CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

CMNT_TITLE

Communication of the CTSP. The Committee notes the communication dated 10 June 2009 from the Confederation of Private Sector Workers (CTSP) concerning the imposition of compulsory overtime under the provisions of the Employment Rights Act 2008 (ERA), as well as the Government’s reply to that communication. The CTSP alleges, inter alia, that the ERA has deregulated the working hours from eight hours per day to 90 hours per fortnight, and that these and other provisions allow for the imposition of compulsory overtime. The Committee notes the Government’s indication in its reply that the ERA has maintained a normal day’s work at eight hours, and that there is no obligation imposed on workers to perform overtime under the ERA. The Committee also notes that sections 14(2) and (8) of the ERA provide that, by mutual agreement between worker and employer, a worker may work in excess of the “stipulated hours” (eight hours, as per section 2) without added remuneration on a particular work day or shift, so long as the number of hours covered in a fortnight does not exceed 90 hours. Under section 16(1) of the ERA, a worker and an employer may agree on the number of hours of work to be performed in excess of the stipulated hours where the exigencies of an enterprise so require, and no employer shall require a worker to perform work in excess of the stipulated hours unless he has given, as far as is practicable, at least 24 hours notice in advance to the worker of the extra work to be performed. Under section 16(2), a worker who does not wish to work in excess of the stipulated hours on a particular day shall notify his employer, at least 24 hours in advance, of his intention not to work on that day.

The Committee recalls that in its 2007 General Survey on the Eradication of forced labour (paragraphs 132–134), it has considered that the imposition of overtime hours does not affect the application of the Convention in so far as such a requirement falls within the limits established by the national legislation or accepted by collective agreements. Above those limits, the Committee has considered it appropriate to examine the circumstances in which a link arises between an obligation to perform overtime work and the protection provided by the Convention. The Committee has observed that there may be circumstances in which workers in situations of particular vulnerability (e.g., fear of dismissal, receipt of sub-minimum wages) are obliged, under menace of a penalty, to work overtime hours well beyond what is allowed under national legislation, even though in theory they have the right to refuse to do so.

The Committee requests the Government to provide, in its next report, any available information on the application in practice of the provisions of the ERA referred to above, including copies of any relevant collective agreements and administrative or judicial rulings, so as to enable the Committee to ascertain whether the ERA, as applied in practice, gives rise to issues of overtime work that may have a bearing upon the application of the Convention.

Article 2, paragraph 2, subparagraph (c) of the Convention. Prison work for private individuals, companies or associations. The Committee has previously noted that, under section 5 of the Ordinance concerning the work of prisoners (Standing Order No. 16 of 29 August 1997), it is prohibited for prisoners to be compelled to work in the service of another detainee or an officer or for the private benefit of any person. However, the Committee observed that section 16(2) of the Prison Regulations of 1989, adopted under section 66 of the Reform Institutions Act of 1988 (RIA), appears to allow a prisoner to work in the service of an officer if authorization is granted by the Commissioner of Prisons. The Committee hoped that the Government would clarify the apparent conflict in the text of the two provisions, and also indicate whether measures would be taken to rescind section 16(2) of the Prison Regulations of 1989.

The Committee notes the Government’s statement in its report that there have been no instances in which a prisoner has been authorized by the Commissioner under section 16(2) of the Prison Regulations of 1989 to perform work in the service of an officer, and that, in view of the fact that in cases of emergency such as cyclone, fire, etc., a detainee may be required to do such work, if the need arises, it was not the intention of the Government to amend section 16(2) of the Prison Regulations, 1989.

The Committee requests that the necessary measures be taken with a view to amending section 16(2) of the Prison Regulations of 1989, so as to limit the exaction of compulsory labour of prisoners under authorization granted by the Commissioner of Prisons to cases of emergency, i.e., to circumstances where a calamity or threatened calamity endangers the existence or well-being of the whole or part of the population. The Committee requests the Government to provide, in its next report, information on the progress made in this regard.

CMNT_TITLE

The Committee notes the information supplied by the Government in its latest report concerning work under community service orders.

Article 2(2)(c) of the Convention. Prison work for private individuals, companies or associations. The Committee previously noted that, under section 5 of the Ordinance concerning the work of prisoners (Standing Order No. 16 of 29 August 1997), it is prohibited for prisoners to be compelled to work in the service of another detainee or an officer or for the private benefit of any person. However, the Committee observed that section 16(2) of the Prison Regulations of 1989, adopted under section 66 of the Reform Institutions Act of 1988 (RIA), appeared to allow a prisoner to work in the service of an officer if authorization is granted by the Commissioner of Prisons.

The Committee notes the Government’s statement in its latest report that there have been no specific cases in which a prisoner has been authorized by the Commissioner under section 16(2) of the Prison Regulations of 1989 to perform work in the service of an officer. The Committee hopes that in its next report the Government will clarify the apparent conflict in the text of the two provisions noted above, and that it will also indicate whether section 16(2) of the Prison Regulations of 1989 has been formally rescinded and, if not, whether measures will be taken to do so.

CMNT_TITLE

1. Prison work imposed as a consequence of a conviction. The Committee has noted with interest that, under article 6 of Standing Order No. 16 of 29 August 1997 concerning the employment of prisoners, an unconvicted detainee is to be allowed to work, if he or she so wishes.

2. Prison work for private individuals, companies or associations. The Committee has previously noted the Government’s indication that prisoners are not allowed to work for private individuals, companies or associations, and it had asked the Government to communicate a copy of the texts regulating the employment of prisoners. The Committee notes the Prison Regulations of 1989 and the Ordinance (Standing Order No. 16) of 1997 concerning employment of prisoners communicated by the Government. The Committee notes that under the terms of article 16 of the Prison Regulations, the type of work imposed on a prisoner must be authorized by the Commissioner of Prisons, and it also notes the repeated indications of the Government according to which work imposed on prisoners consists solely of activities that contribute to their rehabilitation such as domestic duties in the prisons or vocational and rehabilitation activities. The Committee recalls that, under Article 2, paragraph 2(c), of the Convention, prisoners may not be hired to or placed at the disposal of private individuals, companies or associations and that this prohibition includes private undertakings charged with the execution of public works. The Committee asks the Government to indicate the rehabilitation activities that can be authorized by the Commissioner of Prisons and to communicate copies of relevant decisions authorizing such activities.

3. The Committee notes that under article 5 of the Ordinance concerning the work of prisoners (Standing Order No. 16 of 29 August 1997), it is prohibited for prisoners to be compelled to work in the service of another detainee or an officer or for the private benefit of any person. The Committee observes, nevertheless, that according to article 16(2) of the Prison Regulations of 1989, adopted under section 66 of the Reform Institutions Act of 1988 (Government Notice No. 19 of 1989), a prisoner may work in the service of a member of prison personnel with the authorization of the Commissioner of Prisons. The Committee asks the Government to indicate the cases in which a prisoner can be authorized by the Commissioner to perform such work and the conditions under which such work is carried out.

4. Work under community service orders. The Committee notes that the Community Service Order Act (CSOA), 2002, which entered into force on 18 November 2002, provides that as an alternative to imprisonment a court is entitled to suspend a sentence of imprisonment or a custody order and instead make a community service order "requiring the convicted person to perform unpaid work in the open for a specified period". The CSOA applies in cases where: a person is convicted of an offence and sentenced to a term of imprisonment not exceeding two years (section 3(1)); or where a court-ordered fine not exceeding 10,000 rupees remains unpaid and the convicted person undergoes a period of imprisonment in lieu of the payment of the fine (section 3(3)). The Act stipulates, as "preconditions" for a community service order, that the convicted person must give his or her consent to the order, and that the court must "ensure that the work to be performed by the convicted person will benefit the State, a statutory body, a charitable institution, or a voluntary organization" (section 4). The duration of work performed under a community service order must not be less than 60 hours or more than 300 hours, spanning a period of not more than 12 months (section 5(1)). It is for the court to specify the "conditions" of a community service order, which include, among other things, "the place where the convicted person shall perform work" (section 6(1)(c)) and "the name and location of … any charitable or voluntary institution or organization as may be prescribed for which the convicted person must work" (section 6(1)(e)).

5. The Committee notes the contents of the Community Service Order Regulations, 2002, which the Government has appended to its report, and that under the Probation and After Care Service of the Government has responsibility for "the overall supervision of persons subjected to a community service order" (paragraph 3(2)), while the institution offering work under a community service order is responsible for "the monitoring of work performance and attendance at the place of work" (paragraph 5).

6. The Committee requests information from the Government as to the criteria used by the judicial or other authorities in deciding which voluntary and charitable institutions and organizations are to participate in providing work under community service orders in order to ensure that they are not for profit.

CMNT_TITLE

The Committee has noted the Government’s reply to its earlier comments.

Article 2(2)(c) of the Convention. The Committee previously noted that section 31 of the Prisons Ordinance provides that prisoners sentenced to imprisonment without hard labour shall be employed at such work as shall be prescribed by the regulations, and that section 51(1) of the Prisons Ordinance authorizes the Governor in Executive Council to make regulations for the employment of prisoners either within or outside the prison in which they may be confined. The Committee has noted the Government’s statement in its report of 2002 that prisoners are not allowed to work for private individuals, companies or associations and that they work under the supervision and control of prison officers. The Committee would appreciate it if the Government would supply a copy of the regulations governing the employment of prisoners referred to in section 51(1) of the Prisons Ordinance.

CMNT_TITLE

Commercial sexual exploitation of children. 1. In its earlier comments, the Committee expressed its concern regarding the commercial sexual exploitation of children in Mauritius and Rodrigues Island and requested the Government to take all the necessary measures to protect children against trafficking and forced labour involving sexual exploitation.

2. The Committee has noted the Government’s reply to its previous observation on the subject, as well as the Government’s response to the communication of the International Confederation of Free Trade Unions (ICFTU) dated 24 October 2001. It notes that the Government has ratified the Worst Forms of Child Labour Convention, 1999 (No. 182), and refers in this connection to its request addressed directly to the Government in 2003 on the application of that Convention. In so far as Article 3(a) of Convention No. 182 provides that the worst forms of child labour include "all forms of slavery or practices similar to slavery, such as the sale and trafficking of children, debt bondage and serfdom and forced or compulsory labour", the Committee is of the view that the problem of trafficking of children for the purpose of exploiting their labour may be examined more specifically under Convention No. 182. The protection of children is enhanced by the fact that Convention No. 182 requires States which ratify it to take immediate and effective measures to secure the prohibition and elimination of the worst forms of child labour as a matter of urgency. The Committee accordingly asks the Government to refer to its comments on the application of Convention No. 182.

Article 2(2)(c) of the Convention. Prison labour exacted as a consequence of a conviction in a court of law. 3. The Committee previously noted that under section 27(2) of the Prisons Ordinance (Title XXIII, Chapter 313) of 1888, as amended in 1945, labour shall be optional for prisoners detained pending enquiry or committed for trial. The Committee observed, however, that under section 16 of the Prison Regulations 1989, detainees may be required to work provided such work is of a kind authorized by the commissioner. Referring to paragraph 90 of its General Survey of 1979 on the abolition of forced labour, the Committee recalled that work can only be exacted from a prisoner as a consequence of a conviction. It follows that persons who are in detention but have not been convicted - such as prisoners awaiting trial or persons detained without trial - should not be obliged to perform labour (as distinct from certain limited obligations intended merely to ensure cleanliness). The Convention does not prevent work from being made available to such prisoners at their own request, to be performed on a purely voluntary basis.

4. The Committee has noted the Government’s indication in its report of 2002 that detainees work under the supervision and control of prison officers and are engaged in activities which contribute towards their rehabilitation, such as domestic duties in the prisons, vocational and rehabilitation activities. The Committee requests the Government to describe such vocational and rehabilitation activities (as distinct from domestic duties in the prisons) of detainees awaiting trial. It hopes that the necessary measures will be taken to ensure, with regard to the Prisons Regulations 1989, that work is only exacted from prisoners as a consequence of a conviction, in conformity with Article 2(2)(c) of the Convention and section 27(2) of the Prisons Ordinance referred to above, and that work is made available to detainees awaiting trial only at their own request, to be performed on a purely voluntary basis.

Article 25. Illegal exaction of forced or compulsory labour punishable as a penal offence. 5. Referring to its earlier comments the Committee has noted the Government’s statement in its report that there is no provision in the existing legislation which makes the exaction of forced or compulsory labour punishable as a penal offence. It recalls that, under Article 25 of the Convention the illegal exaction of forced or compulsory labour shall be punishable as a penal offence and that ratifying States have an obligation to ensure that penalties imposed by law are really adequate and are strictly enforced. The Committee therefore hopes that the necessary measures will be taken to introduce legal provisions making the exaction of forced or compulsory labour punishable as a penal offence and to ensure that such provisions are made effective by means of penalties which are adequate and strictly enforced. The Committee asks the Government to provide, in its next report, information on the progress made in this regard.

CMNT_TITLE

The Committee notes the Government’s report.

The Committee notes that sections 30(3) and 31 of the Prisons Ordinance provides for prisoners sentenced to imprisonment to be employed at such work as shall be prescribed by regulation. The Committee notes further that section 51(1) of the Prisons Ordinance authorizes the governor in executive council to make regulations for the employment of prisoners either within or outside the prison in which they may be confined. The Committee recalls that, under Article 2, paragraph 2(c), of the Convention, prison work must be carried out under the supervision and control of a public authority, and prisoners may not be hired to or placed at the disposal of private individuals, companies or associations. The Committee asks the Government to supply the text of regulations relating to the employment of prisoners, and to provide information on the steps taken to ensure that, under such regulations, work is exacted from prisoners only under those conditions prescribed by the Convention, as specified above.

CMNT_TITLE

1. The Committee notes the Government’s report. The Committee has also taken note of a communication dated 24 October 2001 of the International Confederation of Free Trade Unions (ICFTU).

Article 1, paragraph 1, and Article 2, of the Convention

Commercial sexual exploitation of children

2. The Committee notes that in October 2000 the Government released a 1998 study on the commercial sexual exploitation of children. The study was conducted with assistance from UNICEF and the World Health Organization and was aimed at understanding the commercially related sexual exploitation of children in Mauritius and Rodrigues Island. The report includes, among others, a finding that there exists "a well structured network of prostitution which attracts young adolescents leading a stray life after leaving the family home. Such networks take complete charge of such stray young adolescents" (paragraph 101).

3. The report states that many of the girls interviewed were 12-13 years old (paragraph 523), and that "in practically all interviews, it was found that the age of entry into prostitution was 13, which appears to be a critical age" (paragraph 808). Most of the prostitutes interviewed pointed to the violence they are subjected to either by the client or the pimp so as to keep them in a situation of dependence. The report also indicates that confinement in isolation, sometimes referred to as sequestration, is also one of the means to maintain prostitutes in the network (paragraphs 505 and 515). There is thus a continuous experience of violence and sexual abuse in the life of a prostitute. One ex-prostitute explained that she tried to escape on several occasions, just to be captured again and again by the right-hand men of the pimp. She was brought back and submitted to further violence (paragraph 505). The report says that the use of force is also common to maintaining girls in prostitution (paragraph 821). The report indicates that in Mauritius "we can also view the prostitution network as a system, a closed institution. It is difficult to get out of it, unless one has strong will to do so and the means as well" (paragraph 822).

4. The Committee notes the communication dated 24 October 2001 of the ICFTU, submitting comments on the observance of the Convention in Mauritius, a copy of which was transmitted to the Government on 5 November 2001 for any comments it may wish to make on the matters raised therein. The Committee notes that, according to the ICFTU report, the coercion of children into prostitution is an increasing problem in Mauritius, and that government reports suggest that the victims are children as young as 13 years. The Committee hopes that the Government will provide comments on the allegations in the ICFTU report.

5. The Committee takes note of the report of the Working Group on Contemporary Forms of Slavery submitted in June 2000 at the 25th Session of the United Nations Commission on Human Rights, which includes information received from the Government in April 2000. The report of the Working Group states that the Government has developed a National Action Plan to Combat the Commercial Sexual Exploitation of Children, based in part on the findings of the 1998 study on that question. The report indicates that legal reforms have been brought about as one element of the National Action Plan, and that these include the Protection of the Child (Miscellaneous Provisions) Act 1998, the Criminal Code (Amendment) Act 1998, and the Criminal Code (Supplementary Amendment) Act 1998. The report further indicates that existing legal provisions are not comprehensive enough to enable effective intervention in cases of child prostitution. The report states that among the problems and obstacles to progress are the lack of prompt intervention by the police, who are empowered by existing law to act in cases of alleged child prostitution; legal provisions which are inadequate and need to be strengthened; inadequate skills and expertise to conduct training programmes; the difficulty in reaching out to victims as they generally do not come forward to report cases; and a lack of sensitivity by the police towards child victims who have to testify.

6. The Committee notes that in 1990 the Government enacted legislation establishing the National Children’s Council, a coordinating body grouping relevant ministries and NGOs and whose objectives included advising the minister responsible for child welfare on measures to combat all forms of child abuse, neglect and exploitation of children. The Committee notes that through amendments enacted in the Protection of the Child (Miscellaneous Provisions) Act (No. 15 of 1998), the Government replaced this objective of the National Children’s Council with the objective of advising the minister on measures to promote child survival, development and protection (section 15(b)). The Committee asks the Government to provide information on the purpose of this amendment, and on the steps taken to ensure that consideration of measures to abolish child exploitation, including the commercial sexual exploitation of children, continues to be a legislative and policy priority.

7. The Committee recalls that, under Article 1, paragraph 1, of the Convention, ratifying States are required to suppress the use of forced or compulsory labour in all its forms. The Committee hopes that the Government will take measures necessary to protect children against trafficking and forced labour involving sexual exploitation. The Committee asks the Government to supply information on the implementation of the National Action Plan to combat the commercial sexual exploitation of children. The Committee also asks the Government to report on how the objectives, role and functions of the National Children’s Council have been defined so as to include measures to combat all forms of forced sexual exploitation for commercial purposes.

Article 25

8. The Committee notes that section 14 of the Child Protection Act 1994 (Act No. 30 of 1994) makes punishable as a sexual offence acts which cause a child to engage in prostitution or to be sexually abused, and that it defines sexual abuse to include the willing or unwilling participation of a child in any act of a sexual nature for purposes of any kind of exploitation. Section 18(5) prescribes a penalty of up to 5,000 rupees and a term of imprisonment of up to five years for persons convicted of these offences. The Committee notes that under section 11 of the Criminal Code (Amendment) Act 1998 (No. 13 of 1998) which amends section 258 of the Criminal Code Act, those who sequester minors are liable to a minimum term of imprisonment of two years. The Committee notes that section 12 of the Criminal Code (Amendment) Act adds a new provision to the Criminal Code which penalizes as child trafficking the acts of persons who, for pecuniary gain, threaten the parents of a child to abandon their child. The Act makes persons convicted of child trafficking liable to a term of imprisonment of up to two years and to a fine of up to 50,000 rupees.

9. The Committee recalls that, under Article 25 of the Convention, the illegal exaction of forced or compulsory labour shall be punishable as a penal offence, and that ratifying States have an obligation to ensure that penalties imposed by law are really adequate and are strictly enforced. The Committee asks the Government to provide information on any cases prosecuted, convictions obtained, and penalties imposed under sections 258(3)(a) and 262A of the Criminal Code Act as amended by the Criminal Code (Amendment) Act 1998 and sections 14 and 18 of the Child Protection Act 1994, and under any other applicable laws, and to include the texts of relevant court rulings. The Committee also requests that the Government supply information on measures taken to improve police training and intervention in cases of child trafficking and commercial sexual exploitation of children, and to establish or improve victim outreach programmes. The Committee asks the Government to provide information on any other measures taken or envisaged to enact new or strengthened legal provisions making the exaction of forced or compulsory labour punishable as a penal offence, and to ensure that such laws are made effective by means of penalties which are adequate and strictly enforced. The Committee asks that in its next report the Government supply the full text of the Criminal Code Act.

Prison labour exacted as a consequence of a conviction

10. The Committee notes that under section 27(2) of the Prisons Ordinance (Title XXIII, Chapter 313) of 1888, as amended in 1945, labour shall be optional to prisoners detained pending enquiry or committed for trial. The Committees observes, however, that section 35 of the Reform Institutions Act 1988 provides that every sentence of detention shall subject the detainee to the performance of such work as may be directed by the officer in charge during the term of the sentence. The Committee observes that under section 16 of the Prison Regulations 1989, detainees may be required to work, provided such work is of a kind authorized by the commissioner.

11. With reference to paragraph 90 of its 1979 General Survey on the abolition of forced labour, the Committee recalls that work can only be exacted from a prisoner as a consequence of a conviction. It follows that persons who are in detention but have not been convicted - such as prisoners awaiting trial or persons detained without trial - should not be obliged to perform labour (as distinct from certain limited obligations intended merely to ensure cleanliness).

12. The Committee requests the Government to indicate the measures taken or contemplated to ensure, with regard to the Reform Institutions Act 1988 and the Prisons Regulations 1989, that work is only exacted from prisoners as a consequence of a conviction, in conformity with Article 2, paragraph 2(c), of the Convention and section 27(2) of the Prisons Ordinance.

CMNT_TITLE

Article 2(2)(c) of the Convention. The Committee notes the Government's report, particularly on the duties which prison inmates may be required to perform under the Prison Regulations. The Government has indicated in connection with section 6(3)(a) of the Constitution that labour is not exacted in the absence of a sentence, even by virtue of the order of a court.

CMNT_TITLE

The Committee notes the information provided by the Government in its report on the application of the Convention, and, in particular, the texts of section 6 of the Constitution of Mauritius and of the Reform Institutions Act, 1988, supplied with the report.

Article 2, paragraph 2(c), of the Convention. The Committee notes that section 6(3)(a) of the Constitution exempts from the prohibition of forced labour any labour required in consequence of the sentence or order of a court. It would be grateful if the Government would supply, in its next report, information, including copies of relevant statutory instruments or administrative rules or regulations, on any circumstances in which labour may be exacted, in the absence of a sentence, by virtue of the order of a court.

CMNT_TITLE

Further to its earlier comments, the Committee notes with satisfaction that the Labour (Amendment) Act, 1988, which was adopted on 16 December 1988, includes a provision repealing the Rodrigues Labour Regulations 1882, under which persons who have no means of subsistence and who, although fit to work, do not habitually work in any trade or profession, could be sentenced to imprisonment.