Observation (CEACR) - adopted 2021, published 110th ILC session (2022)

Right to Organise and Collective Bargaining Convention, 1949 (No. 98) - Mauritius (Ratification: 1969)

The Committee notes the observations made by the Confederation of Free Trade Unions and the State and Other Employees Federation, dated 26 August 2021, concerning matters examined in the present comment.

Legislative developments. In its last comment, the Committee noted the Government’s indication that a revision of the Employment Rights Act (2008) and the Employment Relations Act 2008 (ERA 2008) was under way. The Committee takes note of the Government’s indication that: (i) the Employment Rights Act (2008) was replaced by the Worker’s Rights Act 2019 (WRA) (Act No. 20) and (ii) the ERA 2008 was amended by the Employment Relations (Amendment) Act 2019 (Act No. 21).

In addition, the Committee welcomes the establishment of the National Tripartite Council provided for under section 28(j) of the ERA 2008, as amended in 2019, which aims at promoting social dialogue and consensus building on labour, industrial relations or socio-economic issues of national importance and other related labour and industrial relations issues. Observing that the Council shall make recommendations to the Government on issues relating, inter alia, to the review of the operation and enforcement of the labour legislation, the Committee requests the Government to provide information on the recommendations made by the Council in relation to matters covered by the Convention, including as to giving effect to the Committee’s comments.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its last comment, the Committee requested the Government to continue to provide statistical data on the number of complaints of anti-union discrimination, their outcome and the number and nature of sanctions imposed or remedies awarded. It also requested it to pursue its efforts, in particular in the export processing zones (EPZs), to ensure that all allegations of anti-union discrimination give rise to expeditious investigations The Committee takes note of the Government’s indication that Act No. 21 introduced the following amendments to the ERA to enhance protection of workers against acts of anti-union discrimination:

– new subsection 31(1)(b)(iii) provides that no person shall discriminate against, victimize or otherwise prejudice a worker or an accredited workplace representative on any employment issue on the ground of his trade union activities;

– new subsection (1A) provides for stringent conditions to curb any decision to terminate workers’ employment in relation to trade union membership or activities; and

– in section 2 of the ERA, the definition of labour dispute has been broadened to include reinstatement of a worker where the employment is terminated on the grounds specified in section 64(1A) (above-mentioned).

The Committee takes note with interest of the abovementioned measures introduced by Act No. 21 to the ERA which complement the protection against acts of anti-union discrimination already provided for in the legislation. The Committee requests the Government to indicate the impact in practice of the legislative amendments and to provide statistical data in that regard, including on the number of complaints of anti-union discrimination, including anti-union dismissals, brought before the competent authorities (labour inspectorate and judicial bodies), their outcome and the number and nature of sanctions imposed or remedies awarded.

In its last comment, the Committee invited the Government to engage in a dialogue with the national social partners with a view to identifying possible adjustments to improve the rapidity and efficiency of the conciliation proceedings. The Committee takes note that the Government indicates that section 69 of the ERA, as amended in 2019, provides for a timeframe for the expeditious resolution of disputes involving anti-union discrimination: 45 days at the Commission for Conciliation and Mediation (CCM) and, if no agreement is reached, the Employment Relations Tribunal (ERT) (an arbitration tribunal) must make an award within 90 days. The Committee also observes that section 87(2) of the ERA, as amended in 2019, has doubled the number of the CCM members and expresses the firm hope that this will contribute to improving the rapidity and efficiency of the conciliation procedures.

Having taken note of allegations made by social partners concerning the excessive length of judicial proceedings in rights disputes (six to seven years), the Committee had requested the Government to take measures with a view to accelerating relevant judicial proceedings and to provide statistical data on their average duration. Regretting that no information was provided in this regard, the Committee requests the Government once again to take measures with a view to accelerating relevant judicial proceedings and to provide statistical data on their average duration, including with respect to cases that may arise in EPZs.

Article 4. Promotion of collective bargaining. The Committee takes note of the Government’s indication that Act No. 21 introduced the following amendments to the ERA concerning collective bargaining:

– Section 51(1)–(4) of the ERA was amended to facilitate the process of collective bargaining by drawing up a procedure agreement in view of signing a collective agreement. According to the Government, this will further encourage the union and management to proceed with the negotiations keeping abreast good faith at all times with a view to reaching a collective agreement.

– Section 88(4)(e) of the ERA was amended to widen the scope of the CCM with the aim at reinforcing the mutual trust between employer and employees.

– Section 69 of the ERA was amended to promote the settlement of labour disputes. Section 69(3) has been specifically introduced to make the recommendation of the President of the CCM binding should both parties to a labour dispute agree to confer upon the President such power. The Government indicates that this provision was added to provide a speedy solution to break the deadlock between the parties instead of having recourse to the Tribunal, thus saving time, which is crucial in industrial matter.

– Section 69(9)(b) was amended to enable both the union or the employer to request the CCM to refer a labour dispute to the ERT (arbitration tribunal) once the conciliation attempt has failed. The Government indicates that prior to the amendment; the CCM could only refer to the ERT cases brought by an individual worker. The Committee observes that, while section 63 of the ERA provides that the parties may jointly refer a dispute for voluntary arbitration, section 69(9)(b), as amended, concerns the referral of a dispute to an arbitration tribunal at the request of one of the parties. Recalling that compulsory arbitration in the case that the parties have not reached agreement is generally contrary to the principles of collective bargaining, the Committee requests the Government to clarify whether the revised section 69(9)(b) does allow for compulsory arbitration at the request of one party.

– Section 87(2) was amended to reinforce the human resource of the CCM. The Committee recalls that in its previous comments it had noted allegations in relation to the lack of human resources at the CCM. As mentioned in the present comment under Article 1 of the Convention, it appreciates that the revised section 87(2) has doubled the number of its members. The Committee regrets to note, however, that the revised section 87(2) has removed the requirement for the Minister to hold consultations with the most representative organizations of workers and employers in relation to the appointment of conciliators or mediators. The Committee requests the Government to clarify the rationale behind the removal of consultations to social partners under this section.

The Committee takes due note of the above-mentioned amendments and expresses the hope that, as indicated by the Government, they will contribute to facilitating collective bargaining. The Committee requests the Government to indicate the impact of the legislative amendments in practice.

In its previous comment, the Committee expressed its expectation that the Government would continue to carry out and strengthen inspections and sensitization activities with respect to collective bargaining. The Committee notes the Government’s indication that: (i) 132 sensitization activities carried out between 2017 and 2021 benefited 2,660 workers in the EPZ/textile sector; and (ii) 161 inspection visits carried out in the EPZ sector covered 21,273 local workers and 1,284 inspection visits in undertakings in the manufacturing sector covered 231,793 migrant workers. The Committee notes that 64 collective agreements have been registered with the Ministry of Labour from 2017 to 2020 and that neither of them pertains to the EPZ sector. The Committee also notes the Government’s indication that the COVID-19 pandemic has somehow affected the activities of the Ministry. The Committee takes note of the information provided and requests the Government, in consultation with the social partners, to strengthen these activities, in particular in the EPZs, textile sector, sugar industry, manufacturing sector and other sectors employing migrant workers. It also requests the Government to continue to supply statistics on the functioning of collective bargaining in practice (number of collective agreements concluded in the private sector, especially in EPZs; branches and number of workers covered).

Interference in collective bargaining. In its previous comment the Committee expressed the hope that the Government would continue to refrain from unduly interfering in and give priority to collective bargaining of a voluntary nature as the means of determining terms and conditions of employment in the sugar sector in particular and in the private sector in general. The Committee also requested the Government to provide its comments on observations made by Business Mauritius that the Remuneration Orders of the National Remuneration Board (NRB) were so elaborated and prescriptive that they acted as a disincentive to collective bargaining. The Committee notes that the Government states that: (i) as from 24 October 2019, the core conditions of employment of workers under Remuneration Orders (ROs) have been harmonized with the adoption of the WRA; (ii) the ROs have been repealed and replaced by 32 Remuneration Regulations, which provide for conditions of employment specific to the sector; (iii) a National Minimum Wage (NMW) was introduced as from January 2018 and was last reviewed in January 2020 and (iv) payments of additional remuneration continue to be made following recommendations by a national tripartite forum, chaired by the Prime Minister. The Committee expresses the firm hope that these developments will contribute to prioritizing bipartite collective bargaining of a voluntary nature as the means of determining terms and conditions of employment in the private sector in general.

Article 6. Collective bargaining in the public sector. In its previous comments, the Committee invited the Government, together with the professional organizations concerned, to study ways in which the current system could be developed to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State. The Committee notes that the Government states that: (i) salary determination in the private sector is completely different than in the public sector; (ii) in the private sector, the wage fixing institution establishes a floor wage and this eventually gives room to collective bargaining; and (iii) this system cannot be imported to the public sector as the Pay Research Bureau (PRB) establishes a ceiling wage for public sector employees. The Committee notes that the Confederation of Free Trade Unions and the State and Other Employees Federation precisely highlight that collective bargaining does not exist in the public service since the setting up of the PRB. The Committee takes note that the Government states that with a view to promoting social dialogue in the public service, an Employment Relations Committee (ERC) is being set up by the Ministry of Public Service, Administrative and Institutional Reforms comprising representatives from Management and the four most representative federations of the Civil Service. Such Committee would, inter alia, consider any matter relating to or arising out of the course of employment of public officers and would make recommendation to appropriate instances. The draft regulation has been finalized after consultations with different stakeholders and is presently at the level of the Attorney-General’s Office for vetting. The Committee welcomes these developments, which aim at promoting social dialogue in the public service. It requests the Government to transmit a copy of the ERC once it has been adopted. The Committee must recall, however, that, pursuant to Article 6 of the Convention, all public servants, other than those engaged in the administration of the State, should enjoy collective bargaining rights, and that, under the Convention, the establishment of simple consultation procedures for public servants who are not engaged in the administration of the State (such as employees in public enterprises, employees in municipal services, public sector teachers, etc.), instead of real collective bargaining procedures, is not sufficient. The Committee therefore invites once again the Government, together with the professional organizations concerned, to take the necessary measures to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State.

The Committee reminds the Government that it may avail itself of technical assistance from the Office with respect to all issues raised in its present comments.