WIFOL wins case in ongoing Simpson Bay Resort struggle

April 03, 2012 10:55 AM

PHILIPSBURG - Worker's Institute for Organised Labour (WIFOL) won an important legal battle Monday in its ongoing struggle for Simpson Bay Resort Management Company N.V. (SBRMC) and Royal Resorts Management Company Ltd. (RR) to adhere to all stipulations of the collective labour agreement (CLA) with former Pelican Resort Club workers.

Judge René van Veen ordered Simpson Bay Resort to meet its obligations as an employer towards WIFOL members, as stipulated in the CLAs for line personnel, supervisors, middle management and administrative personnel of the former Pelican Resort Club.

The judge ordered SBRMC to pay WIFOL members' salaries retroactively and according to the CLAs, and to (re)employ workers in their respective jobs until the moment it has been established irrevocably that SBRMC is no longer legally obligated to meet the stipulations in this verdict.

The judge in the Court of First Instance attached a penalty of US $5,000 per day in case of non-compliance, with a maximum of $1million. Simpson Bay Resort also was ordered to pay the union $50,000 in damages, to be increased by statutory interest retroactive to December 17, 2010.

The resort was ordered to pay for the legal costs of the procedures, which were set at NAf. 1,900.

This ruling in the so-called court case on the merits followed after the Court of First Instance had handed the union victory twice during summary proceedings. However, those were overturned by the Appeals Court.

Monday's ruling does not mean the case is closed. Attorney-at-law Jairo Bloem stated on behalf of SBRMC and RR that his clients would be looking into the possibilities for a new appeal.

"SBRMC is disappointed in the verdict that was rendered by the Court of First Instance on April 2. SBRMC is looking into appeal possibilities. Its biggest priority right now is to inform its membership on the outcome of this verdict and the possible consequences thereof on the services that are being rendered at the resort and, as such, on the [resort's, ed.] operations," Bloem stated in an invited comment.

After the auction of Pelican Resort Club in December 2010, a conflict ensued about the labour conditions of 182 employees. New owner SBRMC did not consider itself obligated to adhere to the Pelican CLA, because it maintained that it was not unified with the former Pelican Resort Club Management Company N.V. (PRCMC) and as such not responsible for the workers' labour arrangements and conditions as agreed with PRCMC.

WIFOL lawyers Maarten Le Poole and Wim van Sambeek, both of whom were elated about Monday's ruling, had stated the resort was playing games with workers, who had been deprived of work and income.

The former Pelican Resort went bankrupt in 1996, after which approximately 1,200 timeshare owners, united in the Tenants Association Pelican Resort Club (TAPRC), bought the resort and continued its operations. To this end, two N.V.s were established: Pelican Resort Club, The Owner Company PRCOC to manage the real estate, and PRCMC to manage activities.

A management agreement was closed with Royal Resorts (RR) Management Company Ltd. in 1997 to manage the resort's daily operations. Quantum Investment Trust Ltd. (QIT) in Belize provided the resort with a loan to facilitate expansion with the adjacent Pelican Marina Residences. When PRCOC was no longer able to meet its financial obligations, QIT made use of its right to auction the resort on December 16, 2010, which it then procured.

One day after the sale, three new companies were established: Simpson Bay Resort Holding Company B.V. (SBRHC), SBRMC and Simpson Bay Resort Owner Company B.V. (SBROC). The resort's operations landed in the hands of SBRMC, in cooperation with Royal Resorts Pelican Resort Club and Pelican Marina Residences. SBRMC is managed by Royal Resorts and Jules James.

SBRMC informed WIFOL, which represented 182 of the approximately 200 employees, on December 17, 2010, that it was to operate the resort and that it would offer PRCMC's employees six-month contracts as of the moment that SBROC had become the real estate's owner. WIFOL turned down this request. After mediation and intervention by politicians had led to nothing, an almost inextricable string of court cases and subsequent rulings followed.

According to St. Maarten law, someone who takes over an existing company is not obligated to take over all employees. He is also free to take over workers under new labour agreements and conditions. However, in case the employer is handing over his company to a third party and workers continue working for this new owner "without contradiction and on the same footing," the legal relationship between employer and employee is held to be implicitly continued by the new employer.

Judge van Veen stated in his ruling that such was the case between the resort and the WIFOL workers, who remained on the job for two months until Pelican Resort was closed by the new owners in January 2011.

Judge van Veen arrived at the conclusion that SBRMC had taken over PRCMC's company on December 17, 2010, and had been operating the resort together with Royal Resorts in the same way as PRCMC and Royal Resorts had done previously.

"The employees who continued doing their jobs have been working for SBRMC, and SBRMC, as PRCMC's legal successor, is therefore held to reward the employees in compliance with the prevailing CLA obligations of that time," the Judge stated.

"Already, given its name, SBRMC should be considered the successor-employer and not Royal Resorts. Royal Resorts has never been the formal employer," he concluded.

(The Daily Herald)

In this case Workers Institute for Organised Labour (WIFOL) is being represented by Maarten Le Poole and Wim van Sambeek of HBN Law. Simpson Bay Resort Management Company (SBRMC) is represented by attorney Jairo Bloem of Bloem & Associates.