Effect given to the recommendations of the committee and the Governing Body - Report No 351, November 2008

Case No 2575 (Mauritius) - Complaint date: 21-JUN-07 - Closed

Effect given to the recommendations of the Committee and the Governing Body

1. 124. The Committee examined this case, which concerns alleged irregularities in the process leading to the setting up of a new bargaining structure, called the National Wages/Pay Council (NPC), as well in this body’s composition, mode of designation of representatives and of objectives, at its March 2008 meeting [see 349th Report, approved by the Governing Body at its 301st Session, paras 900–958]. On that occasion, the Committee reached the following recommendation:
   • The Committee requests the Government to take a renewed initiative aimed at full and frank consultations with representatives of the social partners whose representativity has been objectively proved, with a view to holding in-depth discussions on ways and means to improve the functioning, composition and objectives of the NPC so as to arrive at a conclusion in this regard, which is satisfactory to all parties concerned. The Committee requests to be kept informed of developments in this respect.
2. 125. The Government provided its observations in communications dated 9 April 2008 and 29 May 2008. In the first place, the Government expressed concern at the Committee’s conclusion that consultations with the social partners were unilaterally interrupted without giving sufficient time to fully discuss the views of the parties and give every opportunity to arrive at a common position given that in its opinion, the trade unions had been given every opportunity to discuss the mechanism to replace the National Tripartite Committee, as evidenced by the minutes of the various meetings held with their representatives. Given that at the meeting of 5 February 2007, the President of the State Employees Federation stated that no further discussions should be held on the National Wages Council (later retitled National Pay Council (NPC)), since all the trade unions were against its setting up, it was rather the representatives of the workers’ organizations who had discharged themselves from the process.
3. 126. The Government further states that no draft legislation could be provided to the unions as it decided to set up the NPC administratively on 26 January 2007, and there was therefore no draft legislation to provide. While it was envisaged by the Government at one point in time to make appropriate provisions for the establishment of the NPC in draft legislation amending the Industrial Relations Act, the Government agreed to the recommendation of the Director of the International Labour Standards Department to separate the consideration of the National Wages Council from the proposed legislation and proceeded accordingly.
4. 127. As regards the question of the unilateral appointment of representatives of trade unions on the NPC, the Government refers to paragraph 947 of the General Survey of 1992 on wagesetting machinery. It maintains that faced with the union’s refusal to participate in the newly created NPC, the Government had no alternative than to appoint the workers’ representatives who expressed willingness to serve on the NPC, so as to ensure that the workers’ interests were duly taken on board at the level of the Council. The Government adds that despite the letter dated 13 April 2007, wherein the trade union’s representatives informed that they would not submit the names of any representative to sit on the NPC, the Minister met the representatives of the trade unions on 16 April 2007 and appealed to them to participate even under protest. They were again requested, through a letter dated 16 April 2007, to reconsider their decision. The Government emphasizes in this regard that all the efforts were deployed to ensure the representation of the most representative trade unions on the Council.
5. 128. The Government draws attention to the fact that in its reply it focused on the main thrust of the complaint and based itself on facts, not perceptions. It raises concern at the reference to the Consultation (Industrial and National Levels) Recommendation, 1960 (No. 113), which by the fact of being a Recommendation cannot create any obligation on the Government. The decision of the Government to proceed with the setting up of the NPC and the appointment of workers’ representatives on the NPC rests on the observations of the Committee of Experts on the Application of Conventions and Recommendations made in its General Survey of 1982 on Convention No. 144 and in its General Survey of 1992 and on Convention No. 26. Both Conventions Nos 26 and 144 have been ratified by the Government of Mauritius. After the workers’ representatives flatly refused to form part of the NPC, the Government had to consider alternative courses of action which would best serve the interest of the workers. It could not be held hostage by a group of trade unions which represent only 20 per cent of the workers and ignore the interests of the remaining 80 per cent of the workers. The Government reiterates the observations of the Committee of Experts in its General Survey of 1992 on wage-fixing machinery: “This does not prevent the competent authorities, in certain cases where the organizations concerned (i.e. the employers’ and workers’ organizations) have made no appointment, from designating representations of the said organizations on the minimum wage-fixing bodies”. The Government was guided by these observations in the course of action it took in the circumstances described.
6. 129. Furthermore, according to the Government, since the Committee has not recommended the dissolution of the NPC as requested by the complainant, in line with the recommendation of the Committee, fresh consultations were held with the stakeholders with a view to arriving, if possible, at a consensus on how best to improve the functioning, composition and objectives of the NPC. Furthermore, the Chairperson of the NPC to whom reference was made in the complaint resigned from his office to take employment abroad and a new Chairperson who is a retired senior chief executive of the Government took over. No adverse comment has been made by any party on his appointment.
7. 130. A meeting was held with the representatives of all trade union federations, grouped under a Trade Union Common Platform (TUCP), on 10 April 2008 to discuss ways and means to improve the functioning, composition and objectives of the NPC. At the meeting, the representatives of the federations insisted that the inflation rate should be the only criterion to determine the annual salary compensation and they made the following additional requests: (i) the Chairperson of the NPC to be appointed “by consensus of the three social partners”; (ii) the number of workers’ representatives on the NPC to be increased to ten as Government and employers have a total of ten representatives on the Council; the government representatives being considered as employers’ representatives in view of the fact that the Government is also an employer; (iii) the nomination of the workers’ representatives to be made by the trade unions themselves, on the basis of their representativity; (iv) the obligation for the Government to accept or reject in toto the recommendations of the NPC, if arrived at by consensus, and the trade unions to have the right to go on strike in case no consensus is reached at the level of the NPC and the Government decides on a salary compensation which is not acceptable to the workers; and (v) pending conclusion of the ongoing discussions on the NPC, an independent committee to be set up immediately with the participation of the unions to evaluate the loss of purchasing power due to price increases during the last 12 months.
8. 131. The views and proposals of the TUCP were examined by the Government. As regards the requests of the trade unions at (i) and (iii) above, the Government noted that this has always been the guiding principle for such nominations but, given the stand of the unions, exceptionally alternative arrangements had to be made. In a letter dated 22 April 2008, the Minister informed all the trade union federations that the Government has decided as follows: (i) as a chairperson was already in office, henceforth such appointment will be made on the basis of interactive consultations among the three social partners; (ii) the nomination of the workers’ representatives on the NPC will be made by the trade unions themselves, on the basis of their representativity; (iii) the representativeness of the three partners on the Council was equitable reckoning with the fact that government representatives act as a neutral party, focusing on facilitation of discussion and not as representatives of employers; (iv) the inflation rate could not be the only criterion for determination of the annual salary compensation; (v) it was not desirable to set up any committee to evaluate the loss of purchasing power due to price increase as such an exercise was already one of the attributions of the NPC; and (vi) any strike action contemplated by the trade union movement on the quantum of the salary compensation would have to follow the procedures established under the law. In the same letter, the Minister also reiterated, in the national interest and with a view to further strengthening social dialogue, that their active involvement and participation in the work of the Council would provide workers of the country with an appropriate forum to discuss issues pertaining to the annual salary compensation. The federations were requested to agree among themselves and submit the names of the five workers’ representatives for appointment as members of the NPC.
9. 132. In a letter dated 25 April 2008 to the Minister, the TUCP noted the Government’s position on the mode of designation of the unions’ representatives and the Chairperson on the NPC and requested for further discussions in order to finalize outstanding matters particularly relating to the objectives of the NPC. There was an exchange of letters between the Minister and the federations of trade unions on 29 April, 2 and 5 May 2008 wherein the TUCP was urged to submit the names of their representatives on the Council, whilst concurrently discussions are held, on how to further improve the objectives of the NPC. The TUCP finally informed the Minister on 6 May 2008 of the designation of five workers’ representatives to sit on the Council. The said five workers’ representatives together with five representatives designated by the Mauritius Employers’ Federation were subsequently appointed as members of the NPC on 6 May 2008.
10. 133. The NPC met on 8, 16 and 21 May 2008 and after consideration of the memoranda submitted by the workers’ and employers’ organizations, made recommendations to the Government on 21 May 2008 for the payment of a salary compensation for the financial year 2008–09. It is to be noted that the members representing workers on the Council maintained their stand that the computation of the compensation should be based on increase in cost of living only. Following submission of their memorandum, the workers’ representatives refused to participate in the discussions of the NPC. They left the meeting when the employers presented their memorandum at the meeting of 16 May. They also refused to discuss the proposals which the Chairperson presented to the Council at its meeting of 21 May, after examination of the memoranda submitted by the employers’ and the workers’ representatives and left the meeting.
11. 134. Whilst the NPC was considering the determination of the salary compensation, the Minister had, concurrently, a meeting with the representatives of all the federations of trade unions on 12 May 2008 to pursue discussions on the ways to improve the objectives of the National Pay Council as recommended by the ILO. At that meeting, the representative of the General Workers Federation (GWF) stated that his federation and two other federations, namely the Federation of Progressive Unions and the Federation des Travailleurs Unis, have not been party to the nomination of the five workers’ representatives on the NPC in view of their objection to the NPC taking on board such criteria as national ability to pay, national productivity and employment and unemployment rate to determine the annual salary compensation. As proposed by the Minister, it was agreed that discussions would continue with a view to achieving consensus on how best to improve the objectives of the NPC. The help of experts, such as the Director of the Central Statistics Office, would be enlisted if necessary.
12. 135. The Committee recalls, in its previous observation, that the background of this case concerns the longstanding efforts to amend the Industrial Relations Act, with ILO technical assistance, pursuant to the conclusions and recommendations reached by this Committee in Case No. 2281. During the last examination of the follow-up to its recommendations in Case No. 2281, the Committee noted that past efforts had not led to any results and that the Government was considering the drafting of a new bill [349th Report, para. 951]. The present complaint is situated in the context of consultations for the new bill, and concerns the introduction into these consultations of an element that the complainant has alleged had not been agreed to, namely, changes in the system of minimum wage setting which had been in place in Mauritius for the last 30 years.
13. 136. As regards the question of consultations, the Committee recalls that its previous conclusions merely refer to the fact that once the trade unions refused to discuss the issue of the NPC any further, the Government nevertheless, proceeded with its administrative establishment with immediate effect. In so doing, the Government proceeded with changes that fundamentally transformed a system which had been in force for 30 years. In the meantime, and taking duly into account the recommendations of the Office that the matter of amending the IRA and that of establishing a new national wages council be presented in two separate phases, the Committee observes that these important and controversial changes to the wages council were brought forward in priority over the long-awaited amendments to the IRA on the basis of its recommendations made over four years ago.
14. 137. The Committee is nevertheless pleased to note that fresh consultations have been recently held on ways to improve the composition and functioning of the NPC. It notes with interest that workers’ representatives have been nominated by the TUCP to the NPC. The Committee also notes, however, that the workers’ representatives appointed by the TUCP eventually decided to abstain from the NPC and have refused to participate in its discussions as of May 2008, thus maintaining their stand that the computation of the salary compensation should be based on the increase in the cost of living only. It also notes that the complainant to the present case, the General Workers’ Federation, as well as the Federation of Progressive Unions and the Federation des Travailleurs Unis refused to participate in the NPC in protest for taking on board such criteria as national ability to pay, national productivity and employment and unemployment rate in order to determine the annual salary compensation.
15. 138. The Committee trusts that the Government will continue to pursue full and frank consultations on ways to improve the composition and functioning of the NPC, including the basis on which the salary compensation should be decided. The Committee requests the Government to keep it informed in this regard and requests it to provide further information on the Government’s response to the TUCP recommendations that the Government accept or reject in toto those recommendations of the NPC that may be decided by consensus and to clarify whether workers may go on strike against an NPC decision should it lack consensus.