Individual Case (CAS) - Discussion: 2015, Publication: 104th ILC session (2015)

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



A Government representative provided the Conference Committee with an overview on the application of the Convention. He recalled that the Government had ratified the Convention shortly after independence in 1969. At that time, the provisions of the Convention had been implemented through Section 13 of the Constitution, which provided for the protection of freedom of assembly and association, while disputes concerning industrial relations were left to the parties. The Industrial Relations Act (IRA), enacted in 1973, had institutionalized the regime of industrial relations and brought about fundamental changes by providing new mechanisms and procedures for recognizing trade unions and enabling collective bargaining and industrial action, establishing institutional mechanisms for dispute resolution and arbitration, and introducing the right to strike although subject to some specific procedures. The Employment Relations Act (ERA) had been introduced in 2008 in order to comply with the provisions of the Convention and to remedy the shortcomings of the IRA in the promotion of collective bargaining. The ERA set out the conditions for the development of collective bargaining in a structured manner and aimed to protect and enhance the democratic rights of workers, including migrant workers, and trade unions rights, as well as to boost collective bargaining, while the focus had shifted towards the principle of voluntary settlement and peaceful resolution of disputes. The ERA had been amended in 2013 in order to further consolidate the process of collective bargaining. In particular, the procedure for recognizing trade unions’ bargaining power had been reviewed; the reporting of labour disputes concerning wages and conditions of employment had been limited in the event that a collective agreement was in force; and a conciliation service was now provided by the Minister upon the request of parties to a labour dispute at any time before a lawful strike took place. Any agreement reached following such conciliation would have the effect of a collective agreement.

Turning to the observations of the Committee of Experts, he noted that, in the absence of complaints made by any trade union to the Ministry of Labour, it was impossible for the Government to carry out an investigation into alleged anti-union discrimination. He added that it would be useful, in that regard, to receive additional information on the workers’ organization that had transmitted the complaint to the International Trade Union Confederation (ITUC), alleging that the contracts of 37 female workers at the “la Colombe centre” had been amended after they joined a union. Concerning the allegations of refusal to bargain in good faith by the Mauritius Sugar Producers’ Association (MSPA) he noted that, following intervention by the Ministry of Labour, an agreement had been reached that satisfied both parties. He recalled that the Federation of Civil Service and Other Unions (FCSOU) had brought a complaint to the ILO on 10 December 2013 concerning the suspension of the President of the Mauritius Institute for Training and Development Employees Union (MITDEU). The ILO had been informed on 4 July 2014 that the case had been settled amicably by the parties and he welcomed the positive result achieved. He also referred to several cases of the Committee on Freedom of Association involving the Government, in several of which the Committee had noted with satisfaction that the parties concerned had reached an agreement on the dispute. He regretted that, despite the agreement reached, the International Organisation of Employers (IOE) and the Mauritius Employer’s Federation (MEF) had again submitted observations on the application of the Convention in September 2014. On the promotion of collective bargaining in export processing zones (EPZs), the textile sector and for migrant workers, he said that the Government encouraged the full development of voluntary negotiation concerning terms and conditions of employment between employers’ and workers’ organizations. He emphasized that there was no legal impediment in the ERA preventing EPZ workers or migrant workers from joining unions or engaging in collective bargaining. The Government intended to organize an awareness-raising campaign for the workers concerned, and he encouraged the increasing number of trade unions in the sector to take full advantage of the constructive legal framework to engage in and promote collective bargaining. He concluded by saying that the Government firmly believed that the provisions of its labour legislation were fully in line with its vision of providing a legal framework in which the rights, interests and welfare of workers were fully safeguarded, without jeopardizing a sound business environment.

The Employer members said that this was an ongoing case involving interference in collective bargaining. The country had an extensive system for collective bargaining and minimum employment standards. The National Remuneration Board promulgated orders on minimum wages and terms of employment in 30 sectors and periodically reviewed those orders to ensure that their terms remained appropriate. The Board was not a mediation or arbitration mechanism. Remuneration orders established a floor, and employers and workers subsequently bargained for better terms. If the parties bargained in good faith but could not agree, they could voluntarily agree to a dispute resolution procedure. While this framework was not in violation of the Convention, its practical implementation had been quite problematic. In 2010, the social partners in the sugar industry had negotiated a collective agreement, but there had been 21 areas of disagreement where the parties had defaulted to the terms set out in the remuneration order. Several weeks later, the National Remuneration Board had partially reviewed the remuneration orders that applied to the sugar industry, focusing on the 21 areas in which no agreement could be reached during collective bargaining. In 2012, the Committee on Freedom of Association had reminded the Government that recourse to public authorities like the National Remuneration Board should be voluntary. The Government had subsequently withdrawn the referral of the 21 issues to the National Remuneration Board in August 2012. However, once again in 2014, the same problems had arisen. Following the expiration of the collective agreement in the sugar industry, and after months of negotiations, the union had taken strike action. The employers and the union had subsequently concluded a collective agreement. The Government had then referred the unresolved issues to the National Remuneration Board, as it had done in 2010. The Government had also imposed arbitration on the social partners, which it was not permitted to do under national legislation. The Government’s interference in collective bargaining was wrong. The Employer members hoped that the Committee would reiterate that point.

The Worker members pointed out that EPZs were of great concern to trade unions, as they benefited from special incentives in order to attract investors. That said, the special status of EPZs could not justify limiting the right to bargain collectively. Recognition of that right applied to everybody, in the private and public sector alike. As in other such zones, there was no respect for freedom of association or the right to bargain collectively in the Port Louis EPZ. Between 2002 and 2012 the Committee of Experts had noted the total absence of trade unions, the very limited practice of collective bargaining, widespread anti-union discrimination, especially in the textile sector, the difficulty for workers and trade unions to meet and a decline in the number of collective agreements signed. Quite apart from harassment and intimidation of workers, employers had often established substitute unions in contravention of Convention No. 98 and the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). If the right to bargain collectively was not respected, then it was up to the Government to take concrete steps to promote it. The Worker members emphasized that an EPZ did not mean a zone without rights, and endorsed the request made by the Committee of Experts in that regard. The Committee of Experts had drawn attention to the Government’s interference in the bargaining process to set wages in the sugar cane sector, which it justified on the grounds of an imminent threat of strike action which had to be avoided if it was to honour its commitments to the European market. 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. According to the principles of the Committee on Freedom of Association, compulsory arbitration was permitted only in specific instances, namely, in the event of an acute national emergency, 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. In the present instance, the Government’s interference did not meet these criteria and was therefore unacceptable. Unfortunately, in the belief that their national circumstances called for economic stabilization policies, increasing numbers of governments had adopted measures to restrict or prevent wages from being freely determined by collective bargaining. In this regard, the Conference Committee had already stressed that if, within the context of a stabilization policy, wage rates could not be fixed freely by collective bargaining, restrictions could be imposed as an exceptional measure and only to the extent necessary, without exceeding a reasonable period, and should be accompanied by adequate safeguards to protect workers’ living standards. The Worker members stressed that such measures could only be adopted if they were rendered necessary by compelling reasons of national economic interest. Inasmuch as the sugar cane sector made up only 6 per cent of the country’s economic activity, the Government’s interference in the collective bargaining was unjustifiable.

The Employer member of Mauritius indicated that the reality in the country was not conducive to the practice of collective bargaining. While the Government had established legislation on collective bargaining, there remained some significant deficits. The legislation failed to meet its objective of providing a framework for collective bargaining and was not accompanied by appropriate policies and properly functioning institutions. The ERA stipulated that collective bargaining was mandatory and conditional on trade union membership only, which was not in conformity with the Convention. In the private sector, 88 per cent of workers had decided not to join a trade union, and an employer could not therefore freely negotiate with duly chosen workers’ representatives. The Government’s interference in fixing of private sector wages and its annual raising of salaries under the Additional Remuneration Act were problematic and limited the scope of collective bargaining. In 2010, employers in the sugar industry had been forced to sign a collective agreement, and issues not resolved during negotiations had been referred to the National Remuneration Board. Despite assurances that such interference would be discontinued, it had re-occurred in December 2014. In the context of negotiating a collective agreement, workers had organized a strike, and employers had respected their right to do so. However, the Government had intervened, requiring the signature of a collective agreement that did not take into account the concerns of employers. The trade union demands that had not been accepted during collective bargaining had again been referred to the National Remuneration Board or to arbitration. The Government’s interference in voluntary collective bargaining was unacceptable, and dispute resolution machinery was not effective in resolving industrial disputes. Allegations relating to a decrease in the number of collective agreements in EPZs were unfounded. Labour laws were applicable to that sector, and workers’ fundamental rights were protected.

Social dialogue structures existed in Mauritius, and the country’s employers had had the opportunity to exchange views with the new Minister of Labour. The new Government had set out its priorities and had taken a decision to engage in consultation with the social partners with the aim of revising labour legislation. He reiterated the call for a revision of those labour laws that were currently holding back growth and job creation. Mauritius had ambitions to become a high-income country; in order to do so, it must have effective and appropriate means of revising labour legislation. The Committee was invited to formulate clear recommendations that urged the Government to cease violations of Article 4 of the Convention, to conduct a regulatory impact assessment of national labour legislation, to cease undue interference in private sector wage fixing, to engage in dialogue with the social partners, and to request technical assistance from the ILO with a view to adapting national legislation to bring it into conformity with ILO Conventions.

The Worker member of Mauritius said that, despite current labour legislation, in practice the rights of workers were not respected. Trade unions had been calling for the Government to revise its legislation. New revisions of legislation should not be perfunctory, and the Ministry of Labour needed to pay attention to protecting workers, particularly as the existing protection for trade unions and trade union leaders was contained in a code of practice that was not binding. Anti-union discrimination still existed in the country, despite legal protection, and contract workers feared dismissal for engaging in trade union activity. While collective bargaining existed in law, it did not exist in practice. There was also a lack of social dialogue in the country. In the public sector, terms and conditions of service and salary were being imposed. Some workers in that sector were paid low wages, including below the minimum wage. That needed to be addressed by the Government, including through collective bargaining. There was no voluntary negotiation in the public sector. Trade unions could express their views to the body that regulated terms and conditions, but that body then took its own decisions. There was also difficulty with regard to the organization of migrant workers in EPZs. Such workers were not free to join unions as they could feel threatened and could face deportation. He called for firm measures to be taken to ensure that the Convention was applied in Mauritius.

The Employer member of South Africa said that the Government should respect the right to collective bargaining. It was perplexing that the application of the Convention still merited discussion more than 45 years after its ratification. He urged the Government to implement the provisions of the Convention fully.

The Worker member of Norway, speaking on behalf of the Worker members of the Nordic countries and Estonia, said that trade unions in Mauritius were only entitled to recognition as bargaining agents for bargaining units in an enterprise or in an industry, where they must have the support of not less than 30 per cent of the workers in the unit concerned. Recognition by an employer of the main unions represented at an enterprise, or the most representative of those unions, formed the very basis for any procedure concerning collective bargaining. That legal provision had a serious impact on the right of minority unions to bargain on behalf of their members. He considered that, if no single union met the representativity criteria established in law, collective bargaining rights should be granted to the individual unions in that unit, at least on behalf of their own members. The Government should therefore amend its legislation in order to allow minority unions to bargain on behalf of their members. He urged the Government to promote the full development and utilization of collective bargaining mechanisms and laws so as to increase the number of workers who could be covered by effective collective bargaining agreements. That was particularly important for vulnerable workers employed in the country, including women workers in the textile sector and migrant workers.

The Worker member of Mali said that his statement was supported by the Worker members of Liberia, Nigeria and Sierra Leone. Maintaining the country’s annual growth rate at more than 3 per cent had been possible thanks to solid contributions from the workforce and the country’s EPZs, which were treated as enclaves with their own sovereignty, shielded from the obligations and requirements arising from the need to respect human and trade union rights. Despite the existence of legislation, the tendency in practice was that workers could not rely on the Government to support them in claiming their trade union rights in such zones. The authorities and employers prevented workers from organizing to bargain collectively, and levels of collective bargaining had fallen by 70 per cent since 2009. Trade union organizations were being refused access to industrial sites by employers in the majority of cases, which explained why the rate of unionization in EPZs was less than 12 per cent. It was not reasonable to welcome investors and their enterprises enthusiastically unless the rights of workers, including the migrant workforce, were promoted. Without such rights, the country’s workers and their families would not have benefited from investments by the time the investors left. He welcomed the first steps taken by the Government with a view to introducing a mechanism to fix a minimum wage and took note of amendments made to labour legislation to strengthen penalties for anti-union discrimination. The Government must lift all barriers to collective bargaining and establish a strong collective bargaining culture with respect for social dialogue, especially in the EPZs. That would be the only way to share the fruits of economic growth equitably so as to improve the living standards of the population.

The Worker member of the United Kingdom noted that there were problems of anti-union hostility in EPZs. In the case of reprisals for union activity, the law provided little protection. National legislation did not allow for individuals to be reinstated if they had been dismissed on account of union activity. Furthermore, anyone who was involved in a strike that did not meet the requirements of the legal framework would face dismissal, with limited rights to seek a legal remedy if the dismissal had not been considered justifiable. There had been several examples of anti-union discrimination affecting not only workers in the EPZs and women workers, but also workers in the sugar industry. In the context of the negotiations between the Mauritius Sugar Producers’ Association and the trade unions’ joint negotiating panel, an agreement had been reached relating to requests for a pay increase following recourse to strike action. However, the workers had lost pay for the duration of their strike action, and union members had not received their end-of-year bonus as a result of the strike. The Government had committed itself to increasing fines and penalties for anti-union discrimination but it must take further steps to ensure that its legislation properly reflected its international obligations.

The Government representative recalled the measures that had been taken, over a number of years, by the Government to give effect to the Convention and to respond to the requests of the Committee of Experts, including amendments to the ERA, measures to protect against acts of interference in workers’ and employers’ organizations, and the replacement of the Export Processing Zone Act. He emphasized that there was no impediment in the ERA, as amended, preventing workers in EPZs or migrant workers from joining unions or engaging in collective bargaining. It was therefore up to trade unions to use the available legal framework to engage in and promote collective bargaining in all sectors. The Government had not intended to undermine collective bargaining. The referral of issues to the National Remuneration Board had taken place in a very specific context, as a strike in the sugar industry at that time would have had a negative impact on the country’s economic situation. It was not the policy of the Government to request the National Remuneration Board to intervene in cases where a final collective agreement had been concluded. Concerning the referral of the dispute between the joint negotiating panel and the Mauritius Sugar Producers’ Association to arbitration, he indicated that, following negotiations, no collective agreement had been reached, and both parties had referred the dispute to the Commission for Conciliation and Mediation. No agreement had been reached at the level of that Commission, and the panel had opted to take strike action, which would have had negative economic effects. Accordingly, the Minister of Labour, acting under section 79a of the ERA, had brought the two parties to the negotiating table and an interim collective agreement had been reached. The dispute had then been referred to an arbitrator appointed by the Government, in the absence of agreement between the parties. With respect to compulsory arbitration, section 53 of the ERA contained only the duty to begin negotiations when served with notice, but legislation did not require the parties to conclude a collective agreement. Requiring the social partners to engage in collective bargaining did not contravene the Convention. He referred in this regard to Report No.  68 of the CFA, Case No. 2149, (328th Report) indicating that it was not contrary to Article 4 of the Convention to oblige the social partners, in the context of encouraging and promoting the full development and utilization of collective bargaining machinery, to enter into negotiations on terms and conditions of employment. The Government would listen to the views of the social partners; the discussion had been a democratic exercise in tripartite dialogue. The Government would continue to take a transparent approach with respect to the application of the Convention and stood ready to consider any recommendation made by the Committee, with the support of technical expertise from the ILO. Any recommendations would be considered within the context of the ongoing review of labour legislation to which the Government had committed itself. In that regard, a technical committee had been set up and all stakeholders had been invited to make proposals to it with respect to the legislative review.

The Employer members noted the Government’s willingness to engage in discussion with the Committee. One example of how the National Remuneration Board had interfered in the collective bargaining process was the issue of motorcycle allowances in the sugar sector. Agreement had not been reached on that issue in the negotiation of the collective agreement, and subsequently it had been referred to the National Remuneration Board. It could be agreed that interference in collective bargaining was not a positive thing. While the legislation appeared to be adequate, the manner in which it was interpreted and applied in practice was not. The Employer members referred to Report No. 364 of the Committee on Freedom of Association, paragraph 697, in which that Committee had emphasized that the overall aim of Article 4 of the Convention was the promotion of good faith collective bargaining with a view to reaching an agreement on terms and conditions of employment. The Committee on Freedom of Association had indicated that such agreements must be respected and that public authorities should refrain from any interference which would restrict the right to bargain freely or impede the lawful exercise thereof. Collective bargaining, if it were to be effective, must assume a voluntary character and not entail recourse to measures of compulsion which would alter the voluntary nature of such bargaining. Not enough information was available on the situation in EPZs, and the Employer members expressed the hope that collective bargaining was being promoted in that sector. The Committee of Experts had requested additional information on the situation in that sector, and hopefully such information would be provided. The Employer members urged the Government to take steps to follow its own legislation, to stop interfering in the collective bargaining process and to stop referring issues on which the parties had not been able to reach agreement following collective bargaining to the National Remuneration Board.

While taking note of the information provided by the Government of Mauritius, the Worker members said that the case concerned not only the relevance of legislation, but also problems with its application in practice. They stressed the importance of respecting Convention No. 98, particularly its general principles, both in relation to EPZs and in terms of collective bargaining in the sugar cane industry. EPZ workers should be able to enjoy the right to bargain collectively, and the Government must take concrete steps to that end. That would send an important signal to EPZs around the world that they were not outside the law, despite the violations of workers’ rights that had too often occurred therein. The Government could only intervene in collective bargaining under certain specific circumstances that had been identified by the Committee. The way in which the Government had interfered in collective bargaining in the sugar industry had been clumsy. The Worker members invited the Government to give the social partners the full autonomy needed to negotiate collective agreements and to respect that autonomy. They also requested the Government to report to the Committee of Experts in 2015 on collective bargaining in EPZs and in the sugar industry.

Conclusions

The Committee took note of the statements made by the Government representative and of the discussion that ensued.

The Committee observed that the matters raised by the Committee of Experts concerned comments made by the International Trade Union Confederation (ITUC) relating to allegations of anti-union discrimination and the practical obstacles to collective bargaining in export processing zones, as well as the observations from the International Organization of Employers (IOE) and the Mauritius Employers’ Federation (MEF) related to alleged interference by the Government in the voluntary nature of collective bargaining, especially with respect to the sugar industry.

The Committee noted the Government representative’s indication that the 2008 Employment Relations Act was adopted with a view to establishing an industrial relations system to promote social progress and economic growth, protecting and enhancing the democratic rights of workers and trade unions, boosting collective bargaining and promoting the voluntary settlement and peaceful resolution of disputes. This Act was amended in 2013 to introduce the notion of a sole and exclusive bargaining agent and a conciliation service at the joint request of the parties. As regards the ITUC allegations of anti-union discrimination, the Government indicated that the information provided was insufficient for it to carry out an investigation and requested further particulars.

The Government had also provided information on the manner in which the dispute concerning the Mauritius Sugar Producers’ Association (MSPA) was handled, with outstanding matters being referred to the National Remuneration Board (NRB) but that subsequently, the Minister of Labour withdrew this referral, pursuant to an agreement reached by the parties. He added that it was not his Government’s intention to undermine collective bargaining, but rather that the referral was made in a very specific context with a view to avoiding a strike in the sugar industry. He further referred to the case before the Committee on Freedom of Association which had welcomed the agreement and, while observing that additional observations had been submitted by the IOE and the MEF in September 2014, had indicated that his Government was awaiting supporting evidence.

Finally, as regards to export processing zones (EPZs), the Government representative indicated that there was no legal impediment to collective bargaining for EPZ workers and that they would do everything to encourage and promote the full development and utilization of machinery for voluntary negotiation between employers’ and workers’ organizations in this sector, including increasing awareness-raising campaigns to sensitize workers on their rights.

Taking into account the discussion, the Committee urged the Government to:

• refrain from violating Article 4 of the Convention and avoid such violations in the future;
• cease undue interference in private sector collective bargaining by selectively reviewing the Remuneration Orders in response to the outcome of collective bargaining;
• engage in social dialogue with the social partners regarding collective bargaining and the Remuneration Orders; and
• 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 Government representative took note of the conclusions and assured the Committee that consideration would be given in the course of the ongoing reform of the labour legislation undertaken in consultation with the employers’ and workers’ organizations.