Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 355, Novembre 2009

1. 891. The complaint is contained in a communication from the Federation of United Workers (FTU) dated 31 October 2008. The Government submitted its observations in a communication dated 26 March 2009.
2. 892. 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. 893. In its communication of 31 October 2008, the FTU alleges that the construction company Phil Alain Didier Co. Ltd (PAD) has refused to recognize its affiliate, the Syndicat des Travailleurs des Etablissements Privés (STEP) and carried out anti-union acts against its members.
2. 894. In October 2006 the manual grade workers of the PAD joined STEP, electing Jean Hensley Martinet (labourer) and Jean Claude Lagaillarde (lorry driver) as workplace representatives. Shortly after, when the procedure for recognition of the STEP by the company was set in motion before the Industrial Relations Commission (IRC), the management began to threaten the workers. The matter was reported to the Minister of Labour by a letter dated 1 November 2006 (copy attached to the complaint).
3. 895. During the same period, the PAD instructed Mr Lagaillarde to remain idle from his position as a permanent lorry driver, a position he occupied for more than 13 years. The matter was again reported to the Minister of Labour in a letter dated 21 December 2006 (copy attached to the complaint). In addition, Mr Martinet was charged by the company of being in possession of company property without authorization. He was arrested, released on bail and shortly dismissed. The police initiated criminal proceedings against him.
4. 896. The FTU furthermore states that, despite the fact that in July 2008 the IRC ruled that the company should recognize the STEP, the trade union’s request for a first meeting has been categorically rejected by the PAD.
5. 897. Mr Lagaillarde was subsequently suspended from duty on 25 September 2008 and dismissed on 2 October 2008. Mr Lagaillarde was charged by the company of having been seen by the security putting something like rock-sand or cement in the fuel tank of a company car. Police initiated a criminal case against him too. The complainant insists that in both cases the company security guards were used.

B. The Government’s reply

1. 898. In its communication dated 26 March 2009, the Government states that the STEP applied, as required under section 56(1) of the Industrial Relations Act (IRA) of 1973, to the IRC to be recognized by the PAD for collective bargaining purposes. The application was granted on 2 July 2008 but, following the company’s refusal for a meeting, the union made an application to the Permanent Arbitration Tribunal (PAT), by virtue of section 59(1) of the IRA, for an order to enforce the IRC’s recommendations. The case before the new Employment Relations Tribunal, that has been established under the new Employment Rights Act of 2008, has been scheduled for 9 April 2009.
2. 899. The Ministry of Labour, Industrial Relations and Employment carried out investigations on the allegations reported by the STEP in letters dated 1 November 2006 and 21 December 2006. The PAD denied the allegations of intimidation and use of repressive language against several workers, as well as the allegations of harassment and intimidation of Mr Lagaillarde. According to the company, Mr Lagaillarde was at no time requested to remain idle, and from 1 to19 December 2006, performed several trips for the company, as per details attached to the Government’s reply.
3. 900. In a meeting held at the Ministry on 19 June 2007, the trade union’s negotiator agreed to adduce evidence to support the allegation of use of repressive language, intimidation and harassment (the report of the meeting has been provided by the Government). Subsequently, the union informed an officer of the Ministry that two workers had volunteered to adduce evidence and that they would call at the Ministry during their holidays to give evidence. The workers, however, did not turn up. When contacted again by the Ministry, the union stated that no worker was interested in giving evidence in the matter. The Government concludes that, in the absence of evidence, it was not possible to proceed further with the case.
4. 901. With regard to the dismissal of Mr Martinet, the Government states that according to the Police Commissioner, the security manager of the company reported that persons unknown had stolen a mobile phone he had forgotten on the bonnet of a van in the yard of the company on 10 January 2007. On 26 February 2007, the security manager made another statement to the police saying he received a phone call from the gate informing him that Mr Martinet was caught with a mobile phone identical to the one stolen and, on being questioned, could not give any explanation. The serial number of the mobile phone was checked and it was found to be the one reported stolen. Mr Martinet was arrested then released on bail. He is being prosecuted before the District Court for “Larceny by person in receipt of wages” and the trial has been scheduled on 6 June 2009. On 24 January 2007, Mr Martinet was dismissed on a charge of having been found on 15 January 2007 in possession of a cellular phone belonging to the company which was lost. He appeared before a disciplinary committee on 22 January 2007 and was duly assisted by counsel. On 29 January 2007, Mr Martinet lodged a complaint with the Ministry of Labour, Industrial Relations and Employment to claim compensation for unjustified dismissal. By virtue of section 15 of the Industrial Court Act, the Ministry referred the case to the Industrial Court with a view to have it settled amicably in chambers between the parties. As the case was not settled, the Ministry is now awaiting the outcome of the criminal case before lodging a plaint before the Industrial Court. The Government emphasizes that, as a matter of principle, in cases of dismissal from theft and where the police is prosecuting the worker, the Government waits for the Court decision.
5. 902. As regards the dismissal of Mr Lagaillarde, the Government states that he appeared before a disciplinary committee on 30 September 2008, and was duly assisted by his trade union representative. A case of “Interfering with motor vehicle” against Mr Lagaillarde was reported by the PAD to the police. An inquiry by the police has been completed and the matter has now been referred to the Director of Public Prosecution for decision. Mr Lagaillarde reported a complaint to the Ministry of Labour, Industrial Relations and Employment to claim compensation for unjustified dismissal. As the PAD management is not agreeable to make any statement, Mr Lagaillarde informed the Ministry of his intention to proceed with the case on his own.
6. 903. The Government adds that in the course of inquiries carried out, the PAD management averred that STEP has never notified the appointment of Messrs Martinet and Lagaillarde as workplace representatives. The Mauritius Employers’ Federation (MEF), to which the company is affiliated, did not submit its views on the allegations.
7. 904. The Government points out that the matter cannot be deemed to be a complaint against the Government of Mauritius as the PAD is a private company and it is more a matter between a private company and two employees. Also, the Government indicates that there cannot be immunity as regards the application of the law of the land. Until the cases of Mr Martinet and Mr Lagaillarde are heard and adjudicated by the Court, the Government states it is premature for the union to conclude that there has been a violation of trade union rights. Finally, the Government concludes that further communication will be addressed once the matter is determined by the Court.

C. The Committee’s conclusions

1. 905. The Committee observes that in this case the complainant organization alleges anti-union discrimination and the refusal on the part of the private construction company PAD to recognize STEP. In particular, the complainant alleges the dismissal of two elected STEP workplace representatives, one of which took place shortly after the union requested legal recognition before the Industrial Relations Commission.
2. 906. The Committee notes the Government’s statements to the effect that: (1) the case before the new Employment Relations Tribunal for an order to enforce the IRA’s recommendations to have STEP recognized by the PAD company for collective bargaining purposes has been scheduled on 9 April 2009; (2) investigations were carried out by the Ministry of Labour, Industrial Relations and Employment into the allegations of intimidation and use of repressive language against several workers and allegations of harassment and intimidation against Mr Jean Claude Lagaillarde by the PAD management; (3) PAD denied all allegations and provided details on the several trips performed by Mr Lagaillarde for the company, whereas STEP did not provide evidence of the allegations; (4) the trial against Mr Martinet for “Larceny by person in receipt of wages” was scheduled for 6 June 2009 and the Ministry is awaiting the outcome of the criminal case before lodging a plaint before the Industrial Court; (5) the inquiry by the police against Mr Lagaillarde for alleged “Interfering with motor vehicle” has been completed, the matter has now been referred to the Director of Public Prosecution for decision and the Ministry is awaiting the outcome; and (6) according to the management of the PAD, STEP has never notified the appointment of Messrs Martinet and Lagaillarde as workplace representatives.
3. 907. With regard to the alleged refusal by the PAD to recognize STEP, the Committee recalls the importance it attaches to the principle according to which recognition by an employer of the main unions represented in the undertaking, or the most representative of these unions, is the very basis for any procedure for collective bargaining on conditions of employment in the undertaking [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 953] and requests the Government to keep it informed of the proceedings before the Employment Relations Tribunal and to provide it with a copy of the judgement.
4. 908. The Committee notes more generally the Government’s statement that the matter cannot be deemed to be a complaint against the Government of Mauritius as the PAD is a private company and it is more a matter between a private company and two employees. The Committee recalls in this regard that the ultimate responsibility for ensuring respect for the principles of freedom of association lies with the Government [see Digest, op. cit, para. 17]. The Government is responsible for preventing all acts of anti-union discrimination and it must ensure that complaints of anti-union discrimination are examined in the framework of national procedures which should be prompt, impartial and considered as such by the parties concerned [see Digest, op. cit., paras 816 and 817]. The Committee notes the efforts made by the Government to resolve the question of the dismissal of Mr Martinet through an amicable settlement and that, as this was not possible, its indication that it was awaiting the judgement of the criminal case before putting the matter before the Industrial Court as the two matters were inextricably linked. Observing that the matters relating to the dismissals of Messrs Martinet and Lagaillarde are pending before the courts and the competent authorities, the Committee notes the Government’s indication that it will keep it informed about the outcome of the criminal proceedings against them and expects that, should they be acquitted of the charges, steps will be taken to reinstate them in their posts and to pay wages due and other legal entitlements. It requests the Government to keep it informed in this regard.