Direct Request (CEACR) - adopted 2021, published 110th ILC session (2022)

Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87) - Mauritius (Ratification: 2005)

Article 3. Right of workers’ organizations to organize their activities and formulate their programmes. In its previous comments, the Committee had requested the Government to amend the following provisions of the Employment Relations Act (ERA) 2008 and bring them into full conformity with the Convention:

• – Section 78(3) of the ERA, which provided that a ballot shall be successful where it obtains an absolute majority of the workers concerned by the dispute in the bargaining unit. The Committee had requested the Government to ensure that account is taken only of the votes cast in determining the outcome of the strike ballot. The Committee takes note of the Government’s indication that the provision at issue was amended and that the revised section 78(3) of the ERA now provides that the secret ballot shall be successful where it obtains the support of the “majority of workers in the bargaining unit concerned by the labour dispute”, instead of an absolute majority. The Committee recalls that, so as not to unduly limit the right of workers’ organizations to organize their activities, the legislative provisions requiring a vote by workers before a strike should ensure that account is taken only of the votes cast by those deciding whether to have recourse to a strike – whether across the workplace as a whole or in a particular bargaining unit – and not of all workers who are entitled to vote in that workplace or bargaining unit, and that any quorum requirement is fixed at a reasonable level. The Committee requests the Government to clarify whether the majority requirement set out in the revised section 78(3) entails a simple majority of the votes cast, and if so to indicate if there is any quorum requirement; but if not, the Committee reiterates its request to the Government to take steps to amend section 78(3) of the ERA so that only votes cast are counted in reckoning the majority.
• – Section 82(1)(b) which allows compulsory arbitration to be introduced at the initiative of the authorities, including the courts and section 82(1)(a) and (2) which allows the Prime Minister to apply to the Tribunal for an order for the establishment of a minimum service in light of the duration of a strike or lockout. The Committee takes note of the Government’s indication that section 82 of the ERA has not been amended. The Government underlines that Mauritius is a small island with few natural resources and that it relies on its human resources. It further indicates that where a strike threatens to affect an industry or a service or employment, the Government may apply to the Employment Relation Tribunal for the establishment of a minimum service unless it is provided under section 81 of the ERA on procedure agreement. While taking note of these indications, the Committee recalls that a system of compulsory arbitration which makes it possible to prohibit virtually all strikes, is acceptable only at the request of both parties to a dispute, and 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. The Committee recalls once again that the fact that a service, industry or employment may be affected by the duration of a strike does not in and of itself justify the introduction of a minimum service. The Committee reiterates its request to the Government to take the necessary measures to amend section 82(1)(b) of the ERA so that compulsory arbitration may only be imposed in the above-mentioned circumstances and to amend section 82(1)(a) and (2) of the ERA so that a minimum service may not be imposed for the mere reason that the duration of a strike may affect a service or industry or employment. The Committee requests the Government to provide information on any developments in this respect.

In its previous comments, the Committee had noted that sections 67 and 77(b) of the ERA, as amended in 2013, provide that labour disputes may not be reported, nor recourse to strike allowed, when a collective agreement is in force, and had requested the Government to provide information on any existing or envisaged compensatory procedures. The Committee takes note of the Government’s indication that when a collective agreement is in force and the parties have a dispute related to issues covered in the collective agreement, they can apply for a variation of the collective agreement under section 58 of the ERA, as amended in 2019. The Committee observes that this section provides that the parties may jointly vary a collective agreement in the occurrence of circumstances provided for in the agreement, or if there is a substantial change of circumstances that warrants such variation. It further provides that if a party refuses a variation of the agreement, any party may apply to the Employment Relations Tribunal for a variation of the agreement. The Tribunal shall determine an application within 60 days and an order made by the Tribunal is binding on the parties to the collective agreement. The Committee also observes that, as provided for in section 86 of the ERA, as amended in 2019, the Employment Relations Tribunal is an arbitration tribunal that, among other functions, interprets collective agreements, make awards and orders in relation to recognition, check-off agreement, agency shop order, minimum service and any other issues under the Act. The Committee requests the Government to keep it informed of any practical application of the provisions referred to above.