Individual Case (CAS) - Discussion: 2016, Publication: 105th ILC session (2016)

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



A Government representative indicated, with respect to collective bargaining in export processing zones (EPZs) and the textile sector, that seminars and talks were being conducted on an ongoing basis by the information, education and communication section of the Ministry of Labour targeting workers in different sectors of employment, including the EPZ and textile sectors. Between July 2015 and April 2016, 39 training and sensitization activities had been carried out and 312 male and 430 female employees of the EPZ and textile sector had benefited from these sessions, in which emphasis was placed on legal provisions and rights at work, including those pertaining to the right to collective bargaining and unionization as guaranteed in the labour legislation. Moreover, sensitization of workers on their rights at work, including those pertaining to collective bargaining and unionization, was also carried out on an ongoing basis during inspection visits at workplaces. For the period 2009–15, a total of 757 inspection visits had been carried out in EPZs, reaching out to some 102,127 local workers (38,376 men and 63,751 women). During the same period, 2,059 inspection visits had been carried out in undertakings employing migrant workers, who currently numbered about 30,468 (20,455 men and 10,013 women) working in the manufacturing sector. During these visits, the workers had been sensitized on their rights of unionization and collective bargaining. With regard to the issue of compiling statistics on collective agreements, since February 2009, the legislation had provided that all collective agreements should be registered with the Ministry of Labour within 30 days of the date of signature. The Government had transmitted to the Committee a full list of 62 collective agreements registered at the Ministry for the period May 2010 to May 2016, and it should be noted that four of those collective agreements applied to EPZs. The Government had also taken due note of the Committee’s recommendations regarding interference in collective bargaining and compulsory arbitration, and it should be noted that there had been no such intervention since. In addition, the labour law review currently under way, in consultation with the social partners, was expected to be finalized by the end of 2016. The recommendations of the Committee on how best to encourage and promote the full development of collective bargaining would, to the extent possible, be taken into account in this context. Finally, technical assistance in relation to the issues raised by the Committee would be sought from the ILO under the second generation Decent Work Country Programme, the preparation of which is under way.

The Employer members recalled that the Committee had last examined this case in 2015 and that since 1995 the Committee of Experts had made 11 comments on it. The 2016 comments of the Committee of Experts focused on the following three areas: anti-union discrimination; collective bargaining in EPZs; and interference by the Government in collective bargaining. With regard to the latter issue, the Employer members were surprised by the Government’s statement denying that such interference existed and remained concerned that interference persisted in collective bargaining. The country had an extensive system of collective bargaining and minimum employment standards. The National Remuneration Board (NRB) promulgated orders on minimum wages and terms of employment in 30 sectors and periodically reviewed those orders to ensure that their terms remained appropriate. 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 areas of disagreement where the parties had defaulted on the terms set out in the remuneration order. Several weeks later, the NRB had partially reviewed the remuneration orders that applied to the sugar industry, focusing on the areas in which no agreement could be reached during collective bargaining. The Government had withdrawn the referral of these issues to the NRB in August 2012. However, once again in 2014, the same problems had arisen. Following the expiry 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 NRB, 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 a clear violation of the Convention. The Employer members considered that the Government’s statement did not constitute a full reply to the comments of the Committee of Experts and encouraged the Government to provide full information.

The Worker members recalled the fundamental principles on which the Convention was founded and emphasized that the economic life of Mauritius was primarily based on EPZs and on cane sugar cultivation. The Port Louis export processing zone was a central element of the national economy, with around 300 enterprises employing some 60,000 workers. EPZs constituted a major trade union issue, because of both the number of workers they engaged – over 65 million according to the ILO – and because of the difficulties experienced by those workers. The right of workers in EPZs to collective bargaining must not be limited by reason of the special status of these zones, as recalled in the ILO Tripartite Declaration of Principles concerning Multinational Enterprises and Social Policy, adopted by the Governing Body in 1977. However, freedom of association and the right to collective bargaining were violated in the Port Louis export processing zone, as in almost all EPZs throughout the world, despite the fact that the countries which had established them were ILO members. In all its observations since 2002, the Committee of Experts had noted that trade unions and freedom of association were barely existent or non-existent in EPZs due to the repeated violation by employers of the principles and fundamental rights of workers and the lack of adequate legislative protection; that anti-union discrimination in the textile sector was prevalent, especially vis-à-vis migrant workers; and that trade unions faced difficulties in meeting workers. All too often, when trade unions were established in EPZs, trade union representatives were faced with harassment, intimidation, threats, discrimination and unfair dismissals. Sometimes, substitute unions were established by employers, in contravention of ILO standards. The recognition of the right to collective bargaining was of general application and where this right was not given effect, the national authorities should take concrete measures to promote collective bargaining, as requested by the Conference Committee and the Committee of Experts, and it was regrettable that the Government had not provided any information on this subject. Furthermore, with regard to the right to collectively negotiate salaries in the sugar cane sector, the Committee of Experts noted the Government’s interventions in the collective bargaining process, the effect of which was to submit to compulsory arbitration, in contravention of ILO standards, the 21 issues which had not been resolved through collective bargaining. In a communication addressed to the ILO in 2011, the national authorities had justified the interference in collective bargaining that had been discussed by the Conference Committee in 2015. In practice, the priority given to economic commitments in relation to the European market had led to interference in collective bargaining, which ran counter to ILO Conventions. However, the imposition of arbitration was unacceptable, even in view of the economic situation or in the context of a structural adjustment policy. The restrictions on collective bargaining should be applied as exceptional measures rendered necessary only by compelling reasons of national economic interest, but should not exceed a reasonable period and should be accompanied by adequate safeguards for the effective protection of the living standards of the workers concerned, particularly those who risked being most affected. In the present case, agriculture, to which the sugar cane sector belonged, represented only 6 per cent of national economic activity and a collective dispute in this sector would not have threatened national economic interest. The intervention in the collective bargaining process was therefore not justified and the Government should have respected the autonomy of the social partners.

The Worker member of Mauritius said that anti-union discrimination still existed by way of biased and fake disciplinary committees in state-owned and private organizations. In this regard, he referred to the case of Alain Edouard, President of the Port Louis Maritime Employees Association (PLMEA), who had been dismissed following the findings of a disciplinary committee. His dismissal had in practice been the result of his fight against a prospective privatization of some of the activities of the Cargo Handling Corporation (CHC). Despite the intervention of the Minister of Labour, Mr Edouard had not been reinstated. He also referred to anti-union discrimination in Mauritius Post Limited. Recalling the Government’s commitment under both 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), he urged it to provide strong safeguards against the unfair dismissal of workers and trade union leaders, including the immediate reinstatement of the victims of such practices. With respect to collective bargaining in EPZs, around 60,000 Mauritian and 15,000 foreign workers were employed in EPZs. Collective bargaining was almost inexistent because employers contested the recognition of trade unions. The degree of unionization was extremely weak in the private sector (around 15 per cent of the workforce). Labour laws gave the right to foreign workers to organize, although none of them had joined a trade union for obvious reasons: they were employed under fixed-term contracts; they feared deportation; and they feared that their contract of employment would not be renewed. In units where trade unions had recognition, employers used threats and their economic power to urge workers to leave the unions. Furthermore, trade unions did not have easy access to workplaces. The Ministry of Labour had already started procedures for the amendment of the labour law. In the light of the amendments proposed by workers’ organizations, the latter were expecting the new labour law to afford considerable protection to workers. However, the fear was that employers would object to most of these legislative amendments. He recalled that collective bargaining did not exist at all in the public sector. While the salaries of public servants were decided unilaterally by the Pay Research Bureau, a body established by the Government, conditions of service were determined at bipartite meetings between the Ministry of Civil Service and the Pay Research Bureau, without the participation of trade unions. There were no faithful and meaningful tripartite negotiations over salaries and conditions of service. The Government was therefore urged to promote an appropriate mechanism for collective bargaining in the public sector and to remove the arbitrary power of the Pay Research Bureau to take decisions concerning conditions of service, and to transform the Bureau into a platform for tripartite consultation. With respect to the Government’s interference in collective bargaining in 2010 and 2014, he concluded that, in light of what had been said and the Government’s total disregard for last year’s recommendations by the Committee, matters were now outside the ambit of technical assistance.

The Worker member of Germany indicated that the positive economic, social and industrial development of his country would not have been possible without over 71,000 collective agreements that defined solutions and conditions tailored to specific industries and enterprises. Recalling that free collective bargaining between employers and their federations, on the one hand, and trade unions, on the other, was the foundation of collective agreements, he reaffirmed that collective agreements provided a guarantee for fair remuneration and good working conditions for workers, while their respect also offered important insurance of peaceful industrial relations for employers. While encouraging the Government, workers and employers to regulate working conditions through collective agreements, he regretted that the Government had not been successful in adopting new legislation on collective bargaining. He said that there were two essential preconditions for the right to collective bargaining: the freedom to establish trade unions, which also included protection against discrimination; and the negotiation of collective agreements on an equal footing. In this regard, he called on the Government to establish a national framework for the implementation of the Convention. While noting that in Germany the basic law guaranteed freedom of association and the right to collective bargaining without interference from the Government, he welcomed the temporary influence of the Government for setting minimum wages in some cases, for example when the structure of the labour market still needed further development. Welcoming the Government’s indications on initiatives and proposals for fixing minimum wages, he emphasized the importance of social dialogue in this regard and called on the employers in Mauritius to respect the freedom of association of the workers.

The Worker member of Togo, speaking also on behalf of the Worker members of Burkina Faso, Benin, Niger, Côte d’Ivoire, Congo, Ethiopia, Chad and Mali, regretted the total absence of collective bargaining in EPZs in Mauritius. The wages and working conditions of the 60,000 Mauritians and 15,000 foreign nationals working in EPZs were less favourable than those in other areas of the private sector in the country. Because the employers refused to recognize trade unions, collective bargaining was virtually non-existent and, so long as the issue was not resolved by the industrial relations tribunal, they obliged their workers to renounce union membership by means of intimidation and sanctions. Moreover, it was difficult for trade unions to have access to workplaces in EPZs, which made it almost impossible for them to carry out trade union activities. Although the protective provisions of Convention No. 87 had been incorporated in Mauritius’ legislation, labour laws allowed employers considerable latitude to dismiss their employees. Workers were therefore discouraged from joining unions, of which there were practically none in EPZs. Although the labour legislation allowed foreign workers to establish trade unions, none of them took advantage of their right to do so because they were threatened that their fixed-term contracts would not be renewed or that they would be expelled from the country. In those EPZ enterprises where collective bargaining did exist, employers deliberately made the process drag on so much that it was difficult to have any constructive negotiations. In particular, employers hindered wage negotiations and threatened to reduce the workforce if the Commission for Conciliation and Mediation ruled in favour of the workers. He finally indicated that there were other issues that EPZ workers wanted to discuss, including maternity benefits, safety and health, compensation for occupational injuries, and the organization and payment of overtime. Meanwhile, the absence of a conducive environment for collective bargaining meant that these workers were in a position of vulnerability in relation to their employers and perpetuated the existence of unacceptable conditions of work.

The Worker member of Norway, speaking on behalf of the trade unions of the Nordic countries, said that there had hardly been any improvement in this case since its discussion by the Committee the previous year. The number of collective agreements was abysmally and deliberately low and collective bargaining was absent in the public sector. Although union representatives could express their views, there were no real negotiations. As a consequence, she urged the Government to take measures to allow real negotiations in the public sector which could result in collective agreements. Moreover, there was no legal framework to support collective bargaining in EPZs. While welcoming the Government’s commitment to promote voluntary negotiations between employers’ and workers’ organizations in EPZs, she recalled that a pre-condition for collective bargaining was that the trade unions had access to EPZs, which was not the case in Mauritius. Another challenge for negotiations was that trade unions were only entitled to recognition as bargaining agents for a bargaining unit in an enterprise or an industry where they had the support of not less than 30 per cent of the workers in the unit. She emphasized that, in the Nordic countries, workers enjoyed the right to establish and join trade unions of their own choosing and the right to bargain collectively. In those countries, collective bargaining took place both at the national and local levels and in the public sector. National level public employees also enjoyed the right to strike. She considered that the same should apply to workers in Mauritius, as required by the Convention. Recalling that strong collective bargaining laws and practices ensured that unions were able to agree with employers on more detailed and favourable conditions of work, she urged the Government to promote the full development and utilization of collective bargaining mechanisms and laws, in both the private and public sectors, to increase the number of workers covered by effective collective bargaining agreements in the country. This was particularly important for vulnerable workers employed in EPZs, including women workers in the textile sector and migrant workers.

The Worker member of Australia, also speaking on behalf of the workers of New Zealand, emphasized that the interference by the Government in collective bargaining occurred in the sugar industry, a sector in which the bargaining parties were experienced and mature and the timing of negotiations was critical to the bargaining process, because there was a limited period of time each year in which sugar cane could be harvested and crushed. He noted that any outside interference in this process could have a serious impact on the relative bargaining strength of the parties, and potentially on bargaining outcomes. Acknowledging that the Employment Relations Act 2008 provided that it was for the parties themselves to negotiate collective agreements, he emphasized that the use of arbitration processes under section 63 of the Act was admissible only if the parties agreed, and that this had not been the case in the events referred to in the observation of the Committee of Experts. He emphasized that the imposition of a settlement in collective bargaining negotiation was inconsistent with the Convention and urged the Government to amend the Act. In this regard, he encouraged the Government to avail itself of the technical assistance of the ILO.

The Government representative recalled the measures that had been taken by the Government to give effect to the Convention. The NRB resolved disputes and determined minimum wages at the sectoral level. Employers’ and workers’ organizations actively participated in this process. In addition, collective bargaining existed between employers and workers and their organizations. Referring to his introductory statement, he recalled that 62 collective agreements had been signed since 1 May 2010, including four in EPZs. A list of collective agreements concluded and registered for the period 1 May 2010 to 31 May 2016 had provided to the Committee. In accordance with the Employment Relations Act, workers were free to join trade unions and to bargain collectively with employers. Interference by the Government in collective bargaining in the sugar sector in 2010 and 2014 was recognized, although he added that the Government had intervened in good faith, at the request of one party, in order to assist the parties to obtain an agreement. Following conclusions on this case of the Conference Committee in June 2015, the Government, in line with Article 4 of the Convention, was now avoiding any intervention in collective bargaining between employers and workers. He added that some organizations carried out their trade union activities during the working time of employees, creating some difficulties with the employers concerned. The Government did not interfere in those matters. Referring to remuneration orders, he said that wages could not be set below minimum wages. With respect to collective bargaining in EPZs, Mauritian and foreign workers were free to join unions and bargain collectively. Courses were being offered to workers, including on collective bargaining. Working conditions were not less favourable in EPZs. No sectoral discrimination occurred and he cited the example of maternity leave, of which 14 weeks was provided in EPZs, a duration which was comparable to other sectors.

The Worker members observed that the Government representative had taken the employers’ side even though, as the regulator of industrial relations, it was obliged to maintain a balanced stance. They emphasized the importance of complying with the Convention, the principles of which were applicable both to EPZs and to the sugar cane industry. Recognition of the right to collective bargaining was general in scope and applied equally to the private and the public sectors and only members of the armed forces and the police could be excluded, while specific arrangements could be established for public servants engaged in the administration of the State. Workers in EPZs were therefore fully entitled to bargain collectively. In addition to the statistics provided by the Government and its reference to certain regulations in force, the Government also needed to take specific measures to combat the anti-union reprisals that occurred in EPZs and to promote the exercise of the right to collective bargaining. Such initiatives would send an important signal to EPZs throughout the world, which should not be considered no-rights zones, and where trade unions could play a key role as watchdogs. Under the terms of the Convention, interventions by the public authorities in collective bargaining was only possible under specific circumstances, and the Committee of Experts had established very precise criteria on the subject, the value of which had been recognized by all constituents, including the Employer members of the Conference Committee. Intervention by public authorities in collective bargaining was admissible only when justified by overriding reasons of national economic interest and should only be an exceptional measure, limited to what was essential, and should not exceed a reasonable period and be accompanied by guarantees that effectively protected the standard of living of the workers concerned. Finally, they emphasized that, even though the Government claimed to have acted in good faith, its interference in collective bargaining in the sugar sector was unfortunate. It must respect the autonomy of the social partners fully, as required under the commitments that it had entered into when it ratified the Convention. The Government needed to promote appropriate collective bargaining machinery and respond to the workers’ fear of reprisals. While noting its commitment to comply with the Convention, the Worker members called on the Government, in a report to the 2016 session of the Committee of Experts, to provide details of measures taken and the specific progress made on the issue.

The Employer members, indicating that there continued to be confusion about the facts and allegations of interference by the Government in collective bargaining, emphasized that in 2010 the Government had intervened in the voluntary collective bargaining process in the sugar industry by referring 21 unresolved issues to the NRB. Moreover, in November and December 2014, after protracted voluntary collective bargaining negotiations, which had resulted in a strike, following which a collective agreement had been concluded with the intervention of the Minister of Labour, three unresolved issues had been referred to the NRB. While more information was required from the Government on the role played by the NRB in relation to minimum wages, the Employer members emphasized the basic principle according to which the Government should not intervene in collective bargaining by imposing conditions. The selective renewal of remuneration orders in response to the outcome of collective bargaining had to cease immediately, as it constituted undue interference in voluntary collective bargaining. They encouraged the Government to engage in social dialogue with the social partners on collective bargaining and on the functioning of the NRB. They looked forward to further information in the next report of the Government to the Committee of Experts and encouraged the Government to take action in order to ensure the application of the Convention in law and practice.

Conclusions

The Committee took note of the information provided by the Government representative and the discussion that followed on issues raised by the Committee of Experts.

The Committee noted with interest the Government’s information concerning measures taken to favour collective bargaining in the export processing zones. However, it expressed concern at the Government’s failure to respect collective bargaining in the sugar industry.

Taking into account the discussion of the case, the Committee requested the Government to:

• - Cease its intervention into free and voluntary collective bargaining between employers and workers in the sugar industry.
• - Take concrete measures to promote and encourage the greater development and utilization of procedures of voluntary negotiations between employers/employers’ organizations on the one hand and workers’ organizations, on the other, in order to regulate the terms and conditions of employment through collective bargaining agreements. This includes collective bargaining in export processing zones, in the garment sector and in the sugar industry.
• - Provide detailed information on the current situation of collective bargaining in the export processing zones and on the concrete measures to promote it in those zones.
• - Refrain from infringing Article 4 of the Convention and from committing similar violations in the future.
• - Cease all interference in collective bargaining in the private sector with respect to principles related to mandatory arbitration.
• - Accept technical assistance from the Office to comply with these conclusions.