Demande directe (CEACR) - adoptée 2015, publiée 105ème session CIT (2016)

Convention (n° 189) sur les travailleuses et travailleurs domestiques, 2011 - Maurice (Ratification: 2012)

Article 3(2)(a) of the Convention. Freedom of association and collective bargaining. The Committee notes the detailed information contained in the Government’s first report on the application of the Convention. The Government indicates that article 13(1) of the Constitution of Mauritius guarantees that no person shall be hindered in the enjoyment of his/her freedom of assembly and association, his/her right to assemble freely and associate with other persons and, in particular, to form or belong to, trade unions or other associations for the protection of his/her interests. In this respect the Government refers to section 29 of the Employment Relations Act 2008 (EReA) (Act No. 32) which stipulates, inter alia, that every worker shall have the right to be a member of a trade union; to take part, outside working hours or with the consent of the employer within working hours, in the lawful activities of a trade union of which he/she is a member; and to seek, subject to the rules of the trade union of which he/she is a member, appointment or election as an officer of that trade union. The Committee refers to its observation of 2015 on the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), in which it requested the Government to provide information on measures taken or envisaged to ensure that migrant workers may effectively exercise in practice the right to establish and join organizations of their own choosing. In this context, the Committee requests the Government to provide specific information on how adequate representation of domestic workers in social dialogue is being ensured.

Article 3(2)(d). Elimination of discrimination in respect of employment and occupation. The Committee notes the Government’s indication that protection of workers, including domestic workers, against discrimination, apart from being enshrined in section 16 of the Constitution, is specifically provided for in sections 4 and 29 of the Employment Rights Act 2008 (ERiA), and the EReA respectively. The Committee, however, refers to its 2014 comments on the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), in which it noted that, pursuant to section 13(5)(c) of the Equal Opportunities Act (EOA), workers providing domestic or personal services in or in relation to a person’s home are excluded from the protection of discrimination in respect to access to employment. The Committee requests the Government to refer to its comments made under the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), and trusts that the Government will provide the necessary measures in this context.

Article 7. Terms and conditions of employment. The Committee notes the model of a written contract submitted by the Government. (Second Schedule of the Government Notice No. 159 of 2013 enacted under the Employment Rights Act). However, it notes that there are no provisions in this model contract on paid annual leave, daily and weekly rest periods, provision of food and accommodation, period of probation or trial periods, nor terms and conditions relating to the termination of employment, including any period of notice. The Committee requests the Government to provide information on the measures taken to ensure that domestic workers are informed of their terms and conditions of employment and in particular of the terms listed under Article 7 of the Convention.

Article 8(1)–(3). Migrant workers. The Committee notes the Government’s indication that all migrant workers enjoy the same terms and conditions of employment as those laid down for local workers under national legislation. The contract of employment of a migrant worker, prior to arrival in Mauritius, is examined and vetted by the Special Migrant Workers’ Unit (SMWU) of the Ministry of Labour, Industrial Relations and Employment to ensure that it contains no abusive clauses and that it is in full conformity with the prevailing labour legislation. The Committee notes the Government’s information on the bilateral agreement signed on 24 January 2005 with China as well as other bilateral agreements with other countries, on labour service cooperation with a view to strengthening the economic and trade cooperation between countries of origin of migrant workers as well as with countries of destination of Mauritian migrant workers ensuring that the rights of these workers are protected. In this regard, the Committee requests the Government to provide further information on the extent to which Mauritian domestic workers going abroad are protected under such agreements, for instance, by providing them with a written job offer or contract of employment that is enforceable in the country in which the work is to be performed, addressing the terms and conditions of employment referred to in Article 7, prior to crossing national borders. It also asks the Government to provide a copy of these bilateral agreements.

Article 9(c). Keeping possession of travel and identity documents. The Committee notes that the Government provides no information on this point. The Committee therefore requests the Government to provide information on how effect is given to this provision of the Convention.

Article 10(3). Equal treatment between domestic workers and workers generally on working time. Stand by. The Committee notes that the applicable legislation does not appear to include provisions on stand by and the Government provides no information on this point. While recalling that when domestic workers are not free to dispose of their time as they please and remain at the disposal of the household in order to respond to possible calls shall be regarded as hours of work, the Committee requests the Government to provide information on the regulation of stand by pursuant to Article 10(3) of the Convention, and taking into consideration Paragraph 9 of the Domestic Workers Recommendation, 2011 (No. 201).

Article 15(2). Consultation with social partners concerned. The Committee notes that the Government’s report is silent on whether the most representative organizations of employers and workers and, if they exist, organizations representative of domestic workers and those representative of employers of domestic workers have been consulted in giving effect to the provisions of Article 15 of the Convention. The Committee requests the Government to provide information in this regard.

Article 17(2) and (3). Complaint mechanisms. Inspection. The Committee notes the Government’s indication that labour and occupational safety and health inspection at workplaces of domestic workers may be hindered by the fact that such workplaces are private premises, access to which requires the consent of the employer, as guaranteed in the Constitution. Under the Occupational Safety and Health (Employees’ Lodging Accommodation) Regulation 2011, the Permanent Secretary of the Ministry of Labour, Industrial Relations and Employment has the power to enter premises used solely for residential purposes to conduct such inspections, examination and investigation as may be necessary with the permission of the occupier. It also notes that under sections 61 and 62 of the ERiA 2008, the Permanent Secretary has the power to enter, for labour inspection, premises used solely for residential purposes with the permission of the occupier. However, in the absence of the employer’s consent to grant access to his/her premises for the purpose of inspection or investigation with a view to ascertaining compliance with the law, the Permanent Secretary has the power under the ERiA 2008 to require the employer to produce records and other documents relating to the terms and conditions of employment; or to request the employer to submit in writing information pertaining to wages, terms and conditions of employment, and particulars of employment of the worker; or to summon the employer where a breach of the law is suspected or enquiry into a reported dispute is necessary. The Committee requests the Government to provide information on practical inspection conducted in private premises where domestic workers undertake their work.