pass the study within the required time. Study assignment The LMA62 allows for sending someone on a study assignment abroad. This can be done to follow a course, for an internship, etc. There are no specific guidelines for this, hence each case has to be reviewed and dealt with individually. A budget needs to be made pertaining to expected expenses, and funds must be available in the ‘job-specific-training-budget’ of the department / service or ministry.
Transfers A transfer means that one is placed in another position. If an employee wants to move to another position within Government he/she will have to apply for that position once it is vacant and advertised.
62
LMA art. 76
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However, a transfer can also be initiated by the Government organization. Reasons for this may stem from the need to be placed back into the organization after a long leave of absence, (medical) unsuitability for the present job, reorganization etc63. Generally, the solution for a Government initiated transfer is sought within the ministry where the employee works or worked last. If no fitting positions are available there, vacancies in other ministries will be considered as well. The employee is obliged to accept a fitting position64.
Disciplinary measures Taking disciplinary measures is regulated in the LMA65. Government’s many policies (ordinances and decrees) lay down both the rights and the obligations of employees. We speak of dereliction of duty if employees do not live up to their obligations. Dereliction of duty also includes violating regulations or doing or refraining from things that an employee is supposed to refrain from or should be doing under those circumstances. Dereliction of duty is subject to disciplinary measures. Depending on the severity of the dereliction, the disciplinary measure can have the form of a written warning, a monetary fine, withholding of salary, demotion, suspension, or dismissal from service. The department / service head, together with the SG, usually initiates a disciplinary measure by sending a report to the Minister via P&O. The reasons for taking disciplinary measures must be in writing and sufficiently explained. Before a final decision is taken to administer a disciplinary measure one has to have had the opportunity to explain his actions. This has to be done within 7 days after the notice of the intention of administering a disciplinary measure has been given.
Suspension Suspension can be applied in situations in which it is not considered a disciplinary measure. An employee is suspended by default when: 1. taken into (police) custody; 2. admitted into a mental institution. Suspension may be applied when: 3. an employee is being prosecuted for a crime; 4. an employee has been notified of the intent of disciplinary dismissal; 5. the relevant authority deems this necessary in the interest of the service. During suspension as in cases 1 and 3, one third of the employee’s salary is withheld for 6 weeks. After 6 weeks another amount or even the entire salary can be withheld. Once the employee has been cleared from any wrongdoing, the pay that was withheld will be reimbursed.
63
Her- en overplaatsingsbeleid 2012
64
LMA art. 50
65
LMA chapter 8.
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G Section
G: Dismissal The rules for dismissal are different for civil servants and employees on a contract. As stated before, the employment contract is regulated by the Civil Code and the appointment of a civil servant by the LMA.
Civil servants Besides dismissal being the ultimate disciplinary measure, civil servants can only be dismissed on a limited number of grounds. Dismissal is regulated by the LMA66. Only the Governor as the authority that is competent to hire the civil servant can fire him by decree. Following are the different grounds for dismissal. Dismissal upon own request When a civil servant wants to resign he has to give notice. The discharge is given at least one month and a maximum of 3 months, after receipt of the request. Temporary service Civil servants in temporary service for a specified term or on a trial period, are considered to be honorably discharged at the end of that term67. Civil servants in temporary service, for an unspecified term, can be honorable discharged if given proper notice. Notice is 3 months, if one has worked for more than 12 months. 2 months’ notice is required if one has worked between 6 and 12 months, and 1 month if one has worked for less than 6 months. Pension age dismissal Honorable discharge is also given at the age of 6068, which is the pensionable age for civil servants. For more details on pension, see section E, benefits. If Government wants to retain an employee who has reached the age of 60, this can only be done by means of an employment contract. Reorganization or downsizing Civil servants can be dismissed as a result of reorganization or downsizing69. Discharge for this reason requires proper notice. Notice is 3 months for civil servants who are in permanent service. Notice for 66
LMA art. 95 t/m 101
67
LMA art. 97
68
Landsverordening leeftijdsgrens ambtenaren (AB 2013, GT no 631)
69
LMA art. 99
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civil servants in temporary service is equal to the notice listed under ‘temporary service’. During this period Government has an obligation to see whether the employee can be placed elsewhere within government service. If this is not possible the civil servant is dismissed and is entitled to reduced pay (see section E under ‘reduced pay’). Other grounds Aside from the grounds listed above, a civil servant can also be dismissed on the following grounds: -
loss of a required prerequisite for his/her position unless that prerequisite was only required at the moment of appointment;
-
when placed under legal guardianship as a result of an irrevocable ruling by the courts;
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when arrested, as imposed by an irrevocable ruling by the courts, due to an inability or unwillingness to pay for one’s debts;
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an irrevocable conviction which leads to imprisonment, due to a criminal offence;
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permanent inability to fulfill one’s position as a result of illness or deficiency;
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incompetence or ineptness for the position other than on the grounds of a mental or physical deficiency (a medical examination must be taken before issuing dismissal);
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when a required diploma for the position has not been acquired within the specified time.
Termination of employment contracts Dismissal of employees on contract is regulated in the Civil Code. Unlike the LMA the Civil Code does not have a limited list of grounds for dismissal. In order to terminate an employment contract Government has to give one month’s notice and have a reasonable cause. The competent authority here is not the Governor, but the Minister. Considering the fact that (almost) all our policies are applied to civil servants and employees on contract in the same way, it is safe to conclude that reasonable causes to terminate an employment contract are the same as causes for which a civil servant would be dismissed.
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H Section
H: Legal procedures As stated before, St. Maarten is a state of Law. All policies in this handbook, once established by ordinance or decree, have the force of Law and apply to both civil servants and employees on contract. However, in certain matters there are differences between the two groups of employees caused by the fact that their employment is regulated by two different ordinances. The differences focus mainly on three aspects: the way that the employment starts, the way that it ends, and in legal proceedings when a judge is needed to resolve a conflict between employer and employee.
Personnel files Government has to keep a personnel file of all employees. Government has to guard this information as confidential and cannot publish or give this information to the public or to third parties. As an employee one is entitled to know what information is in his/her personnel file. He/she can request to review his/her file. However, Government has the right to withhold certain documents, that have to do with internal decision-making, from one’s file.
Objections and appeal Granting benefits or enforcing policies is typically done by decree. In the event that an employee does not agree with the decision laid down in a decree, he can object to the decree. If one does not agree with the decision on the objection, one can appeal this in court. For civil servants the decree is a ‘Landsbesluit’, for employees on contract this can be: a Ministerial Decree, a letter from the Minister, or an addendum to the contract. Objections The new art. 17 of the LMA grants civil servants the right to submit an objection to decrees, acts or refusals to decree by the relevant authority pertaining to themselves. Through their labor agreement, this right has also been extended to those on employment contracts. An objection is an internal procedure whereby a reconsideration of the decision is requested in writing70. The relevant authority is obligated to respond within a reasonable time. If no decision is taken upon the request within this reasonable time, this is, by law, considered equal to a fictitious denial of your request. Reasonable time is not defined in the RAR. As a rule of thumb 4 months is often regarded as sufficient time (which is similar to the definition of reasonable time in the Lvo Administratieve Rechtspraak), but in complicated cases Judges have allowed up to a year as reasonable.
70
The Minister of General Affairs issued a letter detailing how to file objections and requests, (brf 4726/14, June 2 2014)
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An objection must be submitted within 30 days after the decree has been given. Some additional rules for filing objections were regulated in the remuneration policy but are currently under review since the LMA was revised on this subject. A new decree with rules for filing and handling of objections is being drafted. In the meantime the Minister of general affairs issued a letter detailing how employees have to file their objections and other requests towards the relevant authority. Appeal The difference between a civil servant and the employee on contract becomes more apparent in the case of an appeal. Civil servants have to file their appeal by the Civil Servants Court (RAR) and employees on contract have to file their appeal by the Court of First Instance (Civil Code). Civil servants Civil servants can only file an appeal about the decision on their objection. Filing an appeal does not suspend the implementation of the decree. In order to be admissible, appeals have to be filed within 30 days after the decree has been given, and must be presented in writing. The court then sends a copy of the appeal to Government to give a response in writing. After appeal and response have been filed the court sets a date for a hearing. During the hearing both parties may further substantiate their arguments and respond to each other’s arguments. The Judge may also ask questions or clarifications on arguments and statements. The Judge then sets a date for handing down a verdict. Either party can appeal the verdict of the Court at the ‘Civil servants’ court of appeals, again within 30 days. There is no fee to file an appeal. Government typically will be represented by a lawyer. The employee may either represent himself or hire a lawyer to represent him at his own expense. In case he wins the dispute, the Judge may rule that he is also entitled to a standard fee as compensation for the cost of legal counsel. Employees on contract The legal proceedings are rather similar but some differences are evident. Employees on contract can file appeals for the same reasons as civil servants but have to do so at Court of First Instance within 30 days the decree has been given. The Court then sends a copy of the appeal to Government to give a response in writing. After appeal and response have been filed the Judge decides whether to schedule a date for a hearing (usually), or pass judgment based on the documents. During the hearing both parties may further substantiate their arguments and respond to each other’s arguments. The Judge may also ask questions or clarifications on arguments and statements. The Judge then sets a date for handing down a verdict. Either party can appeal the verdict at the Court of Appeal within 6 weeks. There are fees due when filing an appeal. Government typically will be represented by a lawyer. The employee may either represent himself or hire a lawyer to represent him at his own expense. The Judge may rule that the party which wins the dispute is also entitled to a standard fee as compensation for the cost of legal counsel.
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I
Section
I: Employee Participation In its role as employer, Government meets with (representatives of) employees to discuss its intentions to make changes in their legal position or existing policies. In St. Maarten this practice is regulated by ordinance71 and further detailed by decree72.
GOA The GOA is the official committee that reviews and discusses Governments’ proposals. The committee consequently renders its advice to Government. The committee consists of 7 members, including a chairperson, and 6 members from the unions. Presently both WICSU and WITU are accepted as unions in the committee. The chairperson and secretary are designated by the minister of General Affairs and the unions designate the members and their substitutes. The committee members are appointed by the Governor. The GOA is consulted before a final decision is made concerning the legal position of the employees or concerning policies which affect Government personnel. P&O, which is typically always involved in matters pertaining to the legal position of employees or to personnel policies, is the link between the Minister and the GOA. P&O initiates the process of asking GOA for advice and provides the committee with documentation and explanation on the why and how of its proposals. The committee is authorized to give its opinion and suggest amendments to proposals. This does not mean that the Minister needs the approval of GOA for implementation. If the minister decides not to accept suggestions by the GOA this decision needs to be motivated. GOA can also render unsolicited advice on matters concerning the legal position or personnel policies. Currently new legislation is being drafted pertaining employee participation.
71
Landsverordening Georganiseerd Overleg in Ambtenarenzaken St. Maarten (AB 2013, GT no 6)
72
Brief aan GOA dd 6 juli 2007, no 3011-07
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J Section
J: Index A Allowances .......................................................E-1 APNA ...............................................................E-8 Appeal for civil servants .................................. H-2 Appeal for employees on contract .................... H-2 Appointment .................................................... C-2 B Benefits ............................................................E-1 Business Trip expenses .....................................E-2 C Child allowance................................................E-2 Complaints ...................................................... D-2 Confidentiality ................................................. D-2 Confidentiality plegde ...................................... D-1 core responsibilities..........................................B-2 core tasks .........................................................B-2 Core values ......................................................B-5 D Deceased benefits ........................................... E-10 Declaration of good conduct ............................ C-2 Dental care ......................................................E-7 Dental rehabilitation ........................................E-7 Disability pension .............................................E-8 Disciplinary measures ......................................F-7 Dismissal......................................................... G-1 Dismissal on own request ................................ G-2 Dismissal upon own request............................. G-1 E Employee Participation .....................................I-1 Excellent performance ......................................F-5 Extraordinary leave ..........................................E-5 F Filling-in allowance .........................................E-2 Final assessment: .............................................F-5 Functional age dismissal ................................. G-1 G
Guarantee Card............................................... E-6 H Health care administration .............................. E-6 Health care package ........................................ E-7 Health Insurance ............................................. E-6 Healthcare premium ........................................ E-6 Holidays .......................................................... F-2 HR development .............................................. F-5 Human Resource Management......................... F-1 I Insurance coverage.......................................... E-6 Intake policy .................................................... C-1 Intake process.................................................. C-1 Integrity........................................................... D-1 Integrity breaches ............................................ D-3 Integrity confidant ........................................... D-3 Internal vacancies ........................................... C-2 J jubilee ............................................................. E-2 L Labor agreement ............................................. C-2 Leave of absence ............................................. E-4 Legal procedures ............................................. H-1 Long-term illness ............................................. F-3 M Medical examination ....................................... C-2 Midterm assessment ......................................... F-5 Misconduct ...................................................... D-1 Moving expenses.............................................. C-3 O Oath and Pledge .............................................. D-1 Objections ....................................................... H-1 Old age pension ............................................... E-8 organisatieverordening .................................... B-1 Organizational culture ..................................... B-5 Orphans pension.............................................. E-8 Overtime and time-back ................................... F-2
Gifts ................................................................ D-2 GOA ..................................................................I-1
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P Particular task allowance .................................E-2 Pension allowance ............................................E-9 Pension fund.....................................................E-7 Performance management ................................F-4 Periodic increments ..........................................E-1 Personal leave .......................................... E-5, F-1 Personnel files ................................................. H-1 Planning session...............................................F-4 Poor performance.............................................F-5 Pregnancy and maternity leave .........................E-4 R Recruitment ..................................................... C-1 Reduced pay .....................................................E-9 Remuneration ...................................................E-1 Reorganization or downsizing .......................... G-1 Repatriation .................................................... C-3 Reporting illness...............................................F-3 Reporting of illness while abroad ......................F-3 S Salary Advance.................................................E-3 Salary scale ......................................................E-1 Selection.......................................................... C-2 Sick leave .........................................................E-5 Sick leave policy ...............................................F-2 sick leave policy abuse......................................F-4 Side Jobs ......................................................... D-1
2
Side jobs and business activities ....................... D-2 SLA ................................................................. B-2 Strategic competencies..................................... B-6 Strong performance ......................................... F-5 Study assignment ............................................. F-6 Suspension....................................................... F-7 SZV ................................................................. F-3 T Temporary appointment ................................... C-2 Termination of employment contracts............... G-2 The HR cycle ................................................... F-4 Training and courses ....................................... F-6 Transfers ......................................................... F-6 Trial period ..................................................... C-2 U Use of government property ............................. D-2 V Vacation .......................................................... E-3 Vacation allowance ......................................... E-4 W WICSU ............................................................. I-1 Widower’s pension .......................................... E-8 WITU ............................................................... I-1 workforce ........................................................ B-1 Working Hours ................................................ F-1
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