Demande directe (CEACR) - adoptée 2008, publiée 98ème session CIT (2009)

The Committee notes with interest the adoption of the Employment Relations Act, 2008 (ERA), which once proclaimed, will replace the Industrial Relations Act 1973 (IRA).

The Committee notes that the full text of the ERA is not yet available as the Act is not yet in force (proclaimed) and the text posted on the site of the National Assembly does not contain the amendments proposed at the committee stage. As a result, while taking due note of the excerpts and information provided by the Government on the ERA, the Committee will only be in a position to fully examine the conformity of the ERA with the Convention once it has at its disposal the complete text. The Committee requests the Government to indicate in its next report progress made with regard to the proclamation of the ERA and to communicate the complete text as soon as it is available, so that the Committee may examine its conformity with the Convention.

The Committee notes from the Government’s report that the ERA has addressed the following issues previously raised in the Committee’s comments with regard to the Employment Relations Bill (ERB): (i) section 13(1)(c) guarantees the right to organize to all workers regardless of whether they have already worked “for an aggregate period of not less than 18 months”;
(ii) section 5(1)(f) lowered the minimum membership requirement for the establishment of an employers’ organization to five employers; (iii) section 28 of the ERA provides that the registrar may investigate into any complaint against a trade union only if it is made by not less than 5 per cent of the members; (iv) section 45(c) provides that the deduction of trade union fees from a workers’ wage shall cease to have effect in the manner provided for in the rules of the trade union; (v) section 83(2) of the ERA provides that a worker shall not be entitled to any remuneration while on strike unless otherwise agreed by the parties; (vi) sections 85(2), 87(2) and 90(5) of the ERA concerning the composition of the Employment Relations Tribunal, the Commission for Conciliation and Mediation and the National Remuneration Board provide that the members of these bodies shall be appointed by the minister after consultation with the most representative organizations of workers and employers; (vii) section 99 of the ERA lists the matters which “may” (instead of “shall”) be taken into account by the Tribunal, Commission or Board in the framework of their activities.

Article 3 of the Convention. Right to strike. The Committee further notes that on the basis of the excerpts and information communicated by the Government, certain discrepancies remain between the ERA and Article 3 of the Convention with regard to the right to strike. In this respect, the Committee also notes certain comments made by the International Trade Union Confederation (ITUC) in a communication dated 29 August 2008.

Strikes for matters of general economic policy. The Committee’s previous comments related to the provisions of the ERB which made the staging of solidarity strikes, or strikes related to matters of general economic policy or strikes linked to negotiations above the enterprise level impossible. The Committee notes from the Government’s report that there is no specific provision in the new legislation prohibiting solidarity strikes and that provision has been made in section 37 of the ERA for recognition at industry level of federations or confederations which may engage in negotiations with any employer or groups of employers. The Committee notes that the Government does not address the possibility of negotiations at national level or strikes related to matters of general economic policy. While noting that these issues may be clarified once the Committee has the full text of the ERA at its disposal, the Committee requests the Government to specify the provisions which allow for negotiations to take place at the national level and strikes to be staged for matters of general economic policy.

Cooling-off period. The Committee’s previous comments concerned the excessive duration of the two month cooling-off period established in the ERB as well as the possibility to extend this period indefinitely at the initiative of one party to the dispute. The Committee notes from the Government’s report that a new labour dispute settlement mechanism has been established. However, the Government does not provide any information as to whether a cooling-off period is still required while the excerpts of the ERA communicated to the Committee do not concern the requirements for the staging of a lawful strike. The Committee further notes that according to the ITUC, the ERA imposes a 21 day cooling-off period before a strike can begin. The Committee requests the Government to indicate in its next report the requirements for the staging of a lawful strike and to transmit the full text of the ERA.

Prerequisites for lawful strikes. The Committee also notes that under section 69(6), “where the parties decline to refer the dispute for voluntary arbitration, the party having reported the labour dispute (to the Commission for Conciliation and Mediation) may have recourse to strike or lockout, as the case may be …”. The Committee observes that this provision introduces an additional requirement for the lawful staging of a strike, i.e., to have referred the dispute to conciliation. The Committee is of the view that if conciliation has failed, trade unions should be able to stage a strike regardless of whether they referred the dispute to conciliation in the first place. The Committee therefore requests the Government to indicate in its next report the measures taken to amend section 69(6) by omitting the words “having reported the labour dispute”.

Strike ballot. In its previous comments, the Committee had requested the Government to amend section 81(3) of the ERB so as to take account only of the votes cast in determining the outcome of a strike ballot. The Committee notes that according to the Government, this provision has not been amended in the ERA as the Government considers that the requirement for a majority of workers to be in favour of a strike is reasonable and, Mauritius, being a small island, factual elements such as the scattering or geographical isolation of work centres, which could render a strike difficult or impossible in practice, do not arise; thus, the unions can, without difficulty, convey the workers to a given place and carry out the ballot. The Committee observes that as a result, the ERA requires for a strike ballot to be successful, to obtain an absolute majority of the workers concerned by the dispute. The Committee once again emphasizes that if a member State deems it appropriate to establish in its legislation provisions which require a vote by workers before a strike can be held, it should ensure that account is taken only of the votes cast (see General Survey of 1994 on freedom of association and collective bargaining, paragraph 170). The Committee therefore requests the Government to indicate in its next report the measures taken to amend the provisions of the ERA concerning strike ballots so as to take account only of the votes cast in determining the outcome of a strike ballot.

Compulsory arbitration. The Committee’s previous comments concerned the possibility for the Prime Minister to refer a dispute to compulsory arbitration where its duration threatened to affect an industry or service or employment (section 85(1)(b) of the ERB). The Committee notes from the Government’s report that section 82(b) of the ERA provides that where the duration of a strike or lockout which is not unlawful is such that an industry or a service is likely to be seriously affected, or employment is threatened, or where the Prime Minister is of the opinion that the continuance of the strike or lockout may result in a real danger to life, health or personal safety of the whole or part of the population, the Prime Minister may apply to the Supreme Court for an order prohibiting the continuation of the strike or lockout. According to the Government, under the new legislation it will be for the Supreme Court to refer the parties to the labour dispute to the Tribunal for arbitration. The Committee considers that this amendment does not substantively change the fact that compulsory arbitration may be introduced at the initiative of the authorities, including the courts. The Committee once again notes that a system of compulsory arbitration which makes it possible to prohibit virtually all strikes, is acceptable only at the request of both parties to a dispute, in the case of disputes in the public service involving public servants exercising authority in the name of the state or in essential services in the strict sense of the term, namely, those services whose interruption would endanger the life, personal safety or health of the whole or part of the population. Thus, a system of compulsory arbitration would not be appropriate under the Convention on the ground that the duration of a strike threatens to affect an industry or service or employment. The Committee therefore requests the Government to indicate in its next report the measures taken to amend section 82(b) of the ERA so that compulsory arbitration may be imposed by the Supreme Court only in the cases where this is acceptable under the Convention.

Minimum services. The Committee notes from the Government’s report that section 82(a) of the ERA provides that where the duration of a strike or lockout which is not unlawful is such that an industry or a service is likely to be seriously affected, or employment is threatened, or where the Prime Minister is of the opinion that the continuance of the strike or lockout may result in a real danger to life, health or personal safety of the whole or part of the population, the Prime Minister may apply to the Tribunal for an order for the establishment of a minimum service. The Committee also notes that the third schedule to the ERB contained a list of services requiring a minimum service and that hotel services figured on that list. The Committee considers that a minimum service would be appropriate in services of public utility (services d’utilité publique) in order to avoid damages which are irreversible or out of all proportion to the occupational interests of the parties to the dispute, as well as damages to third parties, namely the users or consumers who suffer the economic effects of collective disputes (General Survey, op.cit., paragraph 160). The Committee notes that the fact that a service, industry or employment may be threatened by the duration of a strike does not in and of itself justify the introduction of a minimum service; furthermore, hotel services are not services of public utility. The Committee therefore requests the Government to indicate in its next report the measures taken to amend section 82(a) so that a minimum service may not be imposed for the mere reason that the duration of a strike may affect a service or industry or employment. It also requests the Government to indicate whether hotels still figure on the list of services in which a minimum service may be imposed under the ERA and, if that is the case, to indicate in its next report the measures taken to remove the hotel services from the list of minimum services.