Observation (CEACR) - adopted 2017, published 107th ILC session (2018)

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

The Committee notes the observations received on 1 September 2017 from Business Mauritius and the International Organisation of Employers (IOE), which relate to issues examined by the Committee below. It also notes the Government’s comments thereon, as well as on the 2016 observations from the Confederation of Private Sector Workers (CTSP) and the General Trade Unions Federation (GTUF).

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. The Committee had requested the Government to provide information on the application of Article 1 in practice, including statistical data on the number of complaints of anti-union discrimination brought before the competent authorities (labour inspectorate and judicial bodies), the outcome of relevant judicial or other proceedings and their average duration, as well as the number and nature of sanctions imposed or remedies provided. The Committee notes that the Government refers to the legislative provisions providing protection against acts of anti-union discrimination: section 31 of the Employment Relations Act 2008 (ERA) (prohibiting anti-union discrimination and providing for a maximum fine of Mauritian rupees (MUR) 100,000 (US$2,936)); and sections 38(1)(d) and (f) (prohibiting anti-union dismissal), 46(5B) (providing for reinstatement or severance pay of three months’ wages per year of service) and 67(1)(e) and (2) (providing for a maximum fine of MUR25,000 ($733) or imprisonment of two years), of the Employment Rights Act 2008. Business Mauritius enumerates, in addition, the reversal of the burden of proof under section 31 of the ERA. The Committee further observes the Government’s statement that, as per its records, no complaint of anti-union discrimination has been reported to the competent authorities from 1 June 2016 until 31 May 2017; and that, since 2013, four cases of termination of employment of union delegates have been registered at the labour office (one case was settled following an amicable settlement on the agreed sum of MUR30,000; in one case, the worker was reinstated on the same terms and conditions of employment; in another case, the Industrial Court gave judgment in favour of the worker for unjustified termination of employment and the employer was ordered to pay a sum of MUR800,000 ($23,631) as severance allowance; and the fourth case is being processed for court action). In this regard, the Committee wishes to recall the CTSP 2016 allegations of frequent harassment, intimidation, threats, discrimination and unfair dismissals of trade union representatives when trade unions are established in export processing zones (EPZs), and of frequent acts of anti-union discrimination in the private sector including a recent drastic increase in anti-union dismissals of trade union leaders and delegates without compensation. The Committee requests the Government to pursue its efforts, in particular in the EPZs, so as to ensure that all allegations of anti-union discrimination give rise to expeditious investigations and, if need be, to the imposition of dissuasive sanctions. It also requests the Government to continue to provide statistical data 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. With regard to the CTSP 2016 allegation of judicial proceedings in rights disputes taking six to seven years, the Committee notes the Government’s indication that, in the absence of an amicable settlement, cases are referred to the Industrial Court, which at a preliminary stage tries to conciliate the parties, failing which the matter is fixed for trial and a judgment is delivered without a time limit set for the determination of the case. Highlighting that an excessive delay in processing cases of anti union discrimination could give rise to a denial of justice, the Committee requests the Government to take measures with a view to accelerating relevant judicial proceedings and to provide statistical data on their average duration.

Article 4. Promotion of collective bargaining. The Committee requested the Government to redouble its efforts, in particular in EPZs, in the garment sector and in the sugar industry, to promote and encourage the greater development and utilization of procedures of voluntary negotiations between employers or employers’ organizations and workers’ organizations to regulate the terms and conditions of employment through collective bargaining agreements. It also requested the Government to continue to supply, or if necessary to compile, statistical information on the functioning of collective bargaining in practice as well as on the use of conciliation services. The Committee welcomes the Government’s indication that: (i) workers’ education sessions through seminars and talks are still being conducted on an ongoing basis by the Ministry of Labour targeting workers of different sectors including the EPZ/textile sector: from 1 June 2016 until 31 May 2017, 33 training/sensitization activities were carried out for the benefit of 323 male and 500 female employees of the EPZ/textile sector, wherein emphasis was laid on legal provisions and rights at work including those pertaining to the right to collective bargaining and unionization as guaranteed in the labour law; (ii) sensitization of workers in this regard is also effected on an ongoing basis during inspection visits at workplaces: during the abovementioned period, 79 inspection visits were carried out in the EPZ sector, covering 26,045 local workers (11,652 male/14,393 female), and 672 inspection visits in undertakings in the manufacturing sector, which employs 32,286 migrant workers (28,084 male/4,202 female); and (iii) from the 14 collective agreements registered with the Ministry of Labour as of June 2016 to date, one agreement pertains to the EPZ sector. The Committee observes that the information provided by the Government concerning the type of measures it has been taking to promote collective bargaining, is identical to that supplied in its last report. The Committee also notes that, according to Business Mauritius, the ERA sets out in a structured manner the conditions for the harmonious development of collective bargaining, and there is no impediment in the ERA preventing EPZ or migrant workers from embarking in collective bargaining. Taking due note of the legislative provisions which the Government enumerates as aiming at the promotion of collective bargaining (sections 4–6, 36, 37, 40, 41, 43, 51, 53 and 54 and Part VI of the ERA), the Committee expects that the Government will continue to carry out inspections and sensitization activities as described above. The Committee requests the Government, in consultation with the social partners, to strengthen these activities, in particular in the textile sector, sugar industry, manufacturing sector and other sectors employing EPZ workers and migrant workers, in order to promote and encourage in practice the greater development and utilization of procedures of voluntary negotiations between employers or employers’ organizations and workers’ organizations with a view to the regulation of terms and conditions of employment by means of collective bargaining agreements.

The Committee notes the information provided by the Government on the use of conciliation services in practice. In particular, as regards the CTSP 2016 allegation of an excessive length of the conciliation proceedings (not less than seven months) due to lack of human resources and logistic support, the Committee notes the Government’s explanations that, in practice: (i) trade unions report a dispute to the Commission for Conciliation and Mediation (CCM), as soon as the recommended duration for collective bargaining negotiations (90 days) has lapsed, without meeting the condition of a deadlock in the negotiations (section 64(2) of the ERA); and (ii) as a result, true collective bargaining negotiations start only after the dispute has been reported to the CCM, so that the 30-day period in which conciliation should be completed pursuant to section 69(3) of the ERA, is usually extended by the parties, as allowed for by section 69(4) of the ERA. Observing the divergence of views between the Government and the social partners, and considering that voluntary conciliation procedures should be expeditious, the Committee invites the Government to engage in a dialogue with the national social partners with a view to identifying the possible adjustments to be made to improve the rapidity and efficiency of the conciliation proceedings, and to provide information in this regard. The Committee 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. With regard to the alleged Government interference in collective bargaining in the sugar sector, the Committee trusted that, in the future, the Government would continue to refrain from having recourse to compulsory arbitration with the effect of bringing to an end collective labour disputes in that sector. The Committee notes the Government’s indication that it has already submitted its comments on the matter in 2015 and that it has taken due note of the comments and recommendations of the Committee. The Committee expresses the hope that the Government will continue to refrain from unduly interfering in and will 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 takes note of the view of Business Mauritius that the Remuneration Orders of the National Remuneration Board (NRB) are so elaborated and prescriptive that they act as a disincentive to collective bargaining, and suggests that the authorities: (i) implement the decision of the International Labour Conference Committee on the Application of Standards and render collective bargaining voluntary; (ii) provide for a more conducive statutory framework for the conduct of collective bargaining; and (iii) review the functioning of the industrial relations institutions such as the CCM and the Employment Relations Tribunal in order to support the collective bargaining process by providing more speedy and free conciliation, mediation and arbitration services. Business Mauritius believes that the harmonious development of industrial relations would be promoted, if the authorities, when tackling the issue of the loss of workers’ purchasing power, were to adopt solutions, which did not entail modifications of what had been agreed upon by workers’ and employers’ organizations, without the consent of both parties. Business Mauritius stresses that, currently, the Additional Remuneration Act modifies unilaterally duly negotiated collective agreements without the consent of the parties. This interference into the process of free and voluntary collective bargaining is a disincentive for parties to engage in collective bargaining. The Committee requests the Government to provide its comments in respect of the observations of Business Mauritius.

Article 6. Collective bargaining in the public sector. As regards the public sector, the Committee had previously noted the Government’s indication that consultations were held by the Pay Research Bureau (PRB) in the context of the review of pay, grading structures and other conditions of service with federations and trade unions; and discussions and negotiations on general terms and conditions of employment as reviewed by PRB were carried out centrally at the Ministry of Civil Service and Administrative Reform with the federations of civil service unions, but no agreements were signed. The Committee had also noted the statement of the Worker member of Mauritius at the Conference Committee in 2016, according to which: (i) collective bargaining did not exist at all in the public sector; and (ii) while the salaries of public servants were decided unilaterally by the PRB, conditions of service were determined at bipartite meetings between the Ministry of Civil Service and Administrative Reform and the PRB, without faithful and meaningful tripartite negotiations. The Committee had requested the Government to provide further information on the manner in which collective bargaining took place in the case of public servants other than those engaged in the administration of the State. The Committee notes that the Government states that the PRB acts as a permanent and independent body, which adopts a consultative approach with workers’ organizations and the Ministry of Civil Service and Administrative Reform, before making its recommendation to the Government. The Committee notes that, according to Business Mauritius, as Mauritius has ratified the Convention, the right to collective bargaining should be recognized in the public sector as well, subject to special modalities fixed in accordance with the Labour Relations (Public Service) Convention, 1978 (No. 151). The Committee recalls 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 this 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 invites the Government, together with the professional organizations concerned, to study ways in which the current system could be developed so as to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State.

Technical assistance of the Office. The Committee recalls that, in its conclusions ensuing from the debate in June 2016, the Conference Committee requested the Government to accept technical assistance from the Office to comply with the conclusions. The Committee notes the Government’s indication that the formulation of the second-generation Decent Work Country Programme (DWCP) for Mauritius is being prepared with ILO assistance since April 2017, and that the issues raised by the Committee will be taken up within this framework. It also notes that Business Mauritius would welcome ILO technical assistance in relation to the promotion of collective bargaining, including through legislative amendments, since collective bargaining at enterprise or sectoral level is the best mechanism for regulating terms and conditions of employment and should gain momentum. Noting the Government’s indication that the revision of the Employment Rights Act and the ERA is under way, the Committee reminds the Government that it may, if it so wishes, avail itself of the technical assistance of the Office, with a specific focus on the issues raised in the present observation.