CMNT_TITLE

Migration for Employment Convention (Revised), 1949 (No. 97) - Mauritius (RATIFICATION: 1969)

Previous comment

The Committee notes the observations of the Confederation of Public and Private Sector Workers (CTSPP) communicated with the Government’s report, as well as the corresponding reply of the Government.

Article 1 de la Convention. Migration flows and general agreements. The Committee notes that, in its reports, the Government indicates that: (1) the outward migration service provided by the Ministry of Labour, Human Resource Development and Training (MLHRDT) has been revamped over the last years; (2) the activities of such service have focused on recruitment projects with Canadian employers, with the Direction des Services d’ Immigration (DSI) of the Ministry of Immigration of Quebec as a main partner; and (3) the first edition of the “Journées Quebec Maurice” was organized by the DSI in partnership with the MLHRDT in December 2020. The Government adds that: (1) as of 30 June 2023, there were a total of 625 Mauritians placed in Quebec; (2) the sectors and types of jobs on offer were mainly in the Information and Communication Technology (ICT) sector, the manufacturing industry, food processing, health care and hospitality sector; and (3) the demand from Canadian employers for recruitment of Mauritians in these sectors is continuously increasing. The Committee notes from the statistical information provided by the Government that there is an increasing flow of emigrants to Canada over the years (36 workers in 2020, 56 in 2021, and 248 in 2022) with highest number in 2023 (265 workers, out of which 8 women workers). It also observes that, as of end of May 2023, a total of 36,942 foreigners have obtained valid work permits in Mauritius. All migrant workers with a work permit are employed on a fixed-term contract, hence on a temporary basis. Moreover, the Committee notes that 5,695 migrant workers were recruited for the period of January-June 2023, mainly coming from Bangladesh, China and India. The Committee asks the Government to continue to provide information on: (i) migration flows, in particular statistical data, disaggregated by sex, nationality and economic sectors; and (ii) any agreements on migration concluded with other governments.

Article 2. Adequate and free services for migrant workers. In response to the Committee’s previous request, the Government indicates that the Special Migrant Workers’ Unit (SMWU) of the MLHRDT is in charge of: (1) verifying and vetting contracts of employment of prospective migrant workers prior to their arrival to Mauritius; (2) carrying out inspections at workplaces to ensure that employers are complying with prevailing labour legislation and to ensure that the terms and conditions of employment are being complied with the vetted contract of employment and are also not less favourable than those of the local counterparts; (3) sensitizing migrant workers on issues related to the aspect of human trafficking; and (4) registering complaints and handling grievances from migrant workers, as well as initiating Court proceedings action against defaulting employers. Services are provided in English, French and Hindi. The Government also indicates that in 2022, 208 training sessions were provided by the SMWU. The Committee notes this information. However, it appears that the mandate of the SMWU, as described by the Government, is rather to look into the terms and conditions of employment of migrant workers in Mauritius and to ensure that their fundamental rights are being respected, than to provide emigrants and immigrants with accurate information. In this regard, the Committee wishes to recall that, for prospective migrants to be able to make a well-founded decision on whether to leave their home countries, they should have access to reliable and unbiased information on the formalities which must be completed, as well on the conditions of life and work which await them. Member States are therefore under an obligation either to provide or fund the provision of free information or other assistance to migrant workers or to ensure the existence of such services, and to monitor them and, where necessary, intervene to supplement them (1999 General Survey on Migrant Workers, paragraphs 190–213). The Committee requests the Government to provide further details on the specific content of the information provided by the Special Migrant Workers Unit (SMWU) to prospective workers seeking employment abroad and to migrant workers coming to Mauritius, for example along the lines of Part III of the Migration for Employment Recommendation (Revised), 1949 (No.86), including any specific services directed towards female migrants.

Article 3. Measures to combat misleading propaganda relating to emigration and immigration. Private employment agencies. The Government indicates that: (1) cases of illegal recruitment and/or swindling reported to or detected by the Ministry, are referred to the Police; (2) in 2017 one case of cancellation of a license was reported; (3) Officers of the National Employment Department (NED) undertook 63 inspection visits of private recruitment agencies in 2022 and 20 for the period January–May 2023; and (4) awareness campaigns are being conducted by different divisions of the MLHRDT through media on fraudulent private recruitment agencies and on various provisions of the labour and occupational safety and health laws. The Committee asks the Government to continue to provide information on the measures taken or envisaged to combat effectively misleading propaganda by private employment agencies, in light of the recent adoption of the Private Recruitment Agencies Act. It also asks the Government to indicate the type of assistance provided to migrant workers who have been victims of misleading propaganda.

Article 5. Entry requirements and medical examination. The Committee notes with interest that the Immigration Act No.13 of 1970 was repealed and replaced by the Immigration Act No.14 of 2022 (IA). It further notes that, although section 5(1)(a) and (b) were removed, section 5(1)(a) of the 2022 IA still restricts the entry/admission to migrant workers suffering from an infectious, a contagious or a communicable disease. The Committee recalls that refusal of entry or repatriation on the grounds that the worker concerned is suffering from an infection or illness of any kind which has no effect on the task for which the worker has been recruited, constitutes an unacceptable form of discrimination (see 2016 General Survey on Promoting fair migration, paragraph 254). The Committee also notes that pursuant to section 22(3) of the IA, immigration officers may order any person who seeks admission to Mauritius to undergo a medical examination. The Committee notes the Government’s indication that, a worker’s medical certificate is also a prerequisite to issue a work permit prior to his/her arrival in Mauritius, but that this does not apply to the application and/or issuance of a residence permit. The medical tests are done in the country of origin and submitted for vetting at the Ministry of Health and Wellness. If there is any health issue that is treatable, the migrant worker is requested to seek treatment in his country and submit a report to the Ministry of Health and Wellness in Mauritius. A Provisional Medical Clearance is granted upon receipt of a report from the treating doctor in the country of origin. The Committee nonetheless observes that medical clearance is not granted to a migrant worker who is HIV Positive. The Committee wishes to refer to Paragraphs 25 and 28 of the HIV and AIDS Recommendation, 2010 (No. 200), according to which: (1) “HIV testing or other forms of screening for HIV should not be required of workers, including migrant workers, jobseekers and job applicants”, and (2) “those seeking to migrate for employment, should not be required to disclose HIV-related information and be excluded from migration by countries of origin, of transit or of destination on the basis of their real or perceived HIV status” (2016 General Survey, paragraph 252). The Committee asks the Government to provide information on: (i) the application in practice of section 5(1)(a) of the Immigration Act (2022),indicating the procedure followed to assess that a worker’s infection/disease can affect the task for which he/she has been recruited to refuse the entry or repatriation; and (ii) how it is ensured that medical examinations do not include compulsory HIV testing.

Article 6(1)(a). Equality of treatment. Conditions of work. The Committee takes note of the observations made by the Confederation of Public and Private Sector Workers (CTSP) whereby: (1) migrant workers are often excluded from wage structures in enterprises and only benefit from the wages agreed; (2) they are not encouraged to join trade unions where these exist, and are often excluded from collective bargaining agreement, even when they form part of the same bargaining unit; (3) they do not benefit from monthly portable retirement gratuity fund (PRGF) or vacation leaves in Remuneration Orders; (4) migrant workers are deprived of justice because no cases involving a migrant worker has ever reached the Industrial Court, and (5) in practice, migrant workers are usually deported by their employer or the Passport and Immigration Office before their complaints are heard at the Industrial Court. In conclusion, the CTSP states that most of the above observations have been supported by the Human Rights Commission since 2021. In its response, the Government recalls that employers are requested to comply with prevailing legislation or terms of the employment contract of migrant workers, and to pay within a reasonable delay all outstanding dues, including wage re-adjustments and arrears. In case of non-compliance, the matter is referred to the Industrial Court. However, as per its records, most of the cases have been settled at the level of the MLHRDT. The Government indicates that a meeting was held with the CSTP to clarify certain questions, for example : (1) some cases have been referred to the Industrial Court (for example, Andre E.R. v. Sotravic Ltee 2022 IND 43 – CN IND 43) ; (2) sometimes, migrant workers are not eligible to vacation leave as, by the time they would be eligible to such leave, their fixed-term contract has expired and they have returned to their home country; (3) Mauritius has a free health care system and migrant workers have the same kind of treatment as their local counterparts with regards to their health issues; and (4) affiliating to a trade union is a free choice to be exerted by any worker and can in no manner be compelled to do so. The Government adds that it is the responsibility and duty of any trade union to canvass and encourage migrant workers to become members and to ensure that they are eligible to any protection and benefit negotiated under a collective agreement. The Committee takes note of the Government response to the Trade Union observations.

Regarding trade union rights, the Committee refers to its observations published in 2022 under the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) and the Right to Organize and Collective Bargaining Convention, 1949 (No.98). In relation to access to justice, and law enforcement, the Committee refers to paragraphs 462–72 of its 2016 General Survey and it wishes to recall that migrant workers in a regular situation should enjoy a treatment no less favourable than that applied to national workers in the country. Equality and anti-discrimination legislation is only effective if the fear of reprisals or negative consequences does not deter its use by workers. This is particularly relevant for migrant workers, who may fear that lodging a complaint about their employer will lead to the termination of their employment which, in turn, could lead to a revocation of their right to reside in the country of destination. The Committee has, for example, noted the low number of complaints submitted to a specialized equality body by foreigners relative to the number of foreigners in the country, and the possible difficulties for them in claiming their rights in the field of employment. The vulnerability of migrant workers in general means that they may not always be in a position to take the initiative to secure respect for the relevant legislation due to lack of awareness or fear of reprisals. Accordingly, mechanisms under which independent and institutionalized entities may take the initiative in investigating violations and enforcing the application of the legislation, or which are designed with explicit regard to the specificities of the situation of migrant workers, may usefully supplement normal procedures. The Committee asks the Government to continue to provide information on: (i) the inspection visits carried out by the officers of the SMWU, indicating the number and nature of violations detected, in particular with respect to equality of treatment in the areas covered by the Convention, the sanctions imposed and the remedies granted; and (ii) the number and nature of complaints submitted by migrant workers to the SMWU. It also asks the Government to step up its efforts to promote awareness of workers and their organizations on the different means of redress available to migrant workers victims of abusive conditions of work.

Article 6(1)(b). Social security. The Government indicates that contribution to the National Pension Fund (NPF) has ceased following the enactment of the Social Contribution and Social Benefits Act, Act 14 of 2021. Currently, migrant workers who obtained permanent residency contribute to the General Social Contribution and are equally entitled to all benefits granted to Mauritian workers under the labour laws as well as social protection from the Ministry of Social Integration, Social Security and National Solidarity. The Committee asks the Government to provide information on the social security protection afforded to temporary migrant workers during their stay in the country. It also refers the Government to its observation published in 2022 under the Workmen’s Compensation (Agriculture) Convention, 1921 (No.12), the Workmen’s Compensation (Accidents) Convention, 1921 (No.17), and the Equality of Treatment (Accident Compensation) Convention, 1925 (No.19).

Article 8. Maintenance of residence in the event of incapacity for work. The Government indicates that migrant workers who reside on a permanent basis in Mauritius enjoy the same rights as nationals. The Committee asks the Government to confirm the right of migrant workers admitted on a permanent basis to maintain their residence in the country, in the event of incapacity for work.

Article 9. Transfer of earnings. The Committee recalls that the bilateral agreement concluded between Mauritius and China does not include any provisions prohibiting the practice of transferring the migrant workers’ wages to their country of origin, and that it had requested information on the practical application of section 4 of this agreement. The Government states that that there are no limits on the transfer abroad of the earnings and savings of migrant workers and that no cases of violation have been detected. The Committee recalls once again that migrant workers may, in practice, lack the ability to raise concerns about their working and living conditions, due to their perception that enforcing rights may affect residence rights. Please continue providing information on the practical application of section 4 of the bilateral agreement (labour inspection services shall ensure that the terms and conditions of employment of Chinese workers are respected and their rights and interests protected), indicating the number and nature of violations detected by labour inspectors, the sanctions imposed and the remedies granted.

Enforcement. The Government provides information on the number of inspections, including enquiries, carried out by the officers of the SMWU for the period May 2017 to June 2023 (665 inspections in 2022 and 381 between January and June 2023). The Government also indicates that the statistics on the complaints dealt with by the SMWU show that between 2020 and 2023 nearly 10 per cent of such complaints concerned reduced or non-payment of wages (33 cases in 2022, 19 cases between January and June 2023) and that there was one case of violence at work. The Committee notes the corresponding amount of money recovered on behalf of migrant workers for the year 2022: Rupees 99,960,000 (US$2,260). The Committee asks the Government: (i) to continue to provide information on the enforcement activities, especially those carried out by the Special Migrant Workers’ Unit and the labour inspection services relevant to the application of the Convention; and (ii) to indicate whether courts or other tribunals have issued decisions involving questions relating to the application of the Convention, and if so, provide summaries of these decisions.