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Workers with Family Responsibilities Convention, 1981 (No. 156) - Mauritius (RATIFICATION: 2004)

Other comments on C156

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Article 1. Definition of “member of the immediate family”. The Committee notes that Equal Opportunities Act No. 42 of 2008 was adopted. It also notes that section 5(3)(b) of the Equal Opportunities Act defines “family responsibility” as the responsibility of a person to care for or support a dependent child or any other immediate family member who is in need of care or support.

Article 3. National policy. The Committee notes that while section 4 of the Employment Rights Act No. 33 of 2008 prohibits discrimination in employment and occupation on various grounds including sex, sections 5 and 6 of the Equal Opportunities Act define direct and indirect discrimination on the ground of “status”. According to section 2 of the Equal Opportunities Act, status is defined to include marital status and sex; section 5(3)(a) of the Act provides that it is deemed to be discrimination on the ground of sex where one acts as he/she does because of the pregnancy, family responsibility or potential pregnancy of a person, or a characteristic of such person; and sections 10 and 11 of the Act prohibits discrimination by employers or prospective employers. The Committee also notes the Government’s indication that the Action Plan for a National Gender Policy (2005–15) had to be reviewed for more effective implementation, and the National Gender Policy had been revised into a National Gender Policy Framework (NGPF), which was adopted in 2008. According to the NGPF, taking into account unpaid, non-market work and achieving gender equitable work–life balance is one of the guiding principles, and the Government states that the NGPF provides the framework for each Ministry, Department and Agency to derive their organizational specific gender policy which will guide their strategic framework for programmes and budgeting. It further notes the Government’s indication that two programmes are being implemented by the National Empowerment Foundation in order for workers with family responsibilities to reconcile work and family responsibilities, and that the Ministry of Gender Equality, Child Development and Family Welfare (MGECDFW) is contemplating seeking consultancy services to, inter alia, develop a “Balancing Work and Family Life Programme”, for the creation of a family friendly work environment. The Committee asks the Government to provide information on the practical application of the relevant sections of the Equal Opportunities Act. It also asks the Government to provide information on the implementation of the National Gender Policy Framework, in particular, concerning the guiding principle of taking into account unpaid, non-market work and achieving gender-equitable work–life balance, and any other measures taken to promote a sharing of family responsibilities between men and women, as well as results achieved by such measures.

Article 4. Leave entitlements for men and women workers with family responsibilities. The Committee notes that section 32 of the Employment Rights Act provides that where the Permanent Secretary or a government medical officer is of the opinion that no adequate arrangements exist to provide for the nursing of children for workers, he or she may by written notice give directions to the employer to make such arrangements. Furthermore, section 31 of the Employment Rights Act provides for paternity leave of five continuous days for a male worker at the birth of the child of his spouse, which applies to all sectors of employment in the private sector. “Spouse” is defined as the person with whom the worker has contracted civil and religious marriage, and according to the amendment made by Act No. 14 of 2009, he has to show in a written statement, that he is living with his spouse under a common roof. In this connection, the Committee had previously asked the Government to consider amending section 31 of the Employment Rights Bill so as to provide paternity leave also to male employees who are not married upon the birth of their child but who are living under a common roof at the time of delivery. In its latest report, the Government states that the issue involves a policy decision which at this stage cannot be entertained in view of its incompatibility with the Mauritian culture and the fact that Mauritius is still a highly conservative society. The Government also states that no measures to provide special leave entitlements to workers with family responsibilities in case of illness have been taken in view of the cost implications that these would have on enterprises. The Committee once again asks the Government to consider amending section 31 of the Employment Rights Act so as to provide paternity leave also to male employees who are not married, and to indicate any practical measures taken or envisaged to ensure equivalent guarantee to male employees who are not married, with a view to taking account of needs of workers with family responsibilities in terms and conditions of employment. It also asks the Government to provide information on the practical application of section 32 of the Employment Rights Act, including the number of cases in which directions are given to the employer to make arrangements for the nursing of children. Furthermore, recalling Paragraph 23 on the Workers with Family Responsibilities Recommendation, 1981 (No. 165), the Committee asks the Government to consider taking measures to provide special leave entitlements in cases of illness in the family, and to provide information on any progress made in this regard. Please also provide information on any follow-up given to the recommendation to undertake a review of the remuneration orders with a view to eliminating barriers in the employment of workers with family responsibilities.

Leave entitlements in the public sector. The Committee notes that sections 30–32 of the Employment Rights Act do not apply to a public officer or a local government officer (section 3(2)). It also notes that the Pay Research Bureau report 2008 includes recommendations with regard to leave entitlements in the public sector as follows: (1) female public officers, in the period of 12 months following the expiry of maternity leave may in addition to vacation leave either (i) take a maximum of nine months leave without pay; or (ii) six months leave without pay followed by six months part-time employment for half the working time on half pay; (2) around the time of child birth, fathers may take their normal casual leave entitlement as well as up to eight days from their accumulated vacation leave; the husband holding a substantive appointment or having completed one year’s continuous service should be granted parental leave on full pay of a duration equal to the unused portion of the maternity leave (or in a case of a non-working wife, hypothetical unused maternity leave computed as from the date of delivery), however, only following the death of a wife after delivery. The Committee draws the Government’s attention to the fact that the assumption that the main responsibility for family care and the household lies with women, thus reinforcing stereotypical attitudes regarding the roles of men and women and existing gender inequality, runs counter to the objectives of the Convention. The Committee therefore considers that the measures taken in favour of workers with family responsibilities should be made available to men and women equally. The Committee asks the Government to indicate the legal status of the recommendations included in the Pay Research Bureau report, and any follow-up made to the recommendations. It also asks the Government to indicate any consideration being given to providing at least five days of paternity leave to workers in the public sector, as is already available for the private sector, as well as any measures taken or envisaged to ensure that leave entitlements in the public sector are available to men and women on an equal footing.

Working time arrangements. The Committee recalls its previous comments with regard to the work and the family study (2002), and the working time in Mauritius (2005) that workers in export processing zones (EPZs), mostly women, face long hours of work including compulsory overtime. The Committee notes that section 30(7) of the Employment Rights Act provides that a female worker is prohibited from working in excess of a normal day’s work or work during night shift, two months before her confinement, however there is no provision concerning flexible working time arrangements. In this connection, the Committee notes the Government’s indication that, with the entry into force of the Employment Rights Act, there would, in principle, be no major legal impediments to the introduction of flexible working time arrangements, in particular in the emerging sectors such as the Information and Communication Technologies enabled services, the seafood hub or the financial services sector. The Committee also notes the Government’s indication that, the Tripartite Technical Committee has not yet been established due to the lack of response and commitment particularly from the social partners, while at the initiative of the Ministry of Social Integration and Economic Empowerment, a study is being carried out by the Mauritius Employers’ Federation to identify any legal, regulatory or other constraints preventing people from taking up jobs on a part-time or flexible working time basis, and the report of the study is expected to be finalized in October 2011. The Committee asks the Government to indicate how it is ensured that, under the Employment Rights Act, flexible working time arrangements, including part-time employment particularly for female heads of household, are feasible in practice. It also asks the Government to provide information on the working time arrangements in practice, including the statistical information, disaggregated by sex, and their impact on promoting equality of opportunity and treatment for workers with family responsibilities, especially those working in EPZs. Please also provide a copy of the report of the study being carried out at the initiative of the Ministry of Social Integration and Economic Empowerment.

Social security. The Committee notes the statistical information on the unemployment hardship relief for the period from July 2006 to June 2011. It also notes the Government’s indication that no studies or surveys are currently being undertaken to assess the feasibility of providing for the accumulation of pension points during absence from work due to family responsibilities. The Government also states that, given that the social insurance scheme covers all employees of the private sector, it would be very difficult to determine which workers are not working due to family responsibilities. The Committee asks the Government to provide information on any measures taken or envisaged to take account of the needs of workers with family responsibilities in social security, including those toward the possibility of accumulating pension points for male and female workers during periods of absence from work due to family responsibilities.

Article 5. Childcare and family services and facilities. The Committee notes the Government’s indication that the MGECDFW has set up a day care centre and women centre at Baie du Tombeau. The Government also indicates that while most day care centres are privately owned, registration with the MGECDFW is mandatory, and as of June 2011, 303 day-care centres have applied for registration, among which 80 centres have been duly registered. It further indicates that the National Empowerment Foundation (NEF)’s programmes are structured, including the Child and Family Development Programme, which was set up in August 2010, with a major focus on the setting up of “crèches” in under-privileged areas for children aged between three months to three years; the NEF works in collaboration with local non-governmental organizations that manage day care centres based on corporate social responsibility funds. In 2010, such a day care centre was established at Cité Père Laval, Quatre Bornes, and caters for approximately 17 children aged one to three years; in 2011, such centres were established at St Hilaire for approximately ten toddlers and at Cité La Cure for approximately 30 children aged three months to three years. The Committee asks the Government to continue to provide information, including statistics, on men’s and women’s access to childcare and other care facilities. Please also provide detailed information on any measures taken or envisaged to provide adequate childcare and family services and facilities, indicating the progress made in extending coverage of care services and facilities for other dependent members of the family, as well as the results achieved.

Article 6. Education for the public. The Committee notes the establishment of the Sex Discrimination Division under section 27 of the Equal Opportunities Act, and the Government’s indication that the Sex Discrimination Division, in its ongoing sensitization campaigns, explains the purpose of the Sex Discrimination Act and appeals for a change of mentality, more particularly among the younger generation. The Committee asks the Government to confirm that the sensitization campaigns by the Sex Discrimination Division are ongoing with regard to the Equal Opportunities Act, replacing the Sex Discrimination Act. It also asks the Government to provide specific information on the action taken by the authorities including the Sex Discrimination Division in order to promote a broader public understanding of various aspects of employment of workers with family responsibilities and the need for a more equitable sharing of family responsibilities between men and women. Please also provide information on the programmes undertaken to address stereotyping with respect to family responsibilities, including in the context of the National Gender Policy Framework.

Article 7. Vocational guidance and training. The Committee notes the adoption of the Mauritius Institute of Training and Development Act 2009, and the Government’s indication that courses aimed at empowering workers in general to integrate into the labour force definitely contribute toward promoting the employability of workers with family responsibilities and facilitating them in joining the labour force or setting up their own business. It also notes the statistical information provided by the Government that for the period 2009–11, a total of 132 male and 595 female have benefitted from such courses. However, the Committee notes the Government’s indication that there are no vocational training and employment programmes specifically targeted to workers with family responsibilities. The Committee asks the Government to indicate any measures taken or envisaged to take into account the specific need of male and female workers with family responsibilities in order to become and remain integrated in the labour force, as well as to re-enter the labour force after an absence due to family responsibilities.

Article 8. Protection against dismissal. The Committee notes that the Employment Rights Act 2008 provides, inter alia, that a worker’s employment shall not be terminated by reason of pregnancy, sex, marital status or family responsibilities (section 38(1)(a)), or a worker’s absence from work during maternity leave (section 38(1)(b)). The Committee further notes the Government’s indication that a dismissed worker has recourse to the Industrial Court. Accordingly, section 46(5)(e) of the Employment Rights Act provides that, where the court finds that the termination of employment was unjustified, the court may order that the worker be paid severance allowance. The Committee asks the Government to provide information on any cases under section 38(1) of the Employment Rights Act, relating to dismissal of workers due to their family responsibilities dealt with by the competent authorities, including the Industrial Court.

Article 9. The Committee notes the Government’s indication that, in certain collective agreements, provisions concerning entitlements for employees, including paternity leave and leave without pay, are included. The Committee asks the Government to supply copies of any provisions in collective agreements, if available, which would assist workers in reconciling their work and family responsibilities.

Article 11. The Committee notes the Government’s indication that consultation with, and to the extent possible participation of, social partners through discussion at the level of tripartite bodies, including the Labour Advisory Council, takes place to introduce new measures and legislation affecting employment. The Government also indicates that a National Tripartite Forum has been set up to promote effective social dialogue and consensus building on issues of importance to the world of work. The Committee requests the Government to provide information on the specific measures taken to promote social dialogue and tripartite cooperation in order to strengthen the laws, measures and policies giving effect to the Convention, and on the manner in which workers’ and employers’ organizations have exercised their right to participate in the design and implementation of such measures, with a view to encouraging family friendly enterprises and the adoption of family friendly arrangements in collective agreements. It also asks the Government to provide further information on the function of the National Tripartite Forum.

Parts III–V of the report form. The Committee notes the list of complaints submitted to the Sex Discrimination Division concerning workers with family responsibilities, according to which there were complaints concerning termination of employment contract due to pregnancy, refusal of leave or transfer related to pregnancy or breastfeeding. It further notes the Government’s indication that there has been, so far, no decision given by any court of law or other tribunals relating to the application of the Convention. The Committee asks the Government to continue to provide information on any complaints concerning workers with family responsibilities, both in the private and public sectors, dealt with by the Sex Discrimination Division, any related judicial decisions, including termination disputes concerning workers with family responsibilities, and case of infringement reported to or detected by labour inspection services, as well as the remedies provided or sanctions imposed.