Observation (CEACR) - adopted 2015, published 105th ILC session (2016)

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

The Committee notes the observations from the International Organisation of Employers (IOE) and the Mauritius Employers’ Federation (MEF) received on 31 August 2015. It also notes the Government’s response to the observations made by the International Trade Union Confederation (ITUC) in 2014.

Follow-up to the conclusions of the Committee on the Application of Standards (International Labour Conference, 104th Session, June 2015)

The Committee takes due note of the debate which took place within the Conference Committee in June 2015 and the ensuing conclusions.

Article 1 of the Convention. Alleged acts of anti-union discrimination. The Committee previously requested the Government to conduct the necessary inquiries into allegations of anti-union discrimination made by the ITUC in 2014. In this regard, the Committee notes that the Government indicates that: (i) as regards the suspension of a trade union leader, an agreement was reached to the satisfaction of the parties before the Commission for Conciliation and Mediation (CCM); and (ii) as regards the alleged prejudicial changes to the employment contracts of 37 female workers after they joined a union, the information provided to the Government was insufficient to be able to carry out an investigation.

Article 4. Collective bargaining. In its previous observation, the Committee noted the Government’s indication that statistics were not available allowing it to comment on the alleged reduction in collective agreements in 2009, that 43 collective agreements were registered for the period June 2010–May 2014; and that there was no legislative impediment to collective bargaining in export processing zones (EPZs), the textile sector or for migrant workers. The Committee requested the Government to provide information on any concrete measures taken or envisaged to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to the regulation of terms and conditions of employment by means of collective agreements, in EPZs, the textile sector and for migrant workers. The Committee also requested the Government to take measures in order to compile statistical information on collective agreements in the country and on the use of conciliation services.

The Committee notes from the information provided by the Government to the Conference Committee that: (i) while there is no legal impediment to collective bargaining for EPZ workers, the Government will do everything to encourage and promote the full development and utilization in the EPZs of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, including awareness-raising campaigns to sensitize workers of their rights; and (ii) since the amendment of the Employment Relations Act (ERA) in 2013, a conciliation service is provided by the Minister upon the request of the parties to a labour dispute at any time before a lawful strike takes place. The Committee duly notes that, in its conclusions ensuing from the debate in June 2015, the Conference Committee urged the Government to “take concrete measures to promote collective bargaining in the EPZs and provide information to the Committee of Experts on the state of collective bargaining in the Zones”. The Committee notes with regret that the Government has failed to provide any information in this respect in its report. The Committee urges the Government to provide detailed information on the current situation with regard to collective bargaining in the EPZs, as well as on the concrete measures taken or envisaged to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers or employers’ organizations and workers’ organizations, with a view to regulating terms and conditions of employment by means of collective agreements, in EPZs, the textile sector and for migrant workers (for example, training and information activities, seminars with the social partners, etc.). Furthermore, in order for it to be able to review the functioning of collective bargaining in practice, the Committee once again requests the Government to take measures in order to compile statistical information on collective agreements in the country (for example, number of agreements concluded in the public and private sectors as well as in EPZs, branches covered, number of workers covered, etc.) and on the use of conciliation services.

Interference in collective bargaining. The Committee had previously noted the 2014 observations from the IOE and the MEF alleging that, in 2010, the Government had intervened in the collective bargaining process in the sugar industry by referring the 21 issues that could not be resolved during the collective bargaining process to the National Remuneration Board (NRB). The Committee had noted the Government’s subsequent indication that the dispute had been resolved and that the court proceedings lodged by the MEF in this regard had been withdrawn. The Committee further notes that the Government indicated to the Conference Committee that: (i) the Minister of Labour had withdrawn the referral of the 21 issues to the NRB pursuant to an agreement reached by the parties in August 2012; (ii) the referral had been made in a very specific context with a view to avoiding a strike in the sugar industry, which would have had negative economic effects; and (iii) it was not the policy of the Government to request the NRB to intervene in cases where a final collective agreement had been concluded. The Committee also notes the Worker members’ statements to the Conference Committee that: (i) the Government had justified its interference in the bargaining process to set wages in the sugar cane sector on the grounds of an imminent threat of strike action which had to be avoided if it were to honour its commitments to the European market; and (ii) negotiations had therefore been held under Government auspices, and those provisions on which no agreement had been reached had been passed on to a compulsory arbitration board.

Moreover, the Committee notes the statements by the Employer members to the Conference Committee and the observations submitted by the IOE and the MEF, according to which: (i) the same problems had arisen again in November December 2014; (ii) following the expiration of the collective agreement in the sugar industry on 31 December 2013, and after months of protracted negotiations, the union had decided to take strike action; and (iii) the Government had intervened, requiring the signature of a collective agreement and referring the three issues that had remained unresolved during collective bargaining to the NRB and to compulsory arbitration, as it had done in 2010. In this regard, the Committee notes that the Government states in its report and indicated to the Conference Committee that: (i) following negotiations, no collective agreement had been concluded, and both parties had referred the dispute to the CCM where no agreement could be reached; (ii) the strike action had negative economic effects; (iii) the Minister of Labour, acting under section 79A “Conciliation service by Minister” of the ERA, had brought the two parties to the negotiating table and an interim collective agreement had been reached with the consent of both parties; (iv) in the absence of agreement between the parties, the dispute had then been referred to an arbitrator appointed by the Government, who rendered an award on 31 July 2015 concerning wage increases; and (v) the allegation that arbitration was imposed is not justified as the parties voluntarily agreed on the appointment of the arbitrator.

The Committee duly notes that the Conference Committee urged the Government, in its conclusions ensuing from the debate in June 2015 to: (i) “refrain from violating Article 4 of the Convention and avoid such violations in the future”; (ii) “cease undue interference in private sector collective bargaining by selectively reviewing the Remuneration Orders in response to the outcome of collective bargaining”; and (iii) “engage in social dialogue with the social partners regarding collective bargaining and the Remuneration Orders”.

The Committee notes that there is disagreement with regard to the events in 2014, since the Government claims in its report that recourse to arbitration in 2014 was voluntarily agreed upon by the parties, whereas the Employer members denounced before the Conference Committee, just like the IOE and MEF in their observations, that in 2014 the Government referred a dispute to compulsory arbitration during a strike in the sugar sector. The Committee observes, however, that, with respect to 2012, both social partners stated before the Conference Committee that the Government had interfered in collective bargaining and referred the dispute to compulsory arbitration in the context of an imminent strike in the sugar sector, and that the Government did not challenge this allegation. The Committee recalls that the imposition of a compulsory arbitration procedure if the parties do not reach agreement on a draft collective agreement through collective bargaining is incompatible with the voluntary nature of collective bargaining and raises problems in relation to the application of Convention No. 98. The Committee recalls that recourse to compulsory arbitration to bring an end to a collective labour dispute in the private sector is acceptable in conflicts in essential services in the strict sense of the term (that is, services the interruption of which would endanger the life, personal safety or health of the whole or part of the population) or in situations of acute national or local crisis. Noting that regard must be had to the particular circumstances prevailing in a country, the Committee considers that, at the time of recourse to compulsory arbitration in the sugar sector, there has been no clear and imminent threat to the life, personal safety or health of the whole or part of the population, and that the sector does thus not constitute an essential service within the strict sense of the term.

Considering that recourse to public authorities like the NRB should be voluntary, the Committee firmly hopes that, in the future, the Government will make every effort to refrain from having recourse to compulsory arbitration with the effect of bringing to an end collective labour disputes in the sugar sector, and that in any event it will give priority to collective bargaining of a voluntary nature as the means of determining terms and conditions of employment in that sector. Finally, noting the Government’s indication that it has taken due note of the conclusions of the Conference Committee and that it undertakes to consider to the extent possible, in the context of the labour law review currently being carried out in consultation with employers’ and workers’ organizations, how best to encourage and promote the full development of collective bargaining, the Committee requests the Government to provide information on any developments in this respect.

The Committee reminds the Government that if it so wishes it may take advantage of ILO technical assistance in relation to the issues raised in this observation.

[The Government is asked to reply in detail to the present comments in 2016.]