Observación (CEACR) - Adopción: 2024, Publicación: 113ª reunión CIT (2025)

Convenio sobre el derecho de sindicación y de negociación colectiva, 1949 (núm. 98) - Mauricio (Ratificación : 1969)

The Committee notes the observations of the Confederation of Public and Private Sector Workers (CTSP) received on 28 June 2024, and the National Trade Unions Confederation (NTUC) received on 4 September 2024 which are related to matters examined in the present comment.

In its previous comments, the Committee requested the Government to provide information on the recommendations made by the National Tripartite Council (established by a reform of the Employment Relations Act (ERA) of 2019) in relation to matters covered by the Convention. The committee takes due note that the first meeting of the National Council took place on 20 April 2023. The Committee requests the Government to transmit any recommendations made by the Council in relation to matters covered by the Convention.

Article 1 of the Convention. Adequate protection against acts of anti-union discrimination. In its previous comment, the Committee noted with interest the entry into force of the changes to the ERA, made in 2019:

• new section 31(1)(b)(iii) provides that no person shall discriminate against, victimize or otherwise prejudice a worker or an accredited workplace representative on any employment issue on the ground of his trade union activities;
• new section 64(1A) provides for stringent conditions to curb any decision to terminate workers’ employment in relation to trade union membership or activities; and
• in section 2 of the ERA, the definition of labour dispute has been broadened to include reinstatement of a worker where the employment is terminated on the grounds specified in section 64(1A) (above-mentioned).

The Committee requested the Government to indicate the impact in practice of these amendments and to provide statistical data in that regard. The Committee notes the repeal of section 64(1A) of the ERA and its replacement by section 69 of the Worker’s Rights Act (WRA), as well as the role given, under this new complaint mechanism, to the supervising officer appointed by the Minister of Labour. The Committee further notes with interest that the definition of harassment prohibited by section 114(1) of the ERA includes forms of harassment on grounds of the exercise of trade union rights (see section 114(7) of the Act); the fact that article 64(1)(d) expressly prohibits the termination of an employment relationship on the grounds of the exercise of trade union rights; and that section 69A provides that a worker dismissed on such grounds may claim reinstatement in his or her functions. The Committee notes, however, that under sections 69 and 70 of the WRA, the possibility for a worker to obtain compensation in the event of violation of trade union rights is limited to cases of dismissal of workers having been in continuous employment for a period of at least 12 months with an employer, and that the anti-union nature of the dismissal does not figure among the criteria for awarding additional damages. Moreover, the Committee also notes that the imposition of penalties for anti-union acts is restricted solely to cases of anti-union harassment, by virtue of section 114(1)(a), (5) and (7) of the WRA. The Committee recalls that anti-union discrimination is one of the most serious violations of freedom of association and all acts of discrimination related to employment must therefore be prohibited and sanctioned in practice. The Committee therefore requests the Government to amend the WRA to ensure that all acts of anti-union discrimination, regardless of whether they are directed at workers that have been in continuous employment for 12 months or constitute harassment, result in the imposition of specific penalties or in the payment of additional damages to be paid by the perpetrator. The Committee requests the Government to communicate all relevant information in this regard.

The Committee also notes the statistics provided by the Government concerning the number of disputes addressed by the competent authorities and that between 2021 and May 2024: (1) no cases of dismissal on anti-union grounds were registered; and (2) only two cases of anti-union discrimination were registered by the authorities. The Committee notes the Government’s indication that the two disputes were resolved to the satisfaction of the workers involved. The Committee requests the Government to clarify the nature of the provisions applied in the two cases of alleged anti-union discrimination. The Committee also requests the Government to continue to provide detailed data on the number of complaints for anti-union discrimination, in particular for anti-union dismissal, that have been filed with the competent authorities (the labour inspection and the courts) and their outcomes, As well as the number and nature of the penalties imposed, or compensation granted.

In its previous comment, the Committee expressed the firm hope that the various amendments made to the ERA in 2019 would contribute to improving the rapidity and efficiency of the conciliation procedures undertaken by the Commission for Conciliation and Mediation (CCM) in respect of disputes involving allegations of anti-union discrimination. In this regard, the Committee notes the statistics supplied by the Government on the number of disputes submitted to the CCM between 2021 and May 2024, and notes that a large number of cases appear to have achieved resolution each year. The Committee requests the Government to clarify what becomes of the conciliation cases that are classified, each year, as “pending”, and to indicate why in 2024, only 15 out of 230 conciliation cases achieved resolution, and why only 147 of the remaining cases, rather than 215, were classified as pending.

The Committee also reiterated its request to the Government to take measures with a view to accelerating judicial proceedings and to provide statistical data on their average duration, including with respect to cases that may arise in EPZs. The Committee notes that the Government restricts itself to indicating that the time limits applied to the treatment of files come under the State judiciary, and that the fixing of rules to be respected by the legal institutions, and in particular regarding time limits, come under the legislative authority. In this regard, while noting the Government’s indications regarding legal amendments imposing maximum time limits to be respected for addressing certain complaints by different competent authorities established by the ERA and WRA (by virtue of sections 69A and 73 of the WRA and section 87 of the ERA), the Committee also notes the CTSP’s observation that the absence of clear rules on time limits for legal proceedings opens the door to unreasonable delays of which the victims are the trade unions. Noting with regret that the Government has not supplied the statistical data requested in its previous comments, the Committee urges the Government to take the necessary measures to accelerate judicial proceedings and to provide statistical data on the average duration of judicial (or quasi-judicial) proceedings in respect of trade union rights, including with regard to cases arising in EPZs.

Article 4. Promotion of collective bargaining. In its previous comment, the Committee requested the Government to clarify: (i) whether the revised section 69(9)(b) of the ERA allows for compulsory arbitration at the request of one of the parties; (ii) the rationale behind the removal of consultations with the social partners provided under section 87(2) of the ERA; and (iii) the impact in practice of the legislative amendments made to sections 69(3), 87(2) and 88(4) of the ERA on improving collective bargaining:

• With regard to section 69(9)(b), the Committee notes the Government’s indication that the mechanism permitting, in case of deadlock in the CCM, one of the parties to refer the dispute to the employment relations tribunal, respects the spirit of collective bargaining, and that its underlying intention is to protect the more disadvantaged party in a negotiation. While noting that the two parties to negotiation both effectively enjoy the right to request compulsory arbitration in case of deadlock noted by the CCM, the Committee recalls that recourse to compulsory arbitration can only be compatible with the Convention in the following circumstances: (i) in essential services in the strict sense of the term; (ii) in the case of disputes in the public service involving public servants engaged in the administration of the State; (iii) when, after protracted and fruitless negotiations, it becomes obvious that the deadlock will not be broken without some initiative by the authorities; or (iv) in the event of an acute crisis (see the 2012 General Survey on the fundamental Conventions, paragraph 247). The Committee therefore requests the Government to take all necessary measures to amend section 69(9)(b) to bring it into conformity with the Convention.
• With regard to the removal of the consultations provided under section 87(2) of the ERA, that required the minister to hold consultations with the most representative organizations of employers and workers regarding the appointment or conciliators or mediators, the Committee notes the Government’s indications, which concern the process of appointment of conciliators and mediators, but do not clarify the reasons for the removal of consultations. The Committee therefore again requests the Government to indicate the rationale for removing the consultations with the social partners provided by section 87(2) of the ERA.
• With regard to the impact of legislative amendments in practice, the Committee notes the Government’s indications that 214 agreements were registered with the Ministry of Labour between January 2021 and December 2023 (new collective agreements and amendments to existing agreements). The Committee requests the Government to continue to indicate the impact in practice of the new provisions of the ERA, specifying in what particular manner they contribute to strengthening collective bargaining in Mauritius.

In its previous comment, the Committee requested the Government to strengthen inspection and awareness-raising activities in respect of collective bargaining, in particular in EPZs, the textile sector, sugar industry, manufacturing sector and other sectors employing migrant workers. The Committee notes the Government’s indication that: (i) 55 awareness-raising activities were conducted between 2021 and May 2024, reaching 808 EPZ and textile sector workers; and (ii) 151 inspections were carried out in EPZs, concerning 17,854 local workers, and 1,458 inspections were carried out in the manufacturing sector, concerning 70,155 migrant workers. Noting a sharp fall in activities and workers reached by them in comparison with the 2017–20 period, the Committee requests the Government to indicate the reasons for this decrease.

In its previous comment, the Committee also requested the Government to continue to provide statistics on the functioning of collective bargaining in practice, especially in EPZs. The Committee notes the registration of 214 collective agreements between 2021 and May 2024, but observes that it is not able to ascertain whether some of these agreements are applicable in EPZs and whether they apply to migrant workers. The Committee also notes the observations of the CTSP that at present no migrant worker is covered by a collective agreement. Finally, the Committee notes the Government’s response to the CTSP, to the effect that migrant workers may, under section 13 of the ERA, become members of a union. In the light of these elements, the Committee requests the Government to take the necessary measures rapidly, in consultation with the social partners, to greatly strengthen awareness-raising and inspection activities in respect of collective bargaining, especially in EPZs and in the economic sectors in which migrant workers are employed. It also requests the Government to continue to provide statistics on the number of collective agreements concluded and in force in the country, specifying the different sectors concerned – including EPZs – and the numbers of workers covered. Finally, noting the CTSP’s observations in this regard, the Committee requests the Government to provide information on the existence of collective bargaining at sectoral level, and of possible steps taken to promote such bargaining.

Article 6. Collective bargaining in the public sector. In its last comment, the Committee requested the Government to transmit a copy of the regulation for the Employment Relations Committee once it had been adopted. The Committee notes the Government’s indications that the Ministry of Public Services, Administrative and Institutional Reforms is still working on a draft regulation, and that it is still awaiting receipt of the written proposals and comments requested from the three principal public sector trade union federations. Considering the length of time passed since the announcement of the draft regulation for the Employment Relations Committee, the Committee expects that it will shortly be adopted and again requests the Government to transmit a copy once it has been adopted.

The Committee also requested the Government to take the necessary measures to effectively recognize the right to collective bargaining of public servants who are not engaged in the administration of the State. The Committee notes the Government’s indications regarding the functioning of the authorities responsible for taking action in respect of the labour relations of all State officials, namely: the Wage Research Bureau and the Employment Relations Unit (ERU), but it was unable to ascertain, from this information, which were the mechanisms enabling public servants not engaged in the administration of the State to bargain collectively in respect of their working conditions. The Committee also notes the observation of the NTUC, which considers that the Government has decided to exclude trade unions representing all public servants from the possibility of engaging in collective bargaining. The Committee therefore requests the Government to respond to the observations of the NTUC and, once again, to take the necessary measures, together with the professional organizations concerned, to effectively recognize the right to collective bargaining for all public servants not engaged in the administration of the State. The Committee recalls, in this regard, that Mauritius has also ratified the Collective Bargaining Convention, 1981 (No. 154), which also covers public servants engaged in the administration of the State, and refers the Government to its comments under that Convention.