Report in which the committee requests to be kept informed of development - Report No 370, October 2013

Case No 2969 (Mauritius) - Complaint date: 28-MAY-12 - Closed

Allegations: The complainant organization alleges: (1) the dismissal of the General Secretary and of four members of the Organisation of Hotel, Private Club and Catering Workers’ Unity by the Blue Lagoon Beach Hotel as well as the interdiction of all trade union meetings within the premises and interdiction of all workplace representatives to communicate at the seat of the trade union during working hours; and (2) the recognition by Ireland Blyth Ltd of a new trade union (Ireland Blyth Ltd Staff Union) for collective bargaining purposes, in violation of the Procedural Agreement signed between the company and Ireland Blyth Ltd Staff Association and the applicable legislation

1. 493. The complaint is contained in communications from the Federation of United Workers (FTU) dated 28 May and 1 June 2012, as well as 16 July 2012.
2. 494. The Government forwarded its response to the allegations in a communication dated 21 March 2013.
3. 495. Mauritius has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 496. In communications dated 28 May and 1 June 2012, as well as 16 July 2012, the complainant organization, a duly registered trade union federation of Mauritius, denounces violations of Conventions Nos 87 and 98 in the Blue Lagoon Beach Hotel and Ireland Blyth Ltd.

Blue Lagoon Beach Hotel

1. 497. The complainant indicates that the hotel belongs to a group owned by a well-known family in Mauritius. The Organisation of Hotel, Private Club and Catering Workers’ Unity, a trade union affiliated to the FTU, is legally recognized by the hotel since 1999 (recognition certificate granted by the Industrial Relation Commission (IRC) in 1999 enclosed with the complaint).
2. 498. According to the complainant, as from the day the board of directors appointed a new General Manager in 2011, industrial relations started to deteriorate after the following unilateral decisions of the management:
   • ■ When absenting on ground of sickness, a worker is compelled to notify the employer for every consecutive absence, which is not in compliance with section 10 of the Catering and Tourism Industries Remuneration Order Regulations 2004. Moreover, the management refused to give permission to a female worker to go and seek police assistance as she was victim of a criminal case.
   • ■ The payment of wages is not in compliance with section 5(1)(a) of the Catering and Tourism Industries Remuneration Order Regulations 2004. For instance, September wages were paid on 3 October 2011.
   • ■ Workers wishing to meet the management to voice out their problems cannot do so in the absence of a formal appointment and need to be accompanied by the relevant head of department.
   • ■ The company has introduced several cameras within the hotel aiming to control every second and minute of a worker.
   • ■ In April 2012, the General Secretary and four members of the Organisation of Hotel, Private Club and Catering Workers’ Unity have been charged with unlawfully removing foodstuff from the hotel and have subsequently been dismissed by the company (charge and dismissal letters of trade union members enclosed with the complaint).
   • ■ According to the police report (copy enclosed with the complaint), the management filed false criminal charges against all of them. The trade union members framed by the General Manager are as follows: (i) Deepak Dassoo (General Secretary); (ii) Denis Manikion (member); (iii) Rakesh Judah (member); (iv) Ramjeeatoo Jootoo (member); and (v) Suresh Goomany (member).
   • ■ The company has unilaterally prohibited all trade union meetings within its premises. They used to take place during rest time in the workers’ mess room. This right existed since the recognition of the trade union in 1999.
   • ■ The company has prohibited all workplace representatives to communicate at the seat of the trade union during working hours. This right existed since 1999.
3. 499. The complainant believes that the acts and doings of the hotel clearly infringe ILO Conventions Nos 87 and 98.

Ireland Blyth Ltd

1. 500. This important private company is among the first five companies in Mauritius and was incorporated in 1972. Workers of the said company are members of the Ireland Blyth Ltd Staff Association (IBLSA), which is affiliated to the FTU.
2. 501. The IBLSA is legally recognized by the company since 21 May 2007, when the parties signed a Procedural Agreement (copy enclosed with the complaint). Under section 3(2) of the Procedural Agreement, the company undertakes not to grant recognition to another union unless it is asked to do so by the IRC. The complainant informs the Committee that the IRC has now been replaced by the Commission for Conciliation and Mediation (CCM) under the Employment Relations Act 2008 (EReA).
3. 502. In 2010, the IBLSA submitted its claims with respect to conditions of employment and wage increase to the company for negotiations. At the beginning of 2011, two meetings were held between the parties at the seat of the company. The third meeting, scheduled in advance between the parties, was unilaterally cancelled by the company.
4. 503. A new trade union, the Ireland Blyth Ltd Staff Union (IBLSU) was immediately recognized by the company and a joint negotiating panel was imposed without consent or any discussion. The IBLSA rejected the company’s decision on the following grounds:
   • ■ On 21 March 2011, when the IBLSU filed the request for recognition, it was not a registered union with the Registrar of Associations and therefore had no legal status (document enclosed with the complaint).
   • ■ The recognition of the IBLSU is in clear violation of the Procedural Agreement signed between the company and the IBLSA.
   • ■ Moreover, the recognition of the IBLSU violates section 36 of the EReA (copy enclosed with the complaint).
5. 504. At present, the company has ceased all negotiations with the IBLSA, which filed a case with the Employment Relations Tribunal (ERT) against the company for unfair labour practices (section 54 of the EReA). During the course of the hearing, on 19 December 2011, an agreement was reached in good faith that the company shall resume negotiation with the IBLSA “on ongoing negotiations”. Thus, the IBLSA withdrew the case (copy enclosed with the complaint). Instead of complying with the said agreement reached before the ERT, the company unilaterally decided to cancel the existing Procedural Agreement (copy enclosed with the complaint). Furthermore, during the same proceedings the ERT stated “Yes for us the issue is clear. This is Human Resources Management, if at your level you cannot deal with these issues; these are not matters which ought to be brought before the Tribunal. The law is clear, it would be best to have a joint negotiating panel. But if you cannot have a joint negotiating panel, you cannot impose. Is the word ‘imposition’ the problem?”
6. 505. Due to the persistent refusal of the employer, the IBLSA filed another case before the CCM of the Ministry of Labour and Industrial Relations (report enclosed with the complaint), but the management denied the agreement reached before the ERT.
7. 506. In addition, the IBLSA is also recognized by Logidis Ltd (within the company) since 2007, which, on 15 March 2012, granted recognition to the IBLSU without any discussion/consent and ceased all negotiations with IBLSA (copy enclosed with complaint). This recognition also is in clear violation of the existing Procedural Agreement and in addition violates section 38 of the EReA. In other words, the employer has deliberately derecognized the IBLSA.
8. 507. Lastly, the complainant informs that the President of the IBLSU previously occupied the same post when he was a member of the IBLSA but was dismissed by the union due to his close collaboration with the company. Furthermore, the IBLSA is struggling very hard for the employer to resume negotiations, whereas the IBLSU keeps silent. This strategy of the employer has been clearly planned by the President of the IBLSU and the company.
9. 508. In view of the above, the FTU has good reasons to believe that the acts and doings of the company clearly infringe ILO Conventions Nos 87 and 98.

B. The Government’s reply

1. 509. In a communication dated 21 March 2013, the Government submits the following information concerning the two complaints.

Blue Lagoon Beach Hotel

1. 510. Following representations made to the Ministry of Labour, Industrial Relations and Employment by the Organisation of Hotel, Private Club and Catering Workers’ Unity affiliated to the FTU, on 7 May 2012 and 23 November 2012, as well as issues raised by the FTU in its complaint to the ILO, action was taken at the level of the Conciliation and Mediation Section (CMS) and the Inspection and Enforcement Section (IES) of the Ministry with the employer. The outcome of the Ministry’s inquiry and intervention is as follows:
   • ■ Alleged compulsory notification on ground of illness for every consecutive day of absence: Inquiry revealed that the complaint was not founded and that notification was required on the first day of absence or at the latest on the second day in accordance with the Catering and Tourism Industries (Remuneration Order) Regulations 2004 (GN No. 178 of 2004, as amended).
   • ■ Refusal of management to allow a female worker alleging to be victim of a criminal case from seeking police assistance: The general manager denied this allegation.
   • ■ Late payment of wages: According to management, late payment of wages occurred only in the month of September 2011, due to a technical problem which cropped up at the level of the bank whereby the workers could not withdraw their money. No such problem has occurred ever since.
   • ■ No open-door policy by management to listen to the grievances of the workers: Inquiry revealed that this was not the case as management practised an open-door policy. Workers wishing to voice out their problems could contact the General Manager informally through the Secretary who would then fix a meeting.
   • ■ Introduction of cameras within the hotel with a view to scrutinizing the workers: According to management, the aim of camera installations was not to control the workers’ movements but rather for security reasons concerning clients. It was also one of the requirements of the tourism authority falling under the jurisdiction of the Ministry of Tourism and Leisure.
   • ■ Dismissal of five members of the Organisation of Hotel, Private Club and Catering Workers’ Unity in April 2012: Five workers who were involved in the theft of foodstuff were suspended and appeared before a disciplinary committee to answer the charges levelled against them. Subsequently, they were dismissed on 25 April 2012 on grounds of serious misconduct. The workers registered a complaint at the IES in September 2012, and their case was referred to the Industrial Court on 28 February 2013 for a claim of compensation for unjustified termination of employment.
   • ■ Interdiction of trade union meetings within the premises of the hotel during rest time at 3 p.m.: Management informed that trade union meetings were still possible within the company’s premises during lunch time as well as at 3 p.m. or 4 p.m. Workers as well as workplace representatives met on the site of work confirmed the employer’s version.

Ireland Blyth Ltd

1. 511. The Government indicates that, on 6 April 2012, the IBLSA reported a labour dispute to the CCM against the company on the grounds that the company was not complying with the agreement reached on 19 December 2011 before the ERT. The dispute was not resolved, as the company insisted that ongoing negotiations with the IBLSA would only continue after the signature of a new Procedural Agreement with the IBLSA, while the IBLSA maintained that negotiations regarding ongoing issues on terms and conditions of employment should continue until such an agreement was reached.
2. 512. The Government further indicates that, on 11 April 2012, the IBLSA reported another dispute to the CCM as to whether the company should schedule meetings to discuss conditions of employment as and when requested by the trade union. At a conciliation meeting held at the level of the CCM in October 2012, the company agreed to open negotiations on the Procedural Agreement in the first instance, and then to proceed with normal negotiations regarding conditions of employment of the employees. The CCM, thereupon, reported that the matter in dispute had been resolved to the satisfaction of both parties.
3. 513. As regards IBLSU’s application for registration, the Government observes that, according to information obtained from the Registrar of Associations, it was submitted on 24 March 2011 and the IBLSU was registered on 25 April 2011. Under the EReA, a trade union is being defined as an association of persons, whether registered or not, having as one of its objects the regulation of employment relations between workers and employers. Section 4 of the EReA provides that any trade union shall, not later than 30 days after the date of its formation, apply to the Registrar of Associations for registration. In the Government’s view, in spite of the fact that IBLSU only applied for its registration on 24 March 2011, it already had a legal status on 23 March 2011 contrary to the averment of the complainant.
4. 514. The Government states, however, that the recognition of the IBLSU appears to be in violation of the Procedural Agreement signed between the company and the IBLSA, which was still in force as at March 2011. Its section 3(2) provided that “the company undertakes not to grant recognition to another union, unless it is asked to do so by the IRC in accordance with the provisions laid down in the Industrial Relations Act 1973”.
5. 515. Moreover, the Government indicates that section 36 of the EReA provides for the procedure to be followed by a trade union and the documents to be submitted when applying for recognition, including a copy of the certificate of registration. The IBLSU could not have produced a copy of its certificate of registration, which was only issued on 25 April 2011 by the Registrar of Associations. Hence, the application of the IBLSU for recognition was not in order.
6. 516. The Government also points out that the recognition of the IBLSU by the company goes against the spirit of section 37(5) of the EReA, which provides that an employer may recognize a trade union having less than 30 per cent membership only where there exists no recognized trade union. The Act is, however, silent as to whether an employer can give such recognition even where a trade union having less than 30 per cent membership had been given voluntary recognition.
7. 517. Furthermore, the Government informs that, according to the employer: (i) the Procedural Agreement was signed between the parties on 16 May 2007, following the recognition of the IBLSA (affiliated to the FTU); (ii) upon a request made on 23 March 2011, the IBLSU was granted recognition by the company to represent the same category of employees as the members of the IBLSA, in view of the fact that the request clearly indicated the wish of a number of workers of the same category to form a new trade union; (iii) it was in pursuance of the spirit of good industrial relations and the principles enunciated in the EReA that the company granted recognition to the IBLSU, despite the fact that the trade union had not been registered and that it had less than 30 per cent membership in the undertaking; (iv) at the time of the application for recognition by the IBLSU, the IBLSA also had less than 30 per cent membership in the undertaking; (v) following the decision of the company to recognize the IBLSU and to invite the two unions to joint negotiations, the IBLSA filed a case with the ERT; (vi) on 19 December 2011, an agreement was reached between the parties before the ERT whereby there would be no other parties present during the ongoing negotiations between the IBLSA and the company, without negating the possibility of the company to negotiate with other unions on other matters; (vii) on 27 January 2012, pursuant to Article 13 of the Procedural Agreement, the company gave three months’ notice to the IBLSA for termination of the Procedural Agreement with effect from 28 April 2012, in view of the fact that it was made under the Industrial Relations Act (repealed and replaced by the EReA as from February 2009) and had become obsolete; (viii) the IBLSA refusal to join negotiation with the IBLSU is in breach of paragraphs 98, 112, 113, 125 and 126 of the Code of Practice of the Fourth Schedule to the EReA; (ix) by seeking to prevent the recognition of another union, the IBLSA is acting in breach of Article 2 of ILO Convention No. 87, which guarantees the freedom of workers to join associations of their own choice; and (x) the complaint is unfounded and in breach of local legislation and international treaties.
8. 518. In addition, according to the information submitted by the company through the Government, the recognition of the IBLSU and the Procedural Agreement are two concurrent but distinguishable matters involving the IBLSA which need to be dealt with separately.
9. 519. As regards the recognition of the IBLSU, the company indicates that: (i) a copy of its request for recognition was duly sent to the IBLSA whose only comment was that the IBLSU was not a registered union; (ii) upon being forwarded the registration documents by the IBLSU, the company granted recognition to the IBLSU and invited the two unions to joint negotiations; (iii) the employer terminated the obsolete Procedural Agreement and has since invited the IBLSA to start negotiations with a view to drafting a new procedural agreement under the revised legislation; (iv) however, in bad faith and in breach of the EReA, the IBLSA has since refused categorically to constitute a joint negotiating panel with the IBLSU, although its position is detrimental to the workers; (v) consequently, the employer has not been able to conduct negotiations in a meaningful manner and is currently obliged to consult each union individually for any issue which concerns the workers; (vi) the complaint and the previous conduct of the IBLSA is an obvious attempt to force the employer not to recognize a trade union in breach of sections 29 and 30 of the EReA; (vii) the IBLSA is motivated by the desire to be the sole recognized trade union in the company which may be equated to a closed shop agreement which is specifically prohibited under section 34 of the EReA, especially in the face of the clear wish of workers to form another union; (viii) the refusal of the IBLSA to recognize or join negotiations with the IBLSU is tainted with bad faith and equivalent to an “unfair labour practice” as it undermines the bargaining process within the company; (ix) the extremely serious allegations that the IBLSU is controlled by and/or affiliated directly or indirectly with management are baseless and strongly refuted; and (x) the IBLSA has not submitted any evidence of illicit links between the IBLSU and the employer, other than making a derogatory comment on the IBLSU President.
10. 520. As regards the Procedural Agreement, the company indicates that: (i) the Procedural Agreement was signed in 2007 for a minimum duration of three years, renewable thereafter until termination notice of three months is given by either party; (ii) in 2008, new labour legislations were passed in Mauritius, which rendered the Procedural Agreement made under the repealed legislation obsolete; (iii) consequently, on 27 January 2012, pursuant to its section 13, the employer gave notice of termination of the Procedural Agreement for termination on 28 April 2012; (iv) on 13 August 2012, the IBLSA sent a letter to the company requesting the parties to start discussions on a Procedural Agreement with the IBLSA; (v) the stand of the company that negotiations must be done with the individual company instead of IBLSU as a group, has been accepted by the IBLSA; (vi) the company has always been eager, is still keen and in fact has started negotiations on the establishment of a new Procedural Agreement; (vii) the IBLSA has lodged the present complaint based on a breach of a Procedural Agreement, which the IBLSA has itself accepted as being terminated, since negotiations have started for the drafting of a new Procedural Agreement; (viii) the cases before the ERT referred to by the IBLSA deal with the negotiations between the parties with regard to the Procedural Agreement and/or conditions of employment and are in no manner connected with the present complaint which concerns the recognition of another union; (ix) the IBLSA has chosen to take the adversarial route by constantly challenging the company before the legal forums (on 4 May 2011, dispute submitted to the ERT and withdrawn following agreement reached on 19 December 2011 that the ongoing negotiations between the company and IBLSA should prevail without negating the possibility of the company to negotiate with the other union on other matters; on 6 April 2012, dispute declared to the CCM on the details of the agreement reached before the ERT but not resolved; on 11 April 2012, dispute declared to the CCM requesting for meetings to be scheduled to discuss conditions of employment and resolved following agreement of the parties that negotiations on the Procedural Agreement should start in the first instance, prior to discussing other conditions of employment; on 26 June 2012, the IBLSA applied to the ERT under section 73 of the EReA for interpretation of award but withdrew its application after its attention was drawn to the fact that the agreement of December 2011 did not constitute an award; and on 16 July 2012, complaint filed with the Committee); (x) in the company’s view, the IBLSA seems more eager to publicize the matter than to engage in meaningful and healthy negotiations with the company on the Procedural Agreement.

C. The Committee’s conclusions

1. 521. The Committee notes that, in the present case, the complainant alleges: (1) the dismissal of the General Secretary and of four members of the Organisation of Hotel, Private Club and Catering Workers’ Unity by the Blue Lagoon Beach Hotel as well as the interdiction of all trade union meetings within the premises and interdiction of all workplace representatives to communicate at the seat of the trade union during working hours; and (2) the recognition by Ireland Blyth Ltd of a new trade union (IBLSU) for collective bargaining purposes, in violation of the Procedural Agreement signed between the company and IBLSA and the applicable legislation.

Blue Lagoon Beach Hotel

1. 522. The Committee notes that the complainant indicates that the Organisation of Hotel, Private Club and Catering Workers’ Unity, a trade union affiliated to the FTU, has been legally recognised by the hotel since 1999. According to the complainant, after the appointment of a new general manager in 2011, industrial relations started to deteriorate following several unilateral measures. The Committee observes that certain measures alleged by the complainant concern general terms and conditions of work and employment, and recalls that the mandate of the Committee consists in determining whether any given legislation or practice complies with the principles of freedom of association and collective bargaining laid down in the relevant Conventions [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition (revised), 2006, para. 6]. The Committee thus considers that certain issues, such as the late payment of wages, notification of subsequent sick leave, the general matter of installation of cameras in the hotel, and no open-door policy of management towards the workers, are outside the Committee’s specific mandate, which is confined to violations of trade union rights. The Committee will thus only examine those violations alleged by the complainant that it considers within its mandate.
2. 523. In this regard, the Committee notes the complainant’s allegation that: (i) in April 2012, the management filed false criminal charges for unlawful removal of foodstuff from the hotel against the General Secretary and four members of the Organisation of Hotel, Private Club and Catering Workers’ Unity (Deepak Dassoo, Denis Manikion, Rakesh Judah, Ramjeeatoo Jootoo and Suresh Goomany) and has subsequently dismissed all of them; and (ii) the company has unilaterally prohibited all trade union meetings within its premises during rest time in the workers’ mess room, and all workplace representatives to communicate at the seat of the trade union during working hours (these rights existed since 1999). The complainant believes that the acts and doings of the hotel clearly infringe Conventions Nos 87 and 98.
3. 524. The Committee notes that the Government indicates that, following representations made to the Ministry of Labour, Industrial Relations and Employment by the Organisation of Hotel, Private Club and Catering Workers’ Unity, on 7 May and 23 November 2012, as well as the complaint presented to the ILO, action was taken at the level of the CMS and the IES of the Ministry with the employer. The Committee notes the Government’s statement that the outcome of the Ministry’s inquiry and intervention was as follows: (i) as regards the dismissal of one union leader and four union members in April 2012, five workers who were involved in the theft of foodstuff were suspended, appeared before a disciplinary committee to answer the charges levelled against them and were subsequently dismissed on 25 April 2012 on grounds of serious misconduct. The workers registered a complaint at the IES in September 2012, and their case was referred to the Industrial Court on 28 February 2013 for a claim of compensation for unjustified termination of employment; and (ii) as regards the interdiction of trade union meetings within the premises of the hotel during rest hours, the management informed that trade union meetings were still possible within the company’s premises during lunch time as well as at 3 p.m. or 4 p.m. Workers as well as workplace representatives met on the worksite confirmed the employer’s version.
4. 525. As regards the dismissal of five trade unionists in April 2012 due to serious misconduct in the form of theft of foodstuff, the Committee notes that the Government does not provide any direct observations on the serious allegation of the complainant that the criminal charges filed were false and that the trade union leader and four union members have been “framed” by management. The Committee cannot but express deep concern at the indication in the police report, supplied by the complainant as evidence in relation to this matter, according to which one of the three security officers who was stated to have received foodstuff from the five kitchen staff and trade unionists, had subsequently made a declaration that the above statement was made under duress and threats from the General Manager. The Committee recalls that one of the fundamental principles of freedom of association is that workers should enjoy adequate protection against all acts of anti-union discrimination in respect of their employment, such as dismissal, demotion, transfer or other prejudicial measures. This protection is particularly desirable in the case of trade union officials because, in order to be able to perform their trade union duties in full independence, they should have a guarantee that they will not be prejudiced on account of the mandate which they hold from their trade unions. The Committee has considered that the guarantee of such protection in the case of trade union officials is also necessary in order to ensure that effect is given to the fundamental principle that workers’ organizations shall have the right to elect their representatives in full freedom. One way of ensuring the protection of trade union officials is to provide that these officials may not be dismissed, either during their period of office or for a certain time thereafter except, of course, for serious misconduct. In this regard, the Committee has always pointed out that the principle that a worker or trade union official should not suffer prejudice by reason of his or her trade union activities does not necessarily imply that the fact that a person holds a trade union office confers immunity against dismissal irrespective of the circumstances [see Digest, op. cit., paras 799, 804, 801].
5. 526. In view of the serious nature of the complainant’s allegations, the Committee requests the Government to institute an independent investigation into the alleged acts of anti-union discrimination suffered by the above trade unionists so as to ascertain their veracity, and to provide detailed information on its outcome. Should it be found in the course of the inquiry that the five dismissals were based on false charges and thus anti-union in nature, the Committee requests the Government to take the necessary steps to ensure that the union leader and the union members are fully reinstated without loss of pay. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. The Committee requests to be kept informed of any developments in this respect. Noting also that the case is currently before the Industrial Court for a claim of compensation for unjustified termination of employment, the Committee requests the Government to keep it informed of any progress made in this regard and transmit a copy of the judgment as soon as it has been handed down.
6. 527. Regarding the possibility of holding trade union meetings within the premises of the hotel during rest hours, the Committee observes the contradictory versions of the parties, as the complainant organization alleges that they have been prohibited by management, whereas the Government (after inquiry at the worksite) informs that, according to the management and as confirmed by some workers and workplace representatives, trade union meetings were still possible within the company’s premises during lunch time as well as at 3 p.m. or 4 p.m. While the Committee has insufficient information available to it to draw any conclusion in this regard, it wishes nevertheless to express its concern that, according to the written documents supplied by the complainant in relation to this matter, three subsequent requests submitted by the union (in the period from 11 April to 7 May 2012) for the holding of trade union meetings at 3 p.m. or 3.30 p.m. in the workers mess room were refused by management due to inconvenient date and time. The Committee generally recalls that the right of occupational organizations to hold meetings to discuss occupational questions is an essential element of freedom of association. Observing that the company has authorized the use of its premises for the holding of trade union meetings for more than ten years, the Committee emphasizes that the change of a longstanding policy without imperative reasons involving the withdrawal of previously granted facilities would not be conducive to harmonious labour relations. The Committee requests the Government to intercede with the parties with a view to finding a mutually acceptable solution and to keep it informed of any developments in this regard.
7. 528. As regards the allegation that the company has prohibited all workplace representatives to communicate with workers at the trade union office during working hours, the Committee, observing that the Government does not respond to this allegation, recalls that, for the right to organize to be meaningful, the relevant workers’ organizations should be able to further and defend the interests of their members, by enjoying such facilities as may be necessary for the proper exercise of their functions as workers’ representatives [see Digest, op. cit., para. 1106]. The Committee further reiterates that, while account should be taken of the characteristics of the industrial relations system of the country, and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions [see Digest, op. cit., para. 1110]. The Committee expects the Government to take the necessary measures to ensure respect for the principles enunciated above in the future.

Ireland Blyth Ltd

1. 529. The Committee notes the complainant’s allegations that:
2. 530. The Committee notes from the Government’s reply that, according to the employer:
3. 531. In addition, the Committee notes the Government’s view that:
4. 532. The Committee notes that, according to section 3(2) of the Procedural Agreement, the company has undertaken not to grant recognition to another union unless it is asked to do so by the IRC. It also observes that the Procedural Agreement was signed in 2007 for a minimum duration of three years, renewable thereafter until termination notice of three months is given by either party (section 13), was only terminated by the company on 27 January 2012, effective from 28 April 2012. While noting the reference by the company to the adoption of the EReA in 2008, the Committee duly observes the Government’s assessment that the Procedural Agreement was still valid as at March 2011. The Committee further observes the Government’s consideration that the recognition of the IBLSU was contrary to the Procedural Agreement concluded between the company and the IBLSA. In these circumstances, the Committee regrets the infringement of the Procedural Agreement by the company and recalls that agreements should be binding on the parties. It reiterates that collective bargaining implies both a give-and-take process and a reasonable certainty that negotiated commitments will be honoured, at the very least for the duration of the agreement, such agreement being the result of compromises made by both parties on certain issues, and of certain bargaining demands dropped in order to secure other rights which were given more priority by trade unions and their members. If these rights, for which concessions on other points have been made, can be cancelled unilaterally, there could be neither reasonable expectation of industrial relations stability, nor sufficient reliance on negotiated agreements [see see Digest, op. cit., paras 939 and 941]. The Committee expects that the Government will take the necessary steps to ensure the respect of the principle enunciated above in the future.
5. 533. The Committee does observe, however, that the IBLSU has since been recognized by the company for two-and-a-half years now, and that according to the Government and the company (no information has been provided by the complainant), at the time of the recognition of the IBLSU, both the IBLSA and the IBLSU had less than 30 per cent membership in the undertaking (under section 36 of the EReA, 30 per cent is the threshold of worker support as of which the employer’s recognition as a bargaining agent becomes an entitlement and failing which the recognition remains voluntary). Taking into account that the constitution of a joint bargaining panel has failed due to divergences between the two existing enterprise-level unions and observing that the main request of the IBLSA when challenging the company before various legal forums has always been to resume negotiations, the Committee recalls that, where, under a system for nominating an exclusive bargaining agent, there is no union representing the required percentage to be so designated, collective bargaining rights should be granted to all the unions in this unit, at least on behalf of their own members. It also emphasizes that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided [see Digest, op. cit., paras 976 and 937]. The Committee requests the Government to make every effort to intercede with the parties to find a mutually satisfactory solution, in order to ensure that genuine and constructive negotiations between the company and the IBLSA are swiftly resumed, with a view to regulating terms and conditions of employment by means of collective agreements.
6. 534. As regards the allegations that the IBLSU, and especially its President and former IBLSA President, collaborates and has close ties with the management and that the IBLSU recognition was a collusive strategy of the IBLSU President and the employer, an allegation strongly refuted by the company, the Committee considers that the information available to it is insufficient to show that acts of anti-union interference, such as the creation of a puppet union and the domination of the IBLSU by the company have occurred. The Committee wishes to recall, however, as a general matter, that both the government authorities and employers should refrain from any discrimination between trade union organizations, and that Article 2 of Convention No. 98, ratified by Mauritius, establishes the total independence of workers’ organizations from employers in exercising their activities [see Digest, op. cit., paras 343 and 855]. In view of the serious nature of the complainant’s allegation, the Committee requests the Government to institute an independent investigation into the alleged acts of anti-union interference so as to determine their veracity, and to provide detailed information on its outcome.

The Committee’s recommendations

1. 535. In the light of its foregoing conclusions, the Committee invites the Governing Body to approve the following recommendations:

   Blue Lagoon Beach Hotel

   • (a) The Committee requests the Government to institute an independent investigation into the alleged acts of anti-union discrimination suffered by the General Secretary and four members of the Organisation of Hotel, Private Club and Catering Workers’ Unity (Deepak Dassoo, Denis Manikion, Rakesh Judah, Ramjeeatoo Jootoo and Suresh Goomany) so as to ascertain their veracity, and to provide detailed information on its outcome. Should it be found in the course of the inquiry that the five dismissals were based on false charges and thus anti-union in nature, the Committee requests the Government to take the necessary steps to ensure that the union leader and the four union members are fully reinstated without loss of pay. If reinstatement is not possible for objective and compelling reasons, the Government should ensure that the workers concerned are paid adequate compensation which would represent a sufficiently dissuasive sanction for anti-union dismissals. The Committee requests to be kept informed of any developments in this respect. Noting also that this case is currently before the Industrial Court for a claim of compensation for unjustified termination of employment, the Committee requests the Government to keep it informed of any progress made in this regard and to transmit a copy of the judgment as soon as it has been handed down.
   • (b) Observing that the company has authorized the use of its premises for the holding of trade union meetings for more than ten years, the Committee, emphasizing that the change of a longstanding policy without imperative reasons involving the withdrawal of previously granted facilities would not be conducive to harmonious labour relations, requests the Government to intercede with the parties with a view to finding a mutually acceptable solution and to keep it informed of any developments in this regard.
   • (c) As regards the allegation that the company has prohibited all workplace representatives to communicate with workers at the trade union office during working hours, the Committee recalls that, while account should be taken of the characteristics of the industrial relations system of the country and while the granting of such facilities should not impair the efficient operation of the undertaking concerned, workers’ representatives in the undertaking should be afforded the necessary time off from work, without loss of pay or social and fringe benefits, for carrying out their representation functions, and expects the Government to take the necessary measures to ensure respect for this principle in the future.

   Ireland Blyth Ltd

   • (d) Regretting the infringement of the Procedural Agreement by the company and recalling that agreements should be binding on the parties, the Committee expects that the Government will take the necessary steps to ensure the respect of this principle in the future.
   • (e) The Committee requests the Government to make every effort to intercede with the parties to find a mutually satisfactory solution, in order to ensure that genuine and constructive negotiations between the company and the IBLSA are swiftly resumed, with a view to regulating terms and conditions of employment by means of collective agreements.
   • (f) The Committee requests the Government to institute an independent investigation into the alleged acts of anti-union interference so as to determine their veracity, and to provide detailed information on its outcome.