Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 333, Mars 2004

Cas no 2281 (Maurice) - Date de la plainte: 27-JUIN -03 - Clos

Allegations: The complainant alleges that the trade union movement has been victimized for the last 30 years by the anti-democratic and repressive nature of the Industrial Relations Act (IRA) which should be revoked and replaced by more acceptable legislation, without delay

1. 613. The complaint is contained in a communication from the Mauritius Labour Congress dated 27 June 2003.
2. 614. The Government sent its observations in communications dated 26 September 2003 and 23 February 2004.
3. 615. Mauritius has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98). It has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87).

A. The complainant’s allegations

1. 616. In its communication dated 27 June 2003 the Mauritius Labour Congress states that the trade union movement has been victimized for the last 30 years by the anti-democratic and repressive nature of the Industrial Relations Act (IRA). In particular, according to the complainant:
2. (1) The IRA denies the right to strike when negotiations fail.
3. (2) The IRA establishes severe penalties, like fines and even imprisonment, for participation in strikes; this results in the loss of jobs, a measure frequently followed by employers in the country.
4. (3) The IRA seriously hinders collective bargaining, which is practically inexistent in the country, due to the fact that employers feel absolutely protected by the legislation and workers cannot legally exercise the right to strike.
5. (4) The IRA confers to the Minister of Labour and Industrial Relations the authority to unilaterally refer disputes to compulsory arbitration thereby nullifying the right to strike and depriving unions of the right to collective bargaining.
6. (5) The legislation allows the Prime Minister to declare a strike illegal even if the latter is not unlawful, on the ground that the strike may imperil the national economy. The Prime Minister has exercised this power on several occasions thus leading to an abrupt stoppage of industrial action and at times, to lay-offs.
7. (6) On several occasions the Minister has rejected disputes. The law empowers him to do so on what appears to be flimsy grounds.
8. (7) The legislation gives the registrar excessive powers which amount to interference: approval has to be sought from the registrar for decisions taken by the annual general meeting (AGM); he can require unions’ officials to appear and produce documents, accounts of funds and assets even if these have been approved at the AGM unanimously or by majority vote; unions are also required to retain reports, accounts and other documents for a minimum period of three years.
9. (8) The legislation requires the presence of at least 50 plus 1 per cent of members in order to vote on the disposal of trade union assets. This requirement practically disallows large unions to dispose of old and even obsolete equipment and thus puts an unreasonable and unnecessary burden on unions.
10. (9) The law weakens the trade union movement by allowing registration of a union with only seven members. Over the last 30 years this has led to an unacceptable proliferation of unions, leading to the creation of 375 unions and 13 federations.
11. (10) The Permanent Arbitration Tribunal occasionally takes too much time to deliver an award. There is no specified delay for delivery of awards.
12. (11) The report of the Industrial Relations Commission (carrying out conciliation functions) does not have mandatory effect and the Minister has the authority not to publish it.
13. (12) Section 13 of the IRA enables the authorities to cancel the registration of trade unions.
14. (13) The law prescribes that appointment of auditors of unions’ funds or accounts should be made with the approval of the registrar. This means that the registrar may overrule the choice made by members at a general meeting.
15. (14) Appointment of the members of the National Remuneration Board (NRB) and the Industrial Relations Commission (IRC) is the prerogative of the Minister, according to the IRA. At times it appears that the choices for such appointments are politically motivated and this is not helpful for unions.
16. (15) The IRA exercises compulsion on unions and federations to respect the time limit between 1 January and 31 March for holding annual general meetings and electing their officials at the same time. This sometimes represents a serious handicap to unions and federations, especially the large organizations.
17. (16) The IRA does not allow unions or federations the possibility to elect officials for a period exceeding two years.
18. (17) As employers are allowed by the legislation to dismiss or lay off workers who participate in industrial action, workers in certain sectors, especially the EPZs, are very reluctant to join unions. The legislation thus allows employers to use threats against workers who express the wish to unionize. This contributes to the low rate of unionization in the country.
19. (18) The IRA requires unions or federations to have recourse to ballots in case they decide to amalgamate or to join a federation, although their members may have approved a resolution in the same connection.
20. (19) Time-off facilities for workplace representatives are almost inexistent especially in the private sector. Elected union officials in large unions are granted minimum time off just to attend executive council meetings and this considerably reduces the functions and scope of operation of unions.
21. (20) Procedures for obtaining recognition especially in the export processing zones are too cumbersome as employers use various kinds of tactics. If a union succeeds in obtaining recognition at the IRC, some companies change their names in order to maintain their refusal for recognition. They also contest the recognition at the Arbitration Tribunal and the Supreme Court thus causing the issue of recognition to drag on for several years.
22. 617. According to the complainant, despite promises to amend the legislation, the Government recently decided to render it more repressive by amending a specific section which now denies the right to public sector unions to declare disputes after a salary revision exercise in the same sector.
23. 618. The complainant stresses that the IRA was voted in Parliament in 1973 at the time when a state of emergency was declared in the country. According to the complainant, that period of repression has been codified and perpetuated in labour law. The IRA establishes a permanent balance of power in favour of employers, including the Government, enabling them to always reject union demands. Employers systematically refuse to grant recognition rights to unions in the private and EPZ sectors and almost all strikes staged during the last 30 years have been declared illegal. Numerous workers have faced repression and have lost their jobs as a result of this legislation, especially in the sugar, dock and transport sectors.
24. 619. The complainant notes that the claim to revoke the IRA and replace it by a new and more acceptable piece of legislation has been the central concern of the trade unions for the last 30 years. Motions have been presented in Parliament and several reports have been prepared on this issue, some of which were worse than the current legislation while some others, notably an ILO study carried out approximately eight years ago, were never published.
25. 620. Noting that the Government proposes to set up a new committee on this issue, the complainant expresses the fear that this committee may take five or six years to produce its report, which may end up in Government drawers, as has happened in the past. It emphasized therefore that the Government should revoke the IRA and have it replaced by more acceptable industrial legislation without delay.

B. The Government’s reply

1. 621. In its communications dated 26 September 2003 and 23 February 2004, the Government states its intention to review the Industrial Relations Act (IRA) as announced by the President upon the accession of the new Government in 2001 and as recently reiterated publicly by the Deputy Prime Minister and the Minister of Finance. This year a tripartite committee has been set up at the Ministry of Labour and Industrial Relations to review the IRA and to make recommendations. A technical committee at the Ministry is presently working on the various recommendations made in previous reports, including a report and recommendations made in the past by the ILO. All the federations of trade unions and the Mauritius Employers’ Federation have been invited to submit their proposals in writing. All the federations of trade unions submitted a common memorandum on 30 January 2004. The Mauritius Employers’ Federation was expected to supply its proposals by the end of February 2004. The Government states that, on receipt of all the proposals, a White Paper will be prepared on the replacement of the IRA by new legislation.
2. 622. More specifically, the Government indicates its intention to re-examine the following:
   • – The provisions of the IRA regarding strikes. The Government adds that due to the country’s vulnerability to external factors and economic constraints, the Government places much emphasis on prevention of industrial disputes and effective grievance settlement measures including through a Conciliation and Mediation Division in the Ministry of Labour and Industrial Relations and a Code on Conflict Free Workplace prepared after tripartite consultations.
   • – The provisions concerning collective bargaining. The Government emphasizes that several factors influence the extent to which collective bargaining is practised, including a trade union density of around 20 per cent, the fragmentation of trade unions and the refusal by trade unions to discuss several proposals for reform. In June 2003, the Minister of Labour and Industrial Relations solicited ILO assistance in order to conduct a full-scale study on the obstacles to collective bargaining and to advise on strategies for promoting collective bargaining.
   • – The power of the Prime Minister to declare a strike illegal if its continuation is likely to imperil the national economy, in the light of the existing legislation relating to fundamental rights and freedoms, public security and safety; since 1979, the Prime Minister has not availed himself of this provision.
   • – The powers of the registrar with regard to the approval of the decisions taken by the annual general meeting, the obligation of trade unions to produce documents, accounts and assets, the appointment of auditors and the disposal of assets.
   • – The minimum membership requirements for registration of trade unions. The existence of 352 registered trade unions and 13 federations indicates that freedom of association is fully respected and that there is no attempt to build trade union monopoly. The Government has set up and financially supported a trade union trust fund since 2000 with the aim of strengthening trade unions and helping them to build professional capacity.
   • – The functioning of conciliation and arbitration institutions. With regard to the publication of the IRC’s report, the Government states that the IRC is meant to provide a conciliation service and its reports are addressed to the parties to the dispute.
   • – The provision on cancellation of trade union registration (section 13 of the IRA).
   • – The amount of penalties provided in section 49 of the IRA for non-compliance with the prohibition of anti-union discrimination. Amendments will be introduced to the Labour Act shortly, to prohibit all forms of threats, violence, etc. against workers and to provide for severe fines for such actions. Workers’ education programmes are being conducted on a regular basis both on site and at the Ministry to inform workers of their rights. There have been no complaints from any worker regarding threats of anti-union dismissal, including in EPZs.
   • – The provisions of the IRA regarding registration of federations and amalgamation. The Ministry has noted certain ambiguities in the existing legislation. Consultations will be held with the social partners on this issue.
   • – The time-off facility for trade union activities (section 49 of the IRA guarantees this right and provides for penalties).
   • – Procedures for obtaining trade union recognition including in EPZs.
3. 623. The Government makes some additional comments on the complainant’s allegations. With regard to the allegation that the legislation establishes severe penalties for participation in strikes, the Government indicates that over the past three years, there have been no fines or cases of imprisonment resulting from participation in a strike and the Ministry of Labour and Industrial Relations has intervened to ensure that the workers resume work normally.
4. 624. With regard to the allegation that the Minister exercises the authority to refer disputes unilaterally to compulsory arbitration, the Government states that under section 82(1)(e) of the IRA, the Minister may advise the parties to refer the dispute to the Permanent Arbitration Tribunal only as a last resort where the disputants have expressed such a wish. Statistical information indicates that only a small percentage (approximately 10 per cent) of the cases handled by the Ministry are actually referred to compulsory arbitration. Finally, notwithstanding the Minister’s right to refer disputes to conciliation and arbitration, there have been 73 work stoppages/strikes during the past three years.
5. 625. The Government dismisses the allegation that the Minister has rejected disputes on certain occasions on flimsy grounds and indicates that section 80 of the IRA stipulates that the Minister may reject a report of dispute only if it appears to him that the report: (a) relates in whole or in part to a dispute which is not an industrial dispute; or (b) is made by or on behalf of a party who is not, or is not entitled to be a party to an industrial dispute in relation to any of the issues or matters raised in the report; or (c) does not contain sufficient particulars of the issues or matters giving rise to the disputes. Any party who feels aggrieved by the rejection may appeal to the Permanent Arbitration Tribunal. The Government adds that only 15 disputes out of 951 have been rejected since 2001.
6. 626. The Government rejects as totally unfounded the allegation that the appointment of persons as members of the NRB and the IRC by the Minister are politically motivated and emphasizes that the IRA requires such appointment to be made after consulting such organizations representing employees and employers as the Minister considers appropriate.
7. 627. With regard to the allegation that the Government has made the legislation more repressive by amending a specific section which now denies the right to unions of the public sector to declare disputes after a salary revision exercise, the Government explains that on 13 June 2003, an amendment to the IRA was voted in the National Assembly providing that employees, who opt to be governed by the report of the Pay Research Bureau with regard to salaries, and therefore sign a voluntary option form to this effect, will not have the right to declare disputes in respect of remuneration or allowance of any kind. The amendment does not prevent public officers who do not accept the new salaries and conditions of employment and refuse to sign the option form to declare a dispute.
8. 628. In conclusion, the Government states that a holistic approach is being adopted for the review of the IRA taking into consideration the social and economic context, the protection of fundamental rights and freedoms as well as the importance of promoting sound and harmonious industrial relations as a factor enhancing competitiveness. The success of this exercise would depend to a large extent on the attitude of the social partners and their willingness to examine the issues and make proposals with a dispassionate and objective mind.

C. The Committee’s conclusions

1. 629. The Committee notes that this case concerns allegations that the trade union movement has been victimized for the last 30 years by the anti-democratic and repressive nature of the Industrial Relations Act (IRA) which, according to the complainant, should be revoked and replaced by more acceptable legislation without delay. The Committee also takes note of the Government’s statement that it is committed to amending the IRA and has set up a tripartite committee, as well as a technical one, at the Ministry of Labour and Industrial Relations to this end.
2. 630. The Committee notes that certain attempts have been made in the past to bring about a revision of the industrial relations legislation in Mauritius. The Committee recalls that previous technical assistance projects and reports have identified certain obstacles to the ratification of Convention No. 87 including the unfettered discretion of the Minister of Labour and Industrial Relations to refer any industrial dispute in any sector to the Permanent Arbitration Tribunal for compulsory arbitration, the need to modernize the dispute resolution procedures capable of assisting the parties in the collective bargaining process and helping them to avoid industrial action, as far as possible, and overly detailed and restrictive legal provisions concerning the constitution, membership, administration, management, property and funds of trade unions.
3. 631. With regard to the issue of compulsory arbitration, the Committee wishes to emphasize that a regime of compulsory arbitration at the discretion of the authorities is contrary to the free and voluntary nature of collective bargaining and raises problems in relation to the application of Convention No .98, ratified by Mauritius. It also recalls that compulsory arbitration to end a collective labour dispute and a strike is acceptable if it is at the request of both parties involved in a dispute, or if the strike in question may be restricted, even banned, i.e., in the case of disputes in the public service involving public servants exercising authority in the name of the State or in essential services in the strict sense of the term, namely those services whose interruption would endanger the life, personal safety or health of the whole or part of the population [see Digest of decisions and principles of the Freedom of Association Committee, 2nd edition, 1996, paras. 515 and 861].
4. 632. The Committee further notes that where the right to strike is restricted or prohibited in certain essential undertakings or services, adequate protection should be given to the workers to compensate for the limitation thereby placed on their freedom of action with regard to disputes affecting such undertakings and services; restrictions on the right to strike should therefore be accompanied by adequate, impartial and speedy conciliation and arbitration proceedings in which the parties concerned can take part at every stage and in which the awards, once made, are fully and promptly implemented [see Digest, op. cit., paras. 546 and 547]. The bodies entrusted with mediation and arbitration should have the confidence of all parties concerned and should be accessible on a voluntary basis and without government interference.
5. 633. With regard to protection against anti-union discrimination, especially as a result of participation in strikes, the Committee notes that the use of extremely serious measures, such as dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association. It is inconsistent with the right to strike for an employer to be permitted to refuse to reinstate some or all of its employees at the conclusion of the strike, lockout or other industrial action without those employees having the right to challenge the fairness of that dismissal before an independent court or tribunal. More generally, respect for the principles of freedom of association clearly requires that workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial. With regard to the amount of penalties, the Committee notes that the existence of legislative provisions prohibiting acts of anti-union discrimination is insufficient if they are not accompanied by efficient procedures to ensure their implementation in practice [see Digest, op. cit., paras. 597, 722, 741 and 742].
6. 634. With regard to the power of the Prime Minister to declare a strike illegal if its continuation is likely to imperil the national economy, the Committee notes that whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association. Responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of all parties involved [see Digest, op. cit., paras. 522 and 572].
7. 635. Concerning the recognition of the most representative workers’ organizations for collective bargaining purposes, the Committee emphasizes that such recognition is an important means through which collective bargaining may be promoted, including in EPZs. Recognition by an employer of the main unions represented in his undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking. The competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking, provided that such a claim appears to be plausible. If the union concerned is found to be the majority union, the authorities should take appropriate conciliatory measures to obtain the employer’s recognition of that union for collective bargaining purposes [see Digest, op. cit., paras. 822 and 824].
8. 636. With regard to EPZs in particular, the Committee recalls that the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy provides that special incentives to attract foreign investment should not include any limitation of the workers’ freedom of association or the right to organize and bargain collectively. The Committee considers that legal provisions on export processing zones should ensure the right to organize and bargain collectively for workers [see Digest, op. cit., para. 801].
9. 637. The Committee also notes that all public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights and priority should be given to collective bargaining as the means to settle disputes arising in connection with the determination of terms and conditions of employment in the public service. It recalls that when examining various cases in which workers who refused to give up the right to collective negotiation were denied a wage rise, the Committee considered that it raised significant problems of compatibility with the principles of freedom of association, in particular as regards Article 1(2)(b) of Convention No. 98 [see Digest, op. cit., paras. 893 and 913].
10. 638. Finally, the Committee emphasizes that trade unions have the right to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities. They have the right to establish and join federations and confederations of their own choice. They should not be liable to be dissolved or suspended by administrative authority.
11. 639. The Committee requests the Government to take all necessary measures as soon as possible to conclude the revision of the IRA in conformity with the above freedom of association principles and in consultation with the social partners. The Committee requests to be kept informed of progress made in this respect.
12. 640. The Committee observes that both the complainant and the Government emphasize the need to achieve a swift and successful revision of the IRA. It also takes note of the Government’s recent request for ILO technical assistance in defining the obstacles to collective bargaining and in advising on strategies for promoting collective bargaining. The Committee notes that a good number of these obstacles are legislative and that legal reform is essential if industrial relations in the country are to be firmly based on freedom of association and free and voluntary collective bargaining. The Committee considers that ILO technical assistance may be necessary in the framework of the revision of the IRA, given the magnitude and complexity of the task, as well as the need to accommodate both its technical aspects and the wider needs and views of the social partners. The Committee therefore strongly encourages the Government to make use of ILO technical assistance with a view to facilitating the process of revision of the IRA. The Committee requests to be kept informed in this respect.

The Committee's recommendations

1. 641. In the light of its foregoing conclusions, the Committee requests the Governing Body to approve the following recommendations:
   • (a) The Committee takes note of the Government’s statement that it is committed to amending the IRA and has set up a tripartite committee, as well as a technical one, at the Ministry of Labour and Industrial Relations to this end.
   • (b) The Committee requests the Government to take all necessary measures as soon as possible to conclude the revision of the IRA in consultation with the social partners and in conformity with the following freedom of association principles:
     • – A regime of compulsory arbitration at the discretion of the authorities is contrary to the free and voluntary nature of collective bargaining.
     • – Restrictions on the right to strike should be accompanied by adequate, impartial and speedy conciliation and arbitration; the bodies entrusted with such mediation and arbitration should have the confidence of all parties concerned and should be accessible on a voluntary basis and without government interference.
     • – The dismissal of workers for having participated in a strike and refusal to re-employ them, implies a serious risk of abuse and constitutes a violation of freedom of association.
     • – Workers who consider that they have been prejudiced because of their trade union activities should have access to means of redress which are expeditious, inexpensive and fully impartial.
     • – Legislative provisions prohibiting acts of anti-union discrimination should be accompanied by efficient procedures to ensure their implementation in practice.
     • – Whenever a total and prolonged strike in a vital sector of the economy might cause a situation in which the life, health or personal safety of the population might be endangered, a back-to-work order might be lawful, if applied to a specific category of staff in the event of a strike whose scope and duration could cause such a situation. However, a back-to-work requirement outside such cases is contrary to the principles of freedom of association.
     • – Responsibility for declaring a strike illegal should not lie with the Government, but with an independent body which has the confidence of all parties involved.
     • – The recognition of the most representative workers’ organizations for collective bargaining purposes is an important means through which collective bargaining may be promoted, including in EPZs; the competent authorities should, in all cases, have the power to proceed to an objective verification of any claim by a union that it represents the majority of the workers in an undertaking and to take appropriate conciliatory measures to obtain the employers’ recognition.
     • – Special incentives to attract foreign investment should not include any limitation of the workers’ freedom of association of the right to bargain collectively and legal provisions on export processing zones should ensure the right to organize and bargain collectively for workers.
     • – All public service workers other than those engaged in the administration of the State should enjoy collective bargaining rights; cases in which workers who refuse to give up the right to collective negotiation are denied a wage rise, raise significant problems of compatibility with the principles of freedom of association.
     • – Trade unions should have the right to draw up their constitutions and rules, elect their representatives in full freedom, organize their administration and activities and formulate their programmes without interference by the public authorities.
     • – Trade unions should have the right to establish and join federations and confederations of their own choice.
     • – Trade unions should not be liable to be dissolved or suspended by administrative authority.
     • The Committee requests to be kept informed of progress made in this respect.
   • (c) The Committee strongly encourages the Government to make use of ILO technical assistance with a view to facilitating the process of revision of the IRA. The Committee requests to be kept informed in this respect.