Definitive Report - REPORT_NO364, June 2012

1. 701. The complaint is contained in communications dated 10 October and 4 November 2011 from the Federation of United Workers (FTU).
2. 702. The Government sent its observations in a communication dated 28 February 2012.
3. 703. Mauritius has ratified 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).

A. The complainant’s allegation

1. 704. In a communication dated 10 October 2011, the FTU alleges that the Chue Wing & Co. Ltd – also called ABC Foods – which is a private company trading in various food products for local market and exportation, carried out anti-union activities against its affiliate trade union, namely the Syndicat des Travailleurs des Etablissements Privés (STEP), recognized by the said company for more than 18 years. The complainant organization indicates that the anti-union practices started in December 2010, further to the external appointment of a new general manager and sales manager at the company.
2. 705. The FTU further indicates that the anti-union practices include the following:
   • ■ intimidation of workers to withdraw themselves from the trade union by the signing of a resignation letter prepared by the company. In a communication of 4 November 2011, the complainant organization asserts that the sales manager of the company admitted having dictated in his own office the resignation letter of a union member, namely Mr Daniel Jean Louis;
   • ■ anti-union campaign via a press article placed on the company’s noticeboard in the workers’ mess room;
   • ■ prohibition to hold trade union meetings in the workers’ mess room, which led the trade union to file a complaint against the company before the Employment Relations Tribunal;
   • ■ surveillance of the workers’ mess room by the installation of a camera despite a formal protest by the trade union in the presence of the Mauritius Employers Federation (MEF);
   • ■ refusal from the management to provide assistance to union members in relation to working condition issues.

B. The Government’s reply

1. 706. In its communication of 28 February 2012, the Government states that the issues raised by the FTU were discussed in various tripartite meetings held at the level of the Conciliation and Mediation Division of the Ministry of Labour, Industrial Relations and Employment. The Government provides the outcome of the Ministry’s enquiry and intervention.
2. 707. With regard to the alleged intimidation of workers to withdraw themselves from the trade union by the signing of a resignation letter prepared by the company, the Government indicates that the company denied having intimidated or coerced any worker to withdraw from the trade union, however the sales manager admitted that he provided assistance to only one union member, at his request, to write his resignation letter. The Government indicates in this regard that the management was verbally cautioned on the relevant provisions of the Employment Relations Act pertaining to the basic workers’ rights to freedom of association and protection of workers’ trade unions against acts of interference. The Government further indicates that an investigation conducted by officers of the Ministry of Labour found that none of the former members of the union have been coerced to withdraw from the STEP.
3. 708. With regard to the alleged anti-union campaign, the Government indicates that the management admitted that it placed on the noticeboard of the workers’ mess room copies of press articles on the conference given by Mr Atma Shanto, representative of the STEP, in order to apprise all its 120 employees, including the 24 union members, of the “boycott” campaign set by the STEP. At the request of the Ministry of Labour, the management withdrew these articles from the noticeboard.
4. 709. Concerning the alleged prohibition to hold trade union meetings on the premises of the company, the Government states that the management had requested Mr Shanto to wear a visitor’s pass for identification purposes, when proceeding to hold any meeting on the premises. The latter refused to wear the visitor’s pass and the union referred the matter to the Employment Relations Tribunal (ERT). However, the ERT resolved this issue by concluding that Mr Shanto had to wear a visitor’s pass to get access to the workplace, since he had already held several meetings with the union members.
5. 710. Concerning the surveillance arrangements denounced by the complainant, the Government reports that, according to the company, the introduction of cameras was decided in order to ensure the security of the enterprise following threats made by the trade union. Cameras would be installed at different places including the workers’ mess room.
6. 711. Concerning the disclosure of union membership to the management, the Government indicates that the trade union itself had requested that matters pertaining to its members be addressed to the union and not to individual members. In the management perspective, it is specifically in order to abide by this request of the STEP that the employees were asked if they were members of the trade union.
7. 712. The Government added to its own reply observations received from the MEF as well as the company’s views on the issues raised by the complaint, communicated to the MEF.
8. 713. In a communication dated 16 January 2012 addressed to the Government, the MEF observes that the Employment Relations Act (Act No. 32 of 2008) provides adequate protection regarding trade union membership rights. More generally, the national legislation embodies the principles of freedom of association as laid down in the ILO Conventions and provides a mechanism to address any alleged infringements of rights. The MEF regrets that the complainant did not exhaust the remedy statutorily provided in the domestic law before presenting the complaint before the Committee. The MEF illustrates its point by referring to the ruling of the ERT on the complaint made by the representative of the STEP. The Tribunal did act promptly and concluded its proceedings in a timely manner to allow the aggrieved party to pursue its trade union activities.
9. 714. The company provided detailed observations on each of the issues raised in the complaint. In the first place, the company acknowledged that the STEP was granted voluntary recognition some 18 years ago and that there has been a long-standing partnership over the years. According to the company, 24 workers were members of the union out of a total of 121.
10. 715. With regard to the alleged intimidation of workers to withdraw themselves from the trade union by the signing of a resignation letter prepared by the company, the company denies the affirmation of the FTU that workers were intimidated to withdraw from the STEP. The withdrawal letters were written by the workers themselves without any coercion since they withdrew from the union at their own free will. With regard to the additional information submitted by the FTU on the case of Mr Daniel Jean Louis, the company pointed out that the meeting referred to by the union was in fact a disciplinary committee set up under section 38(2)(ii) of the Employment Rights Act 2008, so as to afford Mr Daniel Jean Louis an opportunity to answer charges of failure to resume duty on 10 August 2011 and/or report to the sales manager by 22 August 2011. The company indicates that absences from work without good and sufficient cause are deemed to be a unilateral breach of contract of employment as per law (the company provided a copy of the letter of charges). The company added that, as required under section 38(4) of the Employment Rights Act, Mr Jean Louis was represented by Mr Shanto, representative of the STEP, during the proceedings of the disciplinary committee. On the basis of the report of the disciplinary committee which found the acts, doings and/or omissions of Mr Jean Louis as tantamount to serious misconduct, the company terminated his employment on 18 October 2011. The company adds that Mr Jean Louis withdrew as a member of the union of his own volition on 29 June 2011, and rejoined the union as a member on 1 August 2011.
11. 716. With regard to the alleged anti-union campaign, the company explains that it had no ulterior and sinister motive when it affixed a copy of the press article dated 2 June 2011 on the noticeboard situated in the workers’ mess room. It only wanted to draw the attention of its workers to the acts and doings of a trade union which led to the closure of an enterprise. The press article was subsequently removed from the noticeboard. The company asserts that in a press conference, Mr Shanto threatened to boycott its products. The secretary of the union phoned the residence of the general manager of the company requesting his residential address. In response to such a threat which could adversely affect its commercial interest, the company served a mise en demeure formally prohibiting Mr Shanto from launching any such illegal campaign of boycott. However, in spite of the mise en demeure served to Mr Shanto in August 2011, the latter addressed a letter on 31 October 2011 to the CEO of a company producing dry noodles, for which the company is the main distributor, informing him of the trade union’s decision to undertake a public local campaign for a boycott of the products of the company.
12. 717. Concerning the alleged prohibition to hold trade union meetings on the premises of the company, the general manager stated before the ERT that he had no intention to unreasonably deny Mr Shanto entry to the workers’ mess room to hold trade union meetings with its members, provided Mr Shanto agreed, as per the visitor’s policy of the company, to sign in and wear the visitor’s pass when he stayed on the company’s premises and to return it to the receptionist before departure. Since the Vice-President of the ERT informed Mr Shanto that he was a visitor when he went to the employer’s premises, the latter withdrew the case from the ERT. This matter is now considered by the company to be settled.
13. 718. Concerning the surveillance arrangements denounced by the complainant, the company admits that 24 cameras, including one in the mess room, had been installed on the premises for safety and security reasons. The mess room hosts the individual lockers of workers and a refrigerator where workers may store their meals and therefore needs constant surveillance. Other amenities without any camera are provided to the workers as changing rooms. The management asserts that arrangements have been made for a covered space in the company premises where both trade union and management meetings can be held. Management would also use the covered space for holding meetings with its workers.
14. 719. Finally, with regard to the disclosure of union membership to the management, the company explains that the management had always had an attentive ear to complaints raised by its workers irrespective of whether or not they are members of the trade union. However, according to the company, Mr Shanto misconstrued this attitude of the management to resolve workers’ complaints and during a meeting held before the Commission for Conciliation and Mediation (CCM) on 18 May 2011 he complained that management was discussing terms and conditions of employment directly with individual workers who are members of the trade union. As a result, the Commission advised the management that it should discuss with the trade union issues concerning union members. Consequently, when a worker calls on the management, he is asked whether or not he is a member of the trade union, this to ensure compliance with the advice of the CCM.

C. The Committee’s conclusions

1. 720. The Committee observes that in this case the complainant alleges anti-union practices by Chue Wing & Co. Ltd (ABC Foods), a private company trading in various food products for local market and exportation, against its affiliate, the STEP. The Committee notes that, according to the allegations, the anti-union practices against the STEP, which was recognized by the company for more than 18 years, started in December 2010, further to the external appointment of a new general and sales manager at the company.
2. 721. The Committee notes that, according to the complainant, the anti-union practices by the management include the intimidation of workers to withdraw themselves from the trade union by the signing of a resignation letter prepared by the company, an anti union campaign via a press article placed on the company’s noticeboard in the workers’ mess room, the prohibition to hold trade union meetings in the workers’ mess room, which led the trade union to file a complaint against the company before the ERT, a surveillance arrangement of the workers’ mess room by the installation of cameras on the premises, and the refusal from the management to provide assistance to union members in relation to working condition issues.
3. 722. With regard to the alleged intimidation of workers to withdraw themselves from the trade union by the signing of a resignation letter prepared by the company, the Committee takes note of the statement of the Government according to which the company denied having intimidated any union member to withdraw from the STEP. The Government also indicated that an investigation conducted by officers of the Ministry of Labour found that none of the former members of the union have been coerced to withdraw from the union. However, since it was found that the sales manager admitted that he provided assistance to one union member, at his request, to write his resignation letter, the Government indicated that it had verbally cautioned the management on the relevant provisions of the Employment Relations Act pertaining to the basic workers’ rights to freedom of association and protection of workers’ trade unions against act of interference. The Committee takes note of this information and wishes to recall Article 2 of Convention No. 98, which provides that workers’ and employers’ organizations shall enjoy adequate protection against acts of interference in their establishment, functioning or administration. The Committee is of the view that acts such as management drafting of a union resignation letter constitutes a grave interference in the functioning of workers’ organizations and expects that the Government will ensure that the company will fully respect this principle in the future.
4. 723. With regard to the alleged anti-union campaign, the Committee observes that the management had admitted in its statement that it placed on the noticeboard of the workers’ mess room copies of press articles on the conference given by the representative of the STEP, in order to apprise all its employees of a “boycott” campaign set by the union. The management asserts that its intention was to draw the attention of the workers to the acts and doings of the trade union which led to the closure of an enterprise. The Committee further notes that, at the request of the Ministry of Labour, the management withdrew these articles from the noticeboard and this matter would appear to be resolved.
5. 724. The Committee notes that in reply to the allegation concerning the prohibition to hold trade union meetings, the Government supports that the conflict occurred from the fact that the management had requested the representative of the STEP – namely Mr Shanto – to wear a visitor’s pass when proceeding to hold any meeting on the premises. According to the management, Mr Shanto refused to wear the visitor’s pass and the union referred the matter to the ERT. However, since the ERT resolved this issue by concluding that Mr Shanto had to wear a visitor’s pass to get access to the workplace, the union dropped the case. In this regard, the Committee wishes to recall that workers’ representatives should be granted access to all workplaces in the undertaking where such access is necessary to enable them to carry out their representation function. Furthermore, trade union representatives who are not employed in the undertaking but whose trade union has members employed therein should be granted access to the undertaking. The granting of such facilities should not impair the efficient operation of the undertaking concerned [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, paras 1104 and 1105]. The Committee observes the statement that since then Mr Shanto had met with union members on the premises of the company on several occasions. In these circumstances, the Committee will not pursue its examination of this allegation.
6. 725. With regard to the surveillance arrangements denounced by the complainant, the Committee notes the company’s argument that it had to invest in the installation of several cameras at different places including the workers’ mess room for security reasons. The company added that the mess room hosts the individual lockers of workers and a refrigerator where workers may store their meals and therefore needs constant surveillance. Consequently, the company maintained the measures. However, the company asserts that other amenities without any camera are provided to the workers as changing rooms. The company further asserted that arrangements had been made for a covered space in the premises where trade union meetings could be held. Management would also use the covered space for holding meetings with the workers. While noting the security reasons invoked, the Committee nevertheless recalls that the right to organize union meetings is an essential aspect of trade union rights. The maintenance of camera surveillance in rooms set aside for trade union meetings is likely to produce an intimidating effect on trade union bodies and members and may give rise to employer interference in a manner contrary to the principles of freedom of association in relation to trade union meetings. The Committee expects that the Government will ensure that the new covered space referred to by the company for future trade union meetings will be free from camera surveillance.
7. 726. Finally, concerning the alleged refusal of the management to provide assistance to workers who are union members, the Committee notes the company’s explanation that the representative of the STEP misconstrued the openness of the management to resolve workers’ complaints and during a meeting held before the CCM, on May 2011, he complained that the management was discussing terms and conditions of employment directly with individual workers who are members of the trade union. Since, the Commission advised the company that it should discuss with the trade union issues concerning union members, now when workers call on the management, they are asked whether or not they are members of the trade union, this to ensure compliance with the advice of the CCM. While it takes note of the company’s explanation, the Committee is of the view that the issue of a management requesting its employees to state whether or not they belong to a union, even though this may not be intended to interfere with the exercise of trade union rights, may naturally be regarded as such an interference and felt to be intimidating to union members. The Committee therefore requests the Government to review this matter with the STEP and the company so as to arrive at a mutually satisfactory manner of proceeding that ensures that no worker is prejudiced or intimidated in his or her employment by reason of his or her trade union membership.
8. 727. As a general observation, the Committee notes with regret that this case concerns a number of allegations of infringements of the principles of freedom of association by the company but welcomes the rapid action taken by the Government with a view to resolving them. While acknowledging the intervention of the Government to solve the issues raised by the FTU by means of various tripartite meetings held at the level of the Conciliation and Mediation Division of the Ministry of Labour, Industrial Relations and Employment, the Committee expects that the observance of the principles of freedom of association recalled in this case will enable constructive and harmonious industrial relations between the company and the STEP in the future.