Industrial Relations in Mauritius

MINISTRY OF LABOUR, INDUSTRIAL RELATIONS AND EMPLOYMENT

WHITE PAPER ON A NEW LEGAL FRAMEWORK FOR INDUSTRIAL RELATIONS IN

MAURITIUS

Promoting Dialogue for Development and

Social Justice

September 2004

TABLE OF CONTENTS

Introduction

Industrial Relations in a changing economic and social environment

Industrial Relations in Mauritius

A new legislative framework for industrial relations in Mauritius

Main features of the proposed new legislation

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1. INTRODUCTION

1.1 There is general consensus today, that the industrial relations legislation, which dates as far back as 1973, needs to be reviewed in order to keep pace with the profound changes that have taken place in the labour market and the economy both at national and international level and also to establish an industrial relations system which would promote social progress and economic growth.

1.2 There have been several attempts to review the industrial relations legislation since 1983, but no consensus could be reached. A Select Committee was appointed in 1983 to make recommendations to Government in “relation of the repealing and replacing of the Industrial Relations Act as subsequently amended”. In 1990, a Special Law Review Committee, chaired by Mr H. Garrioch looked into a certain number of legislation, including the Industrial Relations Act (IRA). In 1994, a Trade Union and Labour Relations Bill was introduced in Parliament, but was not adopted. In 1998, the International Labour Office (ILO) submitted a Draft Labour Relations Bill, in the context of a labour reform project, but the then Government did not proceed with the Bill.

1.3 The wage determination mechanism, which is an integral part of the industrial relations legislation, has also been under review since the 1980s’. Three reports have been prepared under the auspices of the ILO. In 1986, the report of Professors B.C. Roberts and C. Robinson examined the prevailing system of regulation of wages and industrial relations in the private sector. In 1994, the report of J. Arai recommended the establishment of a National Pay and Productivity Council. The trade unions did not agree with the proposal. In 1998, the report of Z. Shaheed proposed a Pay Advisory Council. Government proposed to introduce a Central Pay Organisation Bill in 1999 with a view to create a Pay Advisory Council, but the Bill was subsequently withdrawn. In 2002, Government commissioned a study on the wage determination by a Singaporean consultant, Professor Lim Chong Yah, who recommended the replacement of the existing wage determination body by a tripartite National Wages Council, the development of collective bargaining and linking wage increases to productivity. The report was rejected by the trade unions.

1.4 In 2000, the Government expressed its firm political will to review the industrial relations legislation. This was confirmed by the statement of the President at the Opening of the First Session of the Third Assembly in October 2000 that “a comprehensive effort for the modernisation of our labour laws will be undertaken comprising the replacement of the Industrial Relations Act”1.

1.5 Subsequently, at the request of the Government, a legal expert from ILO, Mrs D. Rishikesh visited Mauritius in July 2001 and made

1 President’s Speech, October 2000

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recommendations relating to the ratification of Convention No 87 on Freedom of Association and Protection of the Right to Organise.

1.6 In June 2003, a technical committee was set up at the Ministry of Labour, Industrial Relations and Employment to examine all the previous reports and to review the industrial relations legislation. Consequently, consultations were held with the thirteen Federations of trade unions, which submitted a common memorandum on 30 January 2004 and the Mauritius Employers’ Federation, which submitted its proposals on 26 March 2004.

1.7 The assistance of ILO was sought for the organisation of a tripartite seminar to clarify certain basic concepts underlying the Conventions No 87 and No 98 on the Right to Organise and Collective Bargaining. In view of the difficulties of planning the mission of the ILO experts, it was only in July 2004 that the tripartite seminar was held with the participation of Mr Jean Claude Javillier, Director of International Standards Division of ILO and Mr Bernard Gernigon, Chief of Freedom of Association Branch. The seminar helped to build a common understanding and develop a broad consensus among the trade unions’ and employers’ organisations on the guiding principles that should underpin the new industrial relations legislation.

1.8 The principles of freedom of association and the right to organise are embodied in ILO Conventions No 87 and No 98, which form part of the eight core ILO conventions. Mauritius has not yet ratified Convention No 87 as there are certain areas of non-conformity in our industrial relations legislation. It is worth pointing out that Mauritius has ratified 7 out of the 8 core conventions. In accordance with the Declaration on the Fundamental Principles and Rights at Work and its Follow Up, ILO has been urging Mauritius to ratify Convention No 87.

1.9 This White Paper has been prepared after taking into consideration all previous reports since 1983, the views and proposals of the federations of trade unions and the employers’ organisations, the recommendations of the ILO Committee on the Freedom of Association and the deliberations of the tripartite seminar held in July 2004. It has attempted to ensure conformity with the Conventions No. 87 and No. 98, keeping in view the statement of Mr Javillier, Director of International Standards Division of ILO that there is no common and uniform formula applicable to each and every State, but each country has to elaborate its own policies, by taking into account its economic and social context, while ensuring respect of the fundamental rights and freedoms.

1.10 As past experience has shown, consensus on industrial relations legislation is difficult to achieve and total consensus is almost impossible. But it has been noted with satisfaction that there has been considerable progress in the thinking of the social partners and over the years, a convergence of views has emerged on several issues. Thus, both trade

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unions and employers agree on the need to develop collective bargaining, good faith negotiations, more efficient dispute resolution mechanisms and peaceful and voluntary resolution of disputes by the social partners themselves. At the tripartite seminar held in July 2004, social partners came to terms with the fact that while being a fundamental right, strike may be subjected to certain conditions and is to be used as a last resort after all attempts at conciliation and mediation have failed.

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2. INDUSTRIAL RELATIONS IN A CHANGING ECONOMIC AND SOCIAL ENVIRONMENT

“The fundamental principle of freedom of association and the right to collective bargaining is a reflection of human dignity. It guarantees the ability of workers and employers to join and act together to defend not only their economic interests but also civil liberties such as the right to life, security, integrity and personal and collective freedom.

It has a positive effect on economic development by ensuring that the benefits of growth are shared and promoting productivity, adjustment measures and industrial peace.2”

2.1 We live in an era of dynamic labour markets, in which employment relations have become vital for the promotion of social justice and economic development. Over the past thirty years, the concept of work and employment relations have undergone far reaching transformations with the advent of new technologies, the widening of the informal sector, influx of labour migration, increased participation of women in the labour market and the adoption of flexible market policies. A study of the International Institute of Labour Studies points out that “practices such as subcontracting, outsourcing, and the hiring of temporary and part time workers, long considered as atypical work, are becoming more common… In the past, labour legislation and collective agreements embodying job security, wages and non-wage benefits have taken into account the requirements of a relatively homogeneous workforce that conformed to the normal employment pattern, characterised by full time jobs and stable career trajectories,” 3

2.2 In this changing context, the trade unions all over the world have experienced decreasing membership and have to cope with a more diversified workforce, more complex issues and broader societal concerns such as discrimination, harassment, work and family among others. They have equally to address the problem of increasing individualism among workers. Trade unions have to strengthen their capacity to participate in dialogue not only on wages and protection, but also on competitiveness and productivity and macro economic policies.

2.3 On the other hand, employers have been confronted to new challenges such as enterprise restructuring, more intense international competition and there is growing focus on the corporate social responsibility of enterprises and sharing of productivity gains. Continued emphasis is laid on conflict resolution through dialogue and partnership rather than on conflict and competition.

2 Organising for Social Justice – ILO 20043 Organised labour in the 21st century – International Institute of Labour Studies, Geneva

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2.4 ILO underlines that: “dialogue enables employers and workers to find ways to improve work performance and rewards and move away from the low-quality, low productivity and low-wage basement of the global market. Parallel to the democratic continuum….., there is an economic and social development continuum in which the practice of freedom of association and effective recognition to collective bargaining plays a major role”. 4 It has further indicated that the recognition by public authorities of good governance of the labour market based on respect for fundamental principles and rights at work makes a major contribution to stable economic, political and social development in the context of international economic integration, enlargement of democracy and the fight against poverty.5

2.5 The World Bank finds that there is no negative correlation between freedom of association, collective bargaining and economic outcomes. A study of the World Bank on Unions and collective Bargaining: Economic Effects in a global environment in 2002 finds that “freedom of association and collective bargaining are positively associated with the success of trade reform” and that “countries with high coordinated bargaining trends tend to be associated with lower and less persistent unemployment, less earnings inequalities, wage dispersion and fewer and shorter strikes”.6 The study also suggests that the “EPZ can become a testing ground for demonstrating that trade and labour standards can reinforce one another in raising the standard of living of poor countries”.

The Mauritian context

2.6 In Mauritius, the IRA was introduced in 1973 at a time of economic downturn, characterised by a low rate of growth, high level of unemployment and high rate of inflation. In the early years following independence, the economy grew slowly at the annual rate of 1.8 %. Unemployment peaked to 16% in 1972 and the rate of inflation reached 13.5 %.The economic climate impacted adversely on the labour situation, which started to deteriorate since 1964 with an increasing number of industrial conflicts. The number of stoppages of work attained its highest points in 1964, 1966, 1969 and 1971, with a total of 33, 15, 13 and 19 stoppages, respectively.

2.7 During the past 30 years, considerable changes have taken place in the social and the economic structure. The economy has moved from a mono-crop economy to an export-led industrial and service-based economy. This is reflected in the downward trend of employment in agriculture from 32.9% in the 1970s to 9.4% in 2003 and the increase in employment in the manufacturing sector by 148.3% from 1983 to

4 Organising for Social Justice – ILO 20045 Your Voice at Work – ILO - 20006 Unions and Collective Bargaining: Economic Effects in a global environment –World Bank, 2002

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1990. In recent years, manufacturing still has the highest proportion of total employment (27.1%) followed by Community, Social and Personal Services with 22.4% and Wholesale, Retail Trade, Restaurants and Hotels with 19.7%. Employment in construction increased by 61.3%, between 1983 and 1990, and by 47.7% between 1990 and 2003. In Wholesale, Retail Trade, Restaurants and Hotels, employment increased by 73.6 % from 1972 to 1990 and 107% from 1990 to 2003.

2.8 However, the composition of union membership did not evolve significantly following the changes in the sectoral distribution of employment. Over the last three decades, union membership has remained high in the agricultural sector even though employment has been declining in this sector. In 1974, agriculture had the highest rate of unionisation (43.2%) followed by Community, Social and Personal Services with a rate of unionisation of 31.2%, the construction sector 12 % and manufacturing 6.6 %. The level of trade union density fell continuously over time to attain 32 % in 1985, 29.3 % in 1995 and 24.5 % in 2000.

2.9 During the same period, trade union density increased in the Community, Social and Personal Services and passed from 39.9% in 1985 to 43.5 % in 1995 and 45.2% in 2000. However, the rate of union density remained low in the manufacturing sector, which had the highest proportion of employment, with 12.5% in 1985, 9.9% in 1995 and 11.9% in 2000. Similarly, emerging sectors like Wholesale, Retail Trade, Restaurants and Hotels and Financial Intermediation, Real Estate, Renting and Business Activities have a low rate of unionisation with 3.1% and 2.4%, respectively.

2.10 The low level of trade union density may be due to structural reasons such as the growth of the informal sector and atypical employment. For the year 2001, the share of the small sector as a percentage of GDP stood at 60 % and it is estimated that more than 220,000 persons operate in the informal economy. There is a larger concentration in the Wholesale, Retail Trade, Hotels & Restaurants (32%), followed by the Construction (16%) and Personal services sector (16%).

2.11 With these new market dynamics which are a consequence of globalisation, Mauritius has to address extremely complex labour market challenges. There has been a shift from industry to services and in the manufacturing sector and, a shift from mass production to more qualitative production. At the international level, there has been an international division of labour with low value added and labour intensive production moving to developing countries. The agriculture sector has been compelled to restructure while EPZ enterprises have been delocalising or reorganising their production processes in order to cut down costs. All these have led to job losses and employment insecurity. The existing sectors have to adjust to the new, stringent trade rules and increasing competition.

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2.12 On the other hand, Government has been encouraging the development of new sectors the ICT Sector, the sea food hub and the knowledge hub and is making serious efforts to attract investment and encourage job creation, which remain one of its main priorities. It has become imperative to adapt our industrial relations system to the changing economic and work environment in order to ensure our competitiveness, especially in the context of the waiving of the preferential trade treatment with the dismantling of the Multi Fibre agreement.

2.13 It is important to underline in this document, the fragility and vulnerability of small economies like ours, which are exposed to numerous external threats. In such economies, any breakdown in the industrial relations system or any threat to industrial peace and social stability may directly or indirectly affect other productive sectors or the whole economy. Peace and stability have been and will remain valuable assets for the country insofar as they encourage investment and employment creation. It is therefore, essential to ensure industrial peace and social stability, which are indispensable for investment and job creation. This emphasizes the need for a sound industrial relations based on strong partnerships.

2.14 Government believes that sound and healthy employment relations between employees, unions and employers will enhance performance, equity and fairness. It aims at encouraging a synergy which would lead to higher efficiency in the use of our physical and human resources and a high value and sustainable economy. Growth and innovation should go hand in hand with objectives of equity and respect of worker’s democratic and social rights.

2.15 Government is, therefore, proposing in this White Paper a new framework for industrial relations, which would foster dialogue in the interest of economic growth and social justice. The new legislation, which Government proposes to introduce, is premised on the fundamental principles underlying Conventions No. 87 and No 98.

2.16 The White Paper, therefore, proposes a shift from a conflict to an interest-based approach, social dialogue and social partnership as the central feature of our new industrial relations system. The proposed new industrial relations legislation aims at:

(a) Recognising the democratic rights of workers and trade unions and enhancing protection of those rights;

(b) Building a productive employment relationship through the promotion of good faith behaviour and mutual trust in all aspects of work relations;

(c) Promoting collective bargaining;

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(d) Encouraging voluntary settlement of dispute and promoting peaceful resolution of disputes; and

(e) Strengthening the dispute and conflict settlement mechanisms.

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3. INDUSTRIAL RELATIONS SYSTEM IN MAURITIUS.

3.1 Prior to 1973, the industrial relations legal framework was characterised by a collective laissez-faire approach and industrial disputes were left to the parties themselves. There was no obligation to refer disputes to the Labour Commissioner, who had no power of arbitration unless both employers and unions consented to such a practice and there was unrestricted right to strike, except in essential services. The Trade Disputes Ordinance of 1965 did not provide the proper machinery for the prompt settlement of disputes or for a coordinated approach to wage determination. Ad-hoc wages boards were set up under the Regulation of Wages and Conditions of Employment Ordinance, 1961.

3.2 In 1973, considering the situation as a threat to political and economic stability, the then Government introduced the IRA as “a response to the consistent demand for more effective communication and more industrial democracy and to the concepts and the legitimate aspirations of a modern society. It seeks to introduce confidence and stability to the system of free collective bargaining; it prescribes orderly procedures for the peaceful and the speedy settlement of disputes, and enunciates clear principles for the free association of workers and employers consistent with a proper degree of order and discipline.” 7

3.3 The Mauritian industrial relations system is said to have worked fairly well in maintaining industrial peace, and thus in contributing to increasing investment, employment creation and for economic development. The IRA brought fundamental changes to the industrial relations system by –

marking a shift from a voluntary to a more institutionalised regime of industrial relations;

providing new mechanisms and procedures for recognition of trade unions, collective bargaining, industrial dispute resolution and industrial action;

establishing institutional mechanisms for dispute resolution and arbitration;

making the right to strike subject to some specific procedures, namely: (i) an industrial dispute should be reported to the Minister, (ii) strike can be undertaken only if dispute has not been settled or has not been referred to the Industrial Relations Commission (IRC) or the Permanent Arbitration Tribunal (PAT); and (iii) the strike commences within 56 days from the day of receipt of the report by the Minister; and

7 Statement by the Minister of Labour and Industrial Relations in the Legislative Assembly -1973

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setting up the National Remuneration Board (NRB) to determine minimum wages and other working conditions for various industrial and occupational groupings. This has enabled the fixing of minimum wages in not less than 29 different sectors and about 85 % of employees in the private sector.

3.4 However, all the parties concerned concede that there are a number of areas which need to be improved in order to ensure a modern employment relations system that promotes freedom of association, collective bargaining and voluntary and peaceful dispute resolution, namely with regard to -

(a) Industrial Disputes

(i) Compared to international standards, Mauritius has achieved a good record of declining work stoppages. With the exception of 1979 general strike following a 30% devaluation of the rupee and the subsequent price increases when the number of mandays lost increased over 373,000, there has not been an excessive number of industrial conflicts for the last three decades. The level of industrial actions fell considerably as from the 1980s. The number of mandays lost averaged 4,531 in 2000. Most of the work stoppages took place either before a dispute was reported to the Minister or before it was referred to the IRC or the PAT.

(ii) Under the IRA, the definition of dispute is broad and does not distinguish between juridical and economic problems. In 2003, 21 disputes of right and 243 disputes comprising issues relating to right and interest were reported to the Minister. This creates a situation where problems, which should normally have been thrashed out by the Industrial Court, turned into a power game between the trade unions and employers to the detriment of the aggrieved worker/s.

(b) Dispute Resolution

(i) There is presently a heavy reliance on the existing institutional dispute settling mechanisms, thus discouraging the resolution of disputes by dialogue carried out in good faith by the social partners themselves. There has been a growing tendency to report disputes to the Minister at the first disagreement occurring during negotiations.

(ii) By operating as a quasi judicial body and limiting its role to making recommendations, the IRC is not operating as an effective conciliation institution.

(iii) The proceedings of the PAT, which follow those of a court of law, tend to be too formal. This formal approach does not provide the proper condition for fair compromise-conciliation and for quick settlement of disputes. The figures show that conciliation in a less rigid set up as a first level external intervention is more productive. The Conciliation and

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Mediation Service of the Ministry settles 65 % of the disputes referred to the Minister. The trade unions and employers have expressed a high degree of confidence in the Conciliation and Mediation Service of the Ministry.

(iv) The IRC and the PAT have often been criticised by employers and trade unions for undue delays. In the case law, Mauritius Stationery Manufacturers v The Permanent Arbitration Tribunal & Anor (2004 SCJ 168), the Supreme Court has highlighted this shortcoming and has pointed out that awards should be made in all diligence “since pursuant to section 85 (1) (c) of the Act, the lifespan of an award is limited to a period of not more than 2 years, the necessity of a timely decision from the Tribunal is all the more greater”. Though the situation has improved recently, it is felt that this problem would be more appropriately addressed if a time frame were fixed in the new legislation.

(c) Collective Bargaining

(i) Collective bargaining has been practised in very few cases, namely the Sugar Industry in 1994 and the Construction Industry in 2000, where wages and conditions of employment were settled at sectoral level. Enterprise based collective bargaining has been limited to the banking, telecommunications, hotel and aviation sectors. In general, the terms and conditions of employment are determined in the majority of sectors by compulsory arbitration or by Remuneration Orders.

(ii) While it is recognised that fixing of minimum wages and conditions of employment by the NRB has safeguarded the social rights of workers and maintained social stability, it is also felt that the heavy reliance of trade unions on the institutional mechanisms has hindered the development of voluntary collective arrangements and processes. The weaknesses of unions have also encouraged the use of such procedures. Unions often rely on dispute resolution procedures in order to obtain what they cannot obtain through direct collective bargaining

(iii) There are hardly any adequate statutory regulations and procedures for the promotion of collective bargaining in the present legislation. The IRA does not specifically deal with the negotiation process and with the legal regime of collective agreement. There is no obligation on employers to start negotiation and on employers and trade unions to bargain in good faith. Instead, the IRA favours a voluntary approach and sets broad parameters and procedures for recognition. It also sets guidelines in the Code of Practice for matters pertaining to the implementation of collective bargaining. This has not given the expected results. The adversarial industrial relations pattern, which has prevailed for many years, has prevented the development of voluntary collective agreements.

(d) Freedom of Association.

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(i) Collective bargaining raises the issue of freedom of association and trade union membership. The right to organise has been explicitly recognised in the IRA. Section 49 (1) protects in unambiguous terms the right of workers to be or not to be a member of a trade union and to participate in trade unions’ activities, including the right to seek and hold appointment or election as officers of a union. Section 49 (2) also protects the workers against discrimination, victimisation or termination of employment by employer in the exercise of this right. However, empirical evidence shows that it is difficult to enforce this provision as the onus of proof rests on the worker. The low penalty fine of Rs 2000 does not even act as a deterrent against anti-union discrimination.

(e) Trade union membership

(i) Trade union membership is an important corollary of collective bargaining. However, the IRA has not corrected the permissive effect of the Trade Union Ordinance 1954 and the Trade Disputes Ordinance of 1965, which encouraged the proliferation of trade unions. Instead, the registration procedures, the restriction of membership eligibility to trade and the formation of trade unions with only seven members have led, as pointed out by the trade unions themselves, to the fragmentation and weakening of trade unions.

(ii) The proliferation of trade unions has been substantial in the last three decades. The number of trade unions, which was 199 in 1977, has reached 320 in 2000 and 350 in 2003.

(iii) In 2003, 10 unions (3.6%) had more than 5,000 members, 38% had less than 100 members, about 59% had less than 300 members The level of trade union density averaged 12 % in the private sector in 2000. About 50% of the trade unions were representing public service employee and parastatal bodies.

(f) Administration of trade unions

The powers of the Registrar as regards the internal administration of trade unions are considered to be too excessive. This is viewed as being repressive, arbitrary and paternalistic by the trade unions. The intervention of the Registrar in the administration of the trade unions is viewed as a serious hindrance to the autonomy of these organisations.

3.6 Proposals of trade unions

In their memorandum, the federations of trade unions have proposed a new legislation which would establish democracy in industrial relations, reinstate fundamental rights, namely the right to strike, mechanisms for negotiation in good faith and the protection of minimal wages and working conditions for all workers. They have also requested

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the immediate ratification of Convention No. 87, the inclusion of the right to strike in the Constitution, the registration of collective agreements, the protection of workers from anti union discrimination and the recognition of trade unionists as human rights defenders.

3.7 Proposals of employers

The employers’ organisations have laid emphasis on voluntarism, flexibility and adaptability, the promotion of collective bargaining, the introduction of concession bargaining, the independent functioning of institutions, the promotion of sound human resource policies and practices, the review of the role of the NRB and setting up of a national wages council, among others.

3.8 Areas of convergence

The trade unions and employers’ organisations adopted a very constructive and open minded attitude in the tripartite seminar organised in July in collaboration with the ILO. They went beyond their initial proposals and there was a certain extent of consensus on the following:

(i) the IRA should be replaced by a new legislation to be in conformity with Conventions No 87 and No 98;

(ii) more autonomy should be given to the trade unions as regards the formulation of their rules and the administration of their organisations;

(iii) the new legislation should promote voluntary dispute resolution and employers and trade unions should be encouraged to settle disputes by themselves, with less intervention of the state;

(iv) Collective bargaining should be promoted; and (v) Strike should be recognised as a fundamental right to be used

as a last resort and subject to certain conditions.

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4. A NEW LEGISLATIVE FRAMEWORK FOR INDUSTRIAL RELATIONS IN MAURITIUS

4.1 It is proposed to introduce a new legislation to be known as the Employment & Labour Relations Bill. The term ‘employment relations’ is proposed in response to the new trend at the international level. The concept of employment relations shifts the focus to the workplace on the principle that sound relations should be built within the organisation and that disputes should be settled through dialogue at the workplace by the parties themselves. The proposed legislation marks a shift from power relations, control and trouble shooting to social dialogue and workplace cooperation.

4.2 The new legislation, therefore, sets out new rules for trade union administration, trade union membership, and collective bargaining and dispute resolution. The recommendations made at Section 5 of this document are motivated by the following considerations -

(a) Administration of Trade Unions

The need to ensure less intervention in the internal administration of trade unions, simplify the procedures for registration, reduce substantially the discretionary power of the Chief Registrar with respect to registration and administration of trade unions.

Note: The post of Chief Registrar will become effective on the proclamation of the Registrations of Associations (Amendment) Act 2004.

(b) Trade Union Membership

Encourage union membership and address the problem of multiplicity and fragmentation of trade unions by bringing the membership criteria from 7 to 30 members and removing the restriction of membership to trade. This would facilitate the growth of trade unions and the emergence of strong and across-the-board trade unions.

(c) Collective Bargaining

Promote good faith collective bargaining as a positive basis for quality employment relationships. The experiences of New Zealand and South Africa have been used extensively and new procedures have been proposed to make collective bargaining workable.

Promote interest-based bargaining and ensure that parties work together to generate reasonable options and outcomes based on objective standards rather than being determined by tactical behaviour, irrational behaviour or relative bargaining power.

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Facilitate the continued development of a more positive relationship by removing barrier issues such as union access to the workplace, access to information, recognition and time off facilities.

Recognize negotiating rights, accept access to the workplace, establishment of bargaining unit, duty to negotiate, procedure agreement, negotiation in good faith, disclosure of information and time off facilities as being mandatory. The recommendations of the Special Law Review Committee as regards the criteria for recognition have been adopted, with a slight amendment concerning negotiating rights. Provisions have also been made for collective bargaining to take place at sectoral level.

Make provisions for concession bargaining.

Make Remuneration Orders only in sectors and enterprises where collective agreements do not cover and protect workers adequately. The Labour Act should govern the conditions of employment of all workers and Remuneration Orders should only provide for minimum remuneration and specific conditions of employment where necessary.

Provide that collective agreement may contain less favourable conditions than those of the Remuneration Order to the extent that trade unions and employers so consent and the agreement is as a whole more favourable than the general conditions provided in the Remuneration Order. However, with a view to protecting the basic rights of workers, it is recommended that issues such as minimum wages prescribed in a Remuneration Order are not negotiable, except for reasons pertaining to the protection of employment and subject to the approval of the Commission for Conciliation and Mediation.

(d) Labour Disputes

Dispute resolution is considered an important corollary of free collective bargaining. The definition and procedures of dispute have been revisited to encourage more voluntary resolution of disputes by the parties themselves. A demarcation has been made between dispute of right and dispute of interest. Dispute of right has been excluded in the definition of dispute as it is considered that the judicial procedure is more effective in this case.

More emphasis is placed on conciliation at the workplace and power is given to the Minister to refer parties to the negotiating table if he is of the opinion that negotiation has not been carried out in good faith.

A three-pronged dispute resolution approach is proposed. First, the Minister should be kept informed of all disputes subject to voluntary conciliation and where negotiation fails, a formal dispute should be

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reported to the Minister. Second, with a view to further encouraging voluntary resolution of conflict, the Conciliation and Mediation Service of the Ministry of Labour, Industrial Relations and Employment should be established in law as a specialised and professional unit to give assistance to parties with a view of conciliation as a first level intervention in the dispute resolution process. Third, if conciliation or mediation fails at the Ministry, the dispute should be referred to the Commission for Conciliation and Mediation.

The Conciliation and Mediation Service of the Ministry will step in as a first level intervention in a less rigid manner for a quick resolution of disputes and to facilitate the settlement of disputes by the parties themselves. The intervention of Government in the dispute resolution process when negotiation reaches a deadlock after voluntary conciliation has been maintained. Mauritius is a small island economy and is vulnerable on the world market. We cannot afford an unhealthy industrial relations climate. It is Government’s role to ensure that social stability prevails and our economic interest safeguarded.

A separate conciliation and arbitration machinery should be maintained for the civil service.

(e) Right to strike

As regards the right to strike, the proposal of the trade unions to include the right in the Constitution has been examined. According to the ILO database, the Constitutions of France and Italy include a clause on the right to strike as follows:

France – “the right to strike shall be exercised in conformity with the legislation that governs that right”

Italy – “the right to strike shall be exercised within the limits set by the laws that govern it.”

In the light of this information, it is not considered necessary to introduce such a provision in the Constitution.

ILO Committee on Freedom of Association has accepted the following conditions on the right to strike –

(i) the obligation to give prior notice;

(ii) the obligation to have recourse to conciliation, mediation and arbitration procedures in industrial disputes as a prior condition to declaring a strike, provided that the proceedings are adequate, impartial and speedy and the parties concerned take part at every stage;

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(iii) the obligation to observe a certain quorum and to obtain the agreement of a specified majority;

(iv) the obligation to take strike decisions by secret ballot;

(v) the adoption of measures to comply with safety requirements and for the prevention of accidents;

(vi) the establishment of minimum service in particular cases;

(vii) the guarantee of the freedom to work for non-strikers.8

It further states that “strike action cannot be seen in isolation from industrial relations as a whole. It is true it is a basic right, but it is not an end in itself. Strikes are expensive and disruptive for workers, employers and society and when they occur, they are due to failure in the process of fixing working conditions through collective bargaining, which should remain the final objective.“ 9

Guided by these ILO directives, the right to strike is proposed in the new legislation as a last resort after all attempts at conciliation have been exhausted and all the procedures laid down in law have been followed. However, a party to a dispute will be given the option to elect for arbitration if the other party has negotiated in bad faith. The right to strike would be subject to a ballot, a minimum service and notice to the Minister.

Where a strike threatens to imperil the national economy, it is proposed that the Prime Minister applies for an injunction to the Supreme Court to stop the strike.

(f) Compulsory Arbitration

Compulsory arbitration has been retained in the following situations: essential services, in cases where the duration of a strike is such that a trade, industry or service is likely to be seriously affected and the scope of employment curtailed and where a strike gives rise to an emergency situation.

(g) Collective Bargaining

The provisions proposed for the operationalisation of collective bargaining and dispute resolution reinforce each other to pre-empt conflict and encourage peaceful and voluntary resolution of disputes.

Consultation and social dialogue are made a constant process at the workplace in this new employment relations pattern. The new legislation will be accompanied by practical guidelines to facilitate constructive workplace employment relations. These guidelines may

8 ILO Principles Concerning the Right to Strike, B. Gernigon, A Odero, H. Guido

9 Freedom of Association and Collective Bargaining, ILO

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include namely a Code of Conduct on Good Faith Collective Bargaining, a Code on employees’ participation and practical guidelines on grievance and disciplinary procedures, communication, consultation, gender equity, violence at the workplace, responsible enterprise restructuring etc.

5. MAIN FEATURES OF THE PROPOSED NEW LEGISLATION.

5.1 Protection of fundamental rights

Sections 49 and 50 of the IRA provide for the protection of individual rights of an employee to be or not to be a member of a trade union and protection of employees in unlawful action. With a view to ensuring full protection of workers and employers to organise in compliance with ILO Convention No. 87, it is recommended that:

(i) the new legislation provides explicitly for the protection of the right of employees to join a trade union, to participate in trade union activities, to form or join a federation or a confederation and the right of a trade union to affiliate to an international organisation;

(ii) provisions are introduced for employers to be or not to be a member of an employers’ organisation and the right of an employers’ organisation to affiliate to an international organisation;

(iii) provisions are also made for the protection of the right of persons seeking employment, for the protection against infringement of the right of association, against discrimination, against victimisation and against acts of interference.

5.1.1The Right of employees to join a trade union

It is recommended that:

i. every employee should have the right to establish or join a trade union of his own choosing, without distinction or discrimination of any kind as to occupation, age, marital status, sex, colour, race, creed, nationality, political opinion or affiliation;

ii. every employee should have the right to establish or join a trade union without previous authorisation;

iii. every employee should have the right to be or not to be a member of a trade union;

iv. every migrant employee holding a valid work permit should have the right to form or join a trade union;

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v. the Fire Services personnel and Prison staff should have the right to form or join a trade union; and

vi. the right to join or form a trade union should not apply to the personnel of the Police, Naval, Military and Air Forces.

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5.1.2The right to participate in trade union activities

It is recommended that every employee should have the right to: -

i. take part outside working hours or with the consent of the employer within working hours, in the lawful activities of a trade union of which the employee is a member; and

ii. seek and hold office in a trade union of which he is a member, subject to its rules.

5.1.3Protection of persons seeking employment


i. an employer should not require a person seeking employment, not to become a member of a trade union or to give up membership of a trade union;

ii. an employer should not cause prejudice to a person seeking employment because of his past, present or anticipated membership of a trade union, participation in forming a trade union, or a federation or a confederation, his failure or refusal to do something that an employer may not lawfully permit or require an employee to do, or any disclosure of information that he is lawfully entitled or required to give to another person;

iii. no employer should require a person seeking employment in exchange for that person not to exercise any right or to participate in any proceedings under the Act;

iv. no employer should enter into an agreement with a trade union which purports to preclude the employer from engaging a person who is not a member of a trade union, from engaging a person who should have not been recommended or approved by a trade union and requiring that a person must become a member of a trade union.

5.1.4Protection against infringement of the right to freedom of association


(i) any clause of a contract of employment or collective agreement that seeks to restrain an employee from exercising any right under the Act shall be void;

(ii) where an employer restrains an employee’s right under this Act, the employer shall commit an offence.

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5.1.5The right of employer to form an organisation

It is recommended that every employer should have the right to:

i. be or not to be a member of an employers’ organisation;

ii. establish or join an employers’ organisation;

iii. take part in the lawful activities of the organisation; and

iv. hold office in the organisation, according to its rules.

5.1.6Protection against acts of interference

It is recommended that :

i. no employer or employers’ organisation should interfere with the establishment, functioning or administration of a trade union, promote or give assistance to a trade union with the object of placing or maintaining a trade union under its control;

ii. no employer or employers’ organisation should interfere with the establishment, functioning or administration of another employers’ organisation;

iii. no trade union should interfere with the establishment, functioning or administration of an employers’ organisation; and

iv. no trade union should interfere with the establishment, functioning or administration of another trade union.

5.1.7 Protection in unlawful actions

It is recommended to maintain the provisions of Section 50 of the IRA to the effect that any person who refuses to participate in, or otherwise to act in furtherance of, any strike or lock-out which is unlawful, or refuses to take any other action which is unlawful should not be by reason of the refusal:

(i) expelled from a trade union or an employers’ organisation;

(ii) removed from office as an officer;

(iii) subject to any fine or penalty imposed by a trade union or an employers’ organisation;

(iv) deprived of any right or benefit to which he or his legal or personal representative would otherwise be entitled; or

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(v) subject to any disability or disadvantage, whether direct or indirect, as compared to other members of the trade union or employers’ organisation.

5.1.8Constitution of federation/confederation

It is recommended that the criteria to constitute a Federation or a Confederation be clearly defined as follows:

(i) two or more trade unions may associate to form a federation;

(ii) a trade union may join a federation;

(iii) two or more federations may associate to form a Confederation;

(iv) a federation may join a confederation;

It is also recommended that subject to its rules and the above definition, a trade union or a federation may join a federation or a confederation and two or more trade unions or federations may form a confederation.

5.1.9 Affiliation to international employees’ and employers’ organisations

It is recommended that any trade union or an employers’ organisation or any federation or any confederation shall have the right to:

(i) affiliate with and participate in the activities of international employees’ or international employers’ organisation,

(ii) make financial and other contribution to such organisations, and

(iii) receive financial and other assistance from them.

5.1.10 Protection against discrimination and victimisation

Section 49 (5) of the IRA provides for a fine not exceeding 2,000 rupees for infringement of individual rights. With a view to deter any act of discrimination or victimisation, it is recommended that:

i. where it is alleged that a person seeking employment was discriminated against or an employee dismissed, or otherwise prejudiced it should be for the employer to prove that the action taken was valid;

ii. an employer who fails to comply with the provisions of this section shall commit an offence and shall, on conviction be liable to a fine, which should be not less than Rs 10,000 and not more than Rs 75,000;

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iii. a worker who has been dismissed on the ground of trade union membership or trade union’s activities should be entitled to severance allowance at punitive rate; and

iv. representations made to the Ministry in connection therewith, should be referred to Court within one month.

5.2 Registration and formation of trade unions

5.2.1. Registration

Section 9 (1) of the IRA provides that the registration of a trade union is not only subject to a set of rules and prescribed conditions but also to prior objections from an existing registered union, the burden of proof resting on the trade union applying for registration. With a view to ensure compliance with ILO principles on the right to associate without authorisation and to facilitate the registration of trade unions, it is recommended that:

i. registration of a newly formed trade union should be granted as a matter of right once the conditions and formalities concerning its rules are satisfied;

ii. the Chief Registrar should by written notice within 15 days from date of receipt of an application for registration request for any additional information that may reasonably be required;

iii. the Chief Registrar should not later than 30 days after receipt of an application for registration-

(a)register the trade union; or

(b)notify the trade union of his intention to refuse the registration and the grounds thereof;

iv. after registering a trade union, the Chief Registrar should: -

(a) issue a certificate of registration and the certified copy of the registered rules to the trade union;

(b)publish in the Government Gazette and in at least two daily newspapers the registration of the trade union.

5.2.2 Powers of the Chief Registrar

(i) The Chief Registrar may at any time, if he thinks there is good reason to do so, give directions to a trade union, or branch or section of a trade union, requiring it to produce such relevant documents as may be specified in the directions.

(ii) The Chief Registrar may require:

(a) production of documents and make copies of them or extracts from them;

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(b) the person by whom they are produced, or any person who is or has been an official of the trade union, to provide an explanation of any of them.

(iii) Where the documents are not produced, the Chief Registrar may require the person who was required to produce them to state to the best of his knowledge and belief, from where they can be obtained.

(iv) The Chief Registrar may investigate and institute prosecution on receipt of a complaint from a union member or where he has reasonable grounds to believe that:

(a) the financial affairs of the trade union are being or have been conducted for a fraudulent or unlawful purpose;

(b) the persons concerned with the management of those financial affairs have, in connection with that management, been guilty of fraud, misfeasance or other misconduct;

(c) the trade union has failed to comply with any duty imposed on it by the Act in relation to its financial affairs; or

(d) a rule of the trade union relating to its financial affairs has not been complied with;

(v) The Chief Registrar may conduct an investigation where a member of a trade union claims that there has been a breach of rules or there is an apprehended breach of rules in respect of –

(a) the appointment or election of a person to, or the removal of a person from office;

(b) disciplinary proceedings by the union (including expulsion);

(c) balloting on any issue other than industrial action;

(d) the rules or proceedings of any executive committee or of any decision- making meeting;

(vi) He may where appropriate, require the union :

(a) to take such steps to remedy the declared failure, with such period as may be specified in the order;

(b) to abstain from such acts as may be specified with a view to securing that a failure of the same or a similar kind does not occur again.

(vii) Any person who fails to comply with any directions made by the Chief Registrar shall commit an offence and shall be liable to a fine.

5.2.3Cancellation of registration

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i. on application made by the executive committee of a trade union, the Chief Registrar should cancel the registration of the trade union;

ii. where a new trade union has been registered, any other registered trade union wishing to have that registration cancelled, should within 3 weeks from the date of publication in the Government Gazette, apply in writing to the Registrar stating the grounds for cancellation of registration. The burden of proof should lie with the trade union contesting the registration;

iii. the Chief Registrar should within 2 months after the receipt of the application for cancellation process the application and refer it to the Commission for Arbitration;

iv. the Commission for Arbitration may order the Chief Registrar to cancel the registration of an organisation, after hearing the parties concerned and making such enquiries as it deems necessary;

v. the order for cancellation should also provide for disposal of assets in accordance with the rules of the trade union; and

vi. the Chief Registrar should publish a notice of the cancellation in the Gazette and in at least 2 daily newspapers.

5.2.4 Appeal


i. any person aggrieved by the Chief Registrar’s decision shall have the right to appeal to the Master and Registrar of the Supreme Court, within 21 days of the decision of the Chief Registrar; and

ii. the Chief Registrar should stay his decision to cancel the registration of a trade union pending the determination of the appeal.

5.3 Constitution and Administration of Trade Unions

5.3.1. Membership

(a) Under Section 20 of the IRA, membership is open to a person who is engaged in a trade, which the trade union purports to represent.

(b) It is considered that membership criteria for the establishment of a trade union should reconcile the democratic right of a

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worker to form a trade union with the need to discourage splinter trade union, bearing in mind the relationship between membership and collective bargaining and that an increased union coverage and density are essential to collective bargaining. It is, therefore, recommended that:

(i) the minimum membership threshold of a trade union should be 30 members.

(ii) membership of a trade union be open to:

(a) any Mauritian citizen and to a migrant worker, holding a valid work permit;

(b) the Prison and the Fire services personnel;

(c) employees in the same undertaking;

(d) employees in undertakings related by the nature of their products or of their management;

(e) employees in the same trade or occupation.

(iii) the present distinction between civil service and non–civil service union should be maintained.

(iv) trade unions with less than 30 members at the time of coming of operation of the Act will be given a moratorium period of 24 months to adjust to the above provisions.

It is also recommended that the definition of trade union in the IRA be reviewed to exclude any federation of trade unions or confederation of federations.

5.3.2Status of the negotiator/adviser

In the IRA, the definition of “officer” does not include a negotiator. However, in view of the specific role of the negotiator in the negotiating process, with regard to his experience and independence, it is recommended that:

(a) the function and status of the negotiator/adviser be defined in the new legislation;

(b) the negotiator/adviser should be appointed or removed by a resolution approved at a general meeting of a trade union;

(c) the negotiator/adviser should be registered with the Chief Registrar within 15 days of his appointment;

(d) the negotiator/adviser who is not an employee of an enterprise shall have no right to be a member or an office bearer of a trade union.

5.3.3Rules of Trade Unions

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Under the IRA, the rules of a trade union are subjected to the prior approval of the Registrar of Associations. With a view to safeguarding the autonomy of the trade union and ensuring that trade unions are free to draw up their rules concerning participation in their activities without interference of the authorities, it is recommended that:

(i) the rules of trade unions should not be subject to prior approval and discretion of the Chief Registrar;

(ii) the new legislation should set guidelines for the rules of a trade union;

(iii) the guidelines should inter alia :

a. set criteria for admission to membership;

b. establish the circumstances in which a member should no longer be entitled to the benefits of membership;

c. provide for termination of membership;

d. provide for appeal against loss of membership, set procedures for appeal and determine the body to which the appeal may be made;

e. provide for membership fees and method for determining membership payment and other payments;

f. set rules for convening and conducting meetings, including the quorum required and the keeping of minutes thereof;

g. set procedures for amalgamation;

h. specify the manner in which decisions are taken;

i. define the function of Office bearers;

j. set procedures for appointing, nominating, electing or removing of Officers;

k. provide for appeal;

l. determine a date for the holding of annual general assembly;

m. establish circumstances and manner in which a ballot must be conducted;

n. provide for banking and investment of funds;

o. provide the manner in which funds shall be applied;

p. provide for acquiring and controlling and disposal of assets;

q. provide a procedure for amending its rules;

r. provide a procedure by which it may resolve to wind up.

(iv) Any trade union may, in accordance to its rules, amend its rules.

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(v) The Chief Registrar should ensure that the rules are in conformity with the guidelines.

5.3.4Amalgamation

It is recommended that, subject to its rules and to the approval by the general assembly, two or more trade unions may merge to form a new trade union

5.3.5Dissolution


i. a trade union may be dissolved where a decision in accordance with its rules is taken at a general assembly;

ii. where the Chief Registrar is of opinion that the rules of the trade union are not being properly complied with, he may apply to a District Court for an order to ensure proper disposal of assets or funds.

5.3.6Disposal of assets

Under the IRA, a trade unions’ property can be disposed of or mortgaged with the approval of a majority of all its members voting. For practical reasons and for effective administration of trade unions, it is recommended that:

i. disposal of movable assets belonging to a trade union should be left to the discretion of the executive committee, which shall inform its members accordingly in a general assembly;

ii. disposal of immovable assets belonging to a trade union should be disposed by a majority of members present and voting at the general assembly of the trade union.

5.3.7Accounts and returns

Under the IRA, the Registrar has wide powers of control and enquiry over the books and accounts of trade unions. To give more autonomy to trade unions’ members to administer their organisation, it is recommended that:

i. the excessive power of control of the Chief Registrar should be removed and that trade unions should be foremost answerable to their members;

ii. the accounts of the trade union should be audited by two auditors approved by the annual general assembly;

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iii. the audited accounts of the union should be submitted for the approval of members at the general assembly;

iv. on leaving office, the treasurer of a trade union should hand over to his successor or to the organisation any funds or property of the organisation in his possession or custody or under his control, failing which, any officer or member of the trade union or the Chief Registrar may apply to a District Court to recover such funds or property;

v. the Chief Registrar on receiving returns and balance sheet where he has reasonable ground to believe that the rules of the union in respect of application of funds are not being complied may investigate into a complaint;

vi. the Chief Registrar should verify union membership at regular intervals so as to ensure that the number has not fallen below the standard minimum;

vii. the Chief Registrar should have the right to refer a case of mismanagement to a District Court. where a prima facie case has been established;

viii. every trade union should by 1 June of each year, submit to the Chief Registrar the following information:-

(a) a statement certified by the Secretary that the information submitted tallies with its records, showing the number of members as at 31 December of the previous year and any other relevant information that may be required by the Chief Registrar;

(b) a certified copy of the auditors’ report and of the financial statement;

(c) the names and postal address of its officers, and of the negotiator/adviser.

5.3.8Political Fund

The IRA presently imposes restriction on the creation of political funds and the contribution of those willing to do so. It also specifies the expenditure which is considered as payments for political reasons.


(i) the provisions of the IRA on the restriction of use of union funds and assets for political objects be maintained.

(ii) payments in furtherance of political objects be explicitly spelt out to be made out of a separate fund.

(ii) for practical reasons Section 31(b) of IRA, which provides that where a federation has set up a political fund, approval should be obtained from a constituent union, following a ballot that should have obtained the consent of “a majority of all

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members”, should be amended by replacing “a majority of all members” by “a majority of all members voting”.

5.4 Collective Bargaining

There are no statutory procedures to facilitate the operationalisation of collective bargaining in the IRA. Guidelines are only set out in the Code of Practice.

It is therefore recommended that rules and procedures regarding negotiating rights, recognition, procedure agreement, bargaining unit and right to access to a workplace be set explicitly in law.

5.4.1Definition of collective bargaining

It is recommended that the definition of Collective Bargaining as spelled out in Article 2 of ILO Convention 154 be included in the new legislation. Collective bargaining is defined as:

“including all negotiations which take place between an employer, a group of employers or one or more employers’ organisation, on the one hand, and, one or more worker’s organisations on the other, for (a) determining working conditions and terms of employment; and/or (b) regulating relations between employers and workers; and/or (c) regulating relations between employers or their organisations and a workers’ organisation or workers’ organisations.”

5.4.2Representational status

The IRA provides that representational status can be obtained voluntarily or by application through the Industrial Court. The Court may decide not to grant representational status to a trade union having less than 100 members as a whole and less than 5 members in the employment of a specific employer.


(i) representational status should be an attribute of registration and any registered trade union should automatically acquire the right to a representational status on application to an employer;

(ii) a trade union acquiring a representational status should have the right to represent its members on matters pertaining to their legal rights only;

(iii) where a trade union has been refused representational status by an employer, the trade union may apply to the Commission

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for Arbitration for an order directing the employer to give representational status to the trade union;

(iv) an employer who fails to comply with an order shall commit an offence and shall be liable to a fine.

5.4.3Recognition

The IRA provides that claims for recognition are recommended by the IRC and that the PAT may enforce the IRC’s recommendation. No provision is made for clear criteria for recognition.

With a view to avoid unnecessary disputes, to build up trust, to streamline procedures and to develop collective bargaining, it is recommended that:

(a) The following procedures be followed for recognition at enterprise level

i. a trade union or a group of trade unions acting jointly may apply in writing to an employer or employers’ organisation for recognition as a bargaining agent;

ii. recognition can be by agreement between an employer or a group of employers and a trade union or a group of trade unions acting jointly;

iii. the criteria relating to the representativeness of trade unions be particularised as follows:-

(a) where there is no agreement, a trade union which obtains 30 % or more members of the votes in the bargaining unit shall be entitled to recognition;

(b) where there is more than one trade union, a ballot should be organised by the Commission for Arbitration and the trade union obtaining more than 50 % of the votes in the bargaining unit shall be granted exclusive negotiating rights;

(c) where no registered trade union obtains more than 50 % of the votes, a joint negotiating panel should be set up with those unions, which obtain more than 30 % of the votes in the bargaining unit;

iv. when a trade union or a group of trade unions acting jointly is recognised by an employer or an employers’ organisation, it shall have negotiating rights to bargain on behalf of its members;

(b) The following procedures be followed for recognition at industry or sectoral Level

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(i) a trade union or a group of trade unions acting jointly

may apply in writing to an employer or employers’ organisation for recognition as a bargaining agent in an industry or in a sector of employment;

(ii) recognition can be by agreement between an employer or a group of employers and a trade union or a group of trade unions acting jointly;

(iii) where there is no agreement:

(a) a trade union which obtains an average of 30 % or more members of the votes in the industry and at least 15 % in an enterprise constituting the bargaining unit in the industry or sector shall be entitled to recognition;

(b) where there is more than one trade union, a ballot should be organised by the Commission for Arbitration and the trade union obtaining more than 50 % of the votes in the bargaining unit shall be granted exclusive negotiating rights;

(c) where no registered trade union obtains more than 50 % of the votes, a joint negotiating panel should be set up with those unions, which obtain more than 30 % of the votes in the bargaining unit.

(iv) when a trade union or a group of trade unions acting jointly is recognised by an employer or an employers’ organisation, it shall have negotiating rights to bargain on behalf of its member.

5.4.4 Consideration of recognition


(i) where a trade union applies to an employer for recognition, it should include a certified copy of its rules, certificate of registration, agreement between or among them in the case of a group of trade unions acting jointly, a description of the proposed bargaining unit, indications of the number of its members in the bargaining unit and such evidence of membership or support in the unit as it may be able to provide without identifying the names of its members;

(ii) the employer shall, within 30 days of receiving the application give its stand to the trade union indicating whether it recognises the trade union or group of trade unions in the bargaining unit or whether it refuses to recognise the trade union or group of trade unions and state the reasons thereof;

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(iii) where an employer refuses to recognise a trade union (s), the trade union(s), may refer the matter to the Commission for Arbitration for an order; and

(iv) where another trade union or a group of trade unions objects to the recognition of the trade union or a bargaining unit, the trade union or the group of trade unions may apply to the Commission for Arbitration for determination.

5.4.5 Extension of recognition


(i) on application made by a trade union, the Commission for Arbitration may extend the scope for recognition after consultation with the parties concerned;

(ii) the Commission for Arbitration shall publish in the Government Gazette and two daily newspapers the application for recognition and applicant shall be required to state with sufficient particulars the composition of the bargaining unit in respect of which application for negotiating rights has been made; and

(iii) where the Commission for Arbitration proposes to extend the scope of recognition to other bargaining units, the same procedure should be followed.

5.4.6 Order for recognition


(i) where an application for recognition is made to the Commission for Arbitration, the Commission shall before granting recognition organise and supervise a ballot to determine the representativeness of the trade union. The Commission may enquire into the independence of the trade union vis a vis the employer, on its influence on management, among its members and in the world of work, enquire into the organisational capacity of the trade union in respect of its membership, manpower, effectiveness as a bargaining agent, past experience, capacity for coping with individual grievances, freedom of adhesion to membership;

(ii) the Commission for Arbitration shall within 30 days, from the date of application for recognition, make an order thereof;

(iii) when the Commission for Arbitration makes an order for recognition, it should specify the employer (s) and the trade union (s) to which it relates; specify the category/grade in respect of whom recognition is given, specify the level of the bargaining unit and specify the duration of the order, which

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shall not exceed a period of 3 years from the date of the order;

(iv) where the Commission for Arbitration makes an order, the trade union of employees or the joint negotiating panel concerned should be recognised as sole bargaining agent;

(v) when a trade union or a group of trade union has been recognised, the trade union or the group of trade unions shall replace any other trade union or group of trade unions as the bargaining agents of the employees concerned;

(vi) when a trade union has obtained recognition, whether by agreement or by order of the Commission for Arbitration, no other claim for recognition or derecognition in the same bargaining unit shall be entertained before three years after the date of such agreement or order;

(vii) Where an order of the Commission for Arbitration is not complied with, the trade union may apply to the Commission for Arbitration for compensation which shall not be more than Rs 500. per day as long as the order is not being complied with.

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5.4.7Derecognition


(i) all applications for derecognition of trade unions should be made to the Tribunal;

(ii) the Commission for Arbitration may revoke or vary an order of the recognition of a trade union, if it is satisfied that there has been a change in circumstances or there has been any default from the trade union that justifies its revocation;

(iii) where an application has been made for the derecognition of a trade union, the recognition of the union shall remain in force until the Commission for Arbitration decides otherwise;

(iv) all applications for derecognition shall be determined by the Commission for Arbitration within one month from the date of application.

5.4.8Establishment of bargaining Unit


(i) one or more recognised trade unions or employers’ organisations shall establish a bargaining unit for the purpose of collective bargaining;

(ii) a bargaining unit may be established at the level of the workplace or the industry or sector of activities and may be based on occupation characteristics or different occupations.

5.4.9Procedure agreement


(i) within 45 days after recognition is obtained or any longer period agreed between parties, it should be mandatory for the parties to draw and sign a procedure agreement to regulate their relations;

(ii) the procedure agreement should include inter alia:-

a. the name or status of employer and trade union in negotiation;

b. the drawing up of minutes of proceedings;

c. intervals of meetings;

d. time Off facilities to enable the union’s officials to enable them to carry out their functions and follow training to enhance their negotiating capacities;

e. information to be disclosed to the union by the employer to promote collective bargaining in good faith;

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f. any matter on which consultation shall take place before management’s decisions are taken;

g. facilities to amenities to hold meeting;

(iii) where 45 days or a period otherwise agreed by parties after recognition is obtained and where an employer or a trade union refuses to sign a procedure agreement, either party may apply to the Commission for Arbitration to have a default procedure agreement;

(iv) where the matter is referred to the Commission for Arbitration, the Commission for Arbitration shall first try to broker an agreement with the trade union. If no agreement is reached, the Commission for Arbitration shall be empowered to impose an agreement which shall be binding on all parties.

5.4.10 Duty to Bargain


(i) within 45 days of recognition or otherwise agreed by parties, an employer shall commence bargaining and to open negotiation with the recognised trade union;

(ii) where there exists a collective agreement, the parties to the agreement shall start negotiation not more than 3 months and not less than 1 month preceding the date of expiry of a collective agreement, with a view to the renewing or revising a new collective agreement.

5.4.11 Negotiation in good faith


(i) the concept of good faith should be introduced in the law to require trade unions and employers to bargain in good faith;

(ii) the obligation to bargain in good faith should require that the union and the employer to:

(a) negotiate in a reasonable, fair and honest manner;

(b) meet and use their best endeavours to find mutually acceptable solutions and enter into an agreement, as soon as possible;

(c) consider and respond to proposals made by a party to the other party;

(d) recognise the role and the authority of any person chosen by each to be its representative or advocate;

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(e) do not initiate or do any thing that is likely to undermine the bargaining or the authority of the other party;

(f) provide information to the other party, on request and in accordance with this Act that is reasonably necessary to support or substantiate claims or responses to claims made for the purposes of the bargaining;

(g) refrain from directly or indirectly bargain about matters relating to terms and conditions of employment with any other persons, unless the trade union and employer agree otherwise;

(h) embody any agreement in writing

(iii) negotiation should be deemed to be in bad faith where a trade union or an employer:-.

(a) rejects a claim without any valid reason;

(b) uses delaying tactics;

(c) rejects a claim without explanation and without entering into serious discussions;

(d) adopts a take - it or leave- it attitude;

(e) threatens and uses intimidating language with a view to endangering the smooth industrial relations at the workplace.

5.4.12 Unfair labour practice in collective bargaining


(i) where a trade union is a bargaining agent for a unit, an employer or employers’ organization, and every person acting for or on behalf of an employer or an employers’ organization, should not bargain with another trade union in respect of that bargaining unit, with a view to entering a collective agreement;

(ii) where trade union has applied for negotiation or has started negotiation in a bargaining unit, an employer should not have the right to negotiate a collective agreement with individual workers in that unit;

(iii) where a union is the bargaining agent for a unit, no other union, or person acting for or on behalf of another union, should have the right to bargain with an employers’ organization with a view to entering into a collective agreement;

(iv) any agreement entered into as a result of (i), (ii) and (iii) shall be void.

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5.4.13 Right of access to the workplace

In the light of the case, Retreaders Ltd v/s Marie (SCJ No. 376 1989) which defined the relationship between the right to private property and the right of freedom of association, a workers’ representative who is not an employee of an enterprise is debarred the right of access to the enterprise. This implies that a trade union negotiator, who is generally a person external to the enterprise may be deprived the right of access to carry out his trade union activities including collective bargaining. In our context, the negotiator has become an important element of the negotiating mechanisms and with a view to facilitating the bargaining process, it is recommended that:

(i) subject to prior notice as to time and place as necessary and reasonably practicable to safeguard life or property or to prevent undue disruption of work:

(a)any office-bearer or official of a recognised trade union or a trade union with representational status shall be entitled to enter the employers’ premises in order to communicate with its members, to carry out negotiation on behalf of its members or otherwise serve its members’ interests;

(b)a representative of a trade union shall be entitled to hold meetings with employees outside their working hours at the employers’ premises; and

(c) the members of the union shall be entitled to vote at the employers’ premises in any election or ballot contemplated in that trade union’s rules.

(ii) a trade union should also have the right to apply to the Commission for Arbitration for an order where it considers that it has been unreasonably refused or restricted access by an employer.

5.4.14 Disclosure of information


(i) where an employer is bargaining with a trade union, the employer should disclose to the trade union representative relevant information to allow the trade union to engage effectively in consultation or collective bargaining;

(ii) a request by a union or an employer should:

a. be in writing;

b. specify the nature of the information requested in sufficient details to enable the information to be identified;

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c. specify the claim or the response to a claim in respect of which information to support or substantiate the claim or the response is requested;

d. specify a reasonable time within which the information is to be provided.

(iii) an employer should notify the trade union in writing if any information is confidential;

(iv) an employer should not be required to disclose information -

(a)that is privileged;

(b) that relates to confidential information as trade secrets, patents and or commercial interests;

(c) that he cannot release without contravening a prohibition imposed on the employer by any law or order of any court;

(d) that is confidential and if released, may cause substantial harm to an employee or the employer;

(e) that is personal information relating to an employee, unless the employee consents to the disclosure of that information.

(v) where an employer fails to comply with this section, he shall be deemed to have acted in bad faith;

(vi) where a trade union fails to comply with the provisions of this section, it shall be deemed to have acted in bad faith and the employer may refer a claim to the Commission for Arbitration to derecognise the trade union.

5.4.14 Time Off


(i) an employee who is an official of a trade union and/or federation or a confederation should be granted reasonable time off without loss of pay for the purpose of performing his trade union functions and legal activities, subject to the exigencies of the service and in a manner so as not to impair the efficient operation of the workplace;

(ii) the recognised trade union and the employer shall agree in the procedure agreement on the number of days of paid time off and the conditions attached thereto;

(iii) the agreement shall remain in force for a period of 3 years;

(iv) prior notice should be given by the trade union before time off is taken.

5.4.15 Deduction of check off

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The IRA provides that an employer may enter into a check off agreement with a trade union conditional on the number of membership which should not be less than 200 persons and the employer should employ no less than 10 members of the union. It is recommended that:

(i) there should be no minimum requirement for deduction of check off;

(ii) where a trade union is recognised or has a representational status, an employer, shall on a written request of the employee, deduct the trade union dues from the employee’s pay and credit within 14 days such amount to the trade union’s account;

(iii) the period of notice for discontinuance of deductions from an employee’s pay shall remain 6 months;

(iv) where an employer refuses to enter into a check off agreement, the trade union may make an application to the Commission for Arbitration for an order directing the employer to effect check off;

(v) where an employer fails to credit check off to a trade union’s account, the employer shall commit an offence.

5.5 Collective agreement

5.5.1Terms of collective agreement


(i) A collective agreement shall-

(a) be in writing and signed by the parties to the agreement;

(b) specify the bargaining unit to which it applies;

(c) specify the date on which it becomes effective;

(d) contain a clause dealing with the rights and obligations of the employees and of the employer if the work were to be contracted out or the business or part of the business of the employer were to be transferred or sold;

(e) contain a clause on variation of agreement;

(f) contain a clause for renewal of agreement;

(g) provide for such other matters as may be agreed upon between the parties;

(h) specify the date on which the agreement expires or an event of unpredictable nature on the occurrence of which the agreement is to expire.

5.5.2Legal effect of collective agreement

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(i) a collective agreement should be binding upon:

(a) the parties to the agreement;

(b) all employees in the bargaining unit;

(c) the employees who are to become members of a trade union which is a party to the agreement to the extent that the agreement relates to them;

(ii) a collective agreement should be binding for a period of not less than 3 years;

(iii) the terms of the collective agreement should be incorporated into the contract of employment of employees covered by the agreement and should become implied terms of the contract of employment of these employees.

5.5.3Relationship between collective agreements and law

With a view to protecting workers fundamental rights and promoting concession bargaining, which is an integral aspect of collective bargaining, it is recommended that:

(i) a collective agreement should not contain provisions less favourable for employees than legislative provisions unless and to the extent that the legislation so provides;

(ii) a collective agreement may contain provisions on conditions of employment which are less favourable than those of a (Remuneration Order) Regulations to the extent that a trade union and an employer so agree and the agreement is as a whole more favourable than the general conditions provided in the (Remuneration Order) Regulations, the duration of such an agreement should be agreed between both parties;

(iii) a collective agreement should not contain provisions, which are less favourable than minimum wages prescribed in a (Remuneration Order) Regulations, except if it is for reasons pertaining to the protection of employment and subject to the approval of the Commission for Conciliation and Mediation following joint application by the employer and the trade union, the period under consideration shall not exceed 3 months.

5.5.4Alteration or variation of collective agreement


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(i) a collective agreement may be varied or altered voluntarily by both parties when there is a change in circumstances;

(ii) where there is disagreement, the matter should be referred to the Commission for Arbitration for determination.

5.5.5Extension of collective agreement


(i) the parties to an agreement may jointly apply to the Commission for Arbitration to make the agreement or certain of its provisions binding to any non-party to the collective agreement provided that:

(a)the employers and employees to which the agreement is to be extended are engaged in an activity of the same kind as that carried out by those covered by the agreement;

(b)the parties to the agreement are sufficiently representative of employers and employees in the activity concerned.

(ii) where the Commission for Arbitration determines that the conditions specified in (i) (a) & (b) are met and that the terms of the collective agreement are not significantly prejudicial to the viability of the enterprise (s) concerned it shall –

(a) within 60 days of the receiving the application extend the collective agreement to the non- party sector and make an order accordingly;

(b) specify the date on which the agreement shall take effect.

5.5.6Registration of collective agreement


(i) a collective agreement shall be registered with the Commission for Arbitration;

(ii) where a collective agreement submitted for registration fails to include any of the matters required under section “Terms of collective agreements”, the Commission for Arbitration, shall provide the parties with information and advice, as it deems appropriate.

5.5.7 Interpretation and Enforcement of collective agreement

It is recommended that any dispute regarding the interpretation of a collective agreement may be brought by any party to the agreement to the Commission for Arbitration and the decision of the Commission for Arbitration shall be binding.

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5.6 Labour disputes. 5.6.1Definition

Under the IRA, an “industrial dispute” may be an individual dispute between an employee and his employer, or a collective dispute between a group of employees, a trade union and an employer or a group of employers. Such disputes may be related to either issues of rights or issues of interests.


(i) there should be a clear demarcation between disputes of rights and disputes of interests. Dispute of rights should be determined by the Industrial Court and disputes of interest should be disposed of through voluntary or compulsory procedures set out in the Act;

(ii) a labour dispute be defined as a dispute between an employee, a group of employees or a trade union of employees and an employer or an organisation of employer, which relates wholly or mainly to a dispute of interests and which includes such issues as:

(a) promotion, wages increase, improvement of conditions of employment;

(b) issues arising in the course of collective bargaining between an employee or a group of employees or a trade union of employees and an employer or an employers’ organisation which relates wholly or mainly to -

- a change of the existing terms and conditions of employment;

- the interpretation of collective agreement;

- any other matter that may be subject to collective bargaining;

- a procedure agreement;

(iii) a special provision is made to address a dispute relating to the engagement or non-engagement, reinstatement or suspension of an employee;

(iv) a labour dispute shall not apply to an employee of the public service who opts for the recommendation made in any report on remuneration or allowance.

5.6.2Notification and Reporting of dispute


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(i) the reporting of a dispute to the Minister be maintained to enable the Minister to intervene promptly in the dispute resolution process with a view to pre-empt conflict;

(ii) parties opting for voluntary means of dispute resolution notify the Minister of the dispute;

(iii) any labour dispute, whether existing or apprehended in the private or public sector be notified or reported by any party to the dispute to the responsible Minister in writing and specify-

(a) the parties to the dispute;

(b) the issues or matters giving rise to the dispute;

(c) brief indications regarding any prior negotiation on those issues, length of negotiation and reasons of deadlock.

(d) whether the parties elect for voluntary conciliation or arbitration; or

(e) whether the intervention of the Minister is required.

(iv) An employee or a group of employees or a recognised trade union acting on behalf of an employee or a group of employees may notify or report a dispute to the Minister.

5.6.3Dispute Settlement

The IRA provides the following possibilities for the settlement of labour dispute:

(a) both parties to a dispute may agree to refer it jointly for voluntary conciliation or arbitration by any person or body;

(b) otherwise, any party to an industrial dispute may report the dispute to the Minister who may take any of the following measures:

(i) make proposals for a settlement;

(ii) recommend further use of existing machinery for a voluntary settlement of the dispute;

(iii) request the IRC to investigate the dispute or conciliate the parties;

(iv) advise the parties to go for voluntary arbitration;

(v) refer the dispute to the PAT for compulsory arbitration.

The following procedures are therefore recommended:

5.6.3.1 Voluntary Dispute Settlement Procedure

(i) Where the parties elect for voluntary dispute settlement, they should notify the Minister;

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(ii) Where an agreement is reached following voluntary conciliation, the agreement shall be binding;

(iii) Where the parties opt for arbitration, the award of the arbitrator or the Commission for Arbitration shall be binding;

(iv) The Commission for Arbitration shall deliver its award not later than 3 months after the date of receipt of application;

(v)Where voluntary conciliation or mediation fails, the parties can either opt for voluntary arbitration or report a dispute to the Minister.

5.6.3.2 Consideration by the Minister

(ii) Where a dispute is reported to the Minister, the Minister shall either:

(a) recommend the parties to make further conciliation/mediation if negotiation has not been conducted in good faith;

(b) provide a conciliation and a mediation service with a view to making proposals for a prompt and amicable settlement of dispute;

(c) cause the Commission for Conciliation and Mediation to investigate into the dispute;

(d) refer the dispute to the Commission for Conciliation and Mediation or with the consent of both parties for Arbitration.

5.6.3.3 Conciliation and Mediation at the Ministry

(i) Where the Ministry provides a conciliation service, the conciliation proceedings shall be completed within 21 days of the report of the dispute, unless the parties agree for a longer period.

(ii) Where the dispute has been resolved by an agreement in the course of conciliation, the agreement shall :-

(a)be recorded in writing;

(b)be signed by the parties and the Ministry,

(c) be registered with the Commission;

(d)have the effect of a collective agreement

(iii) Where the Ministry provides a mediation service:-

(a) the Ministry shall issue its recommendations for the resolution of the dispute within 14 days;

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(b) The parties shall notify the Ministry of their acceptance or rejection of the recommendations within 7 days or any such longer period that the parties have agreed to.

(iv) Where the parties accept the recommendations of the mediator, their agreement shall be in writing and shall have he same effect of a collective agreement.

(v)Where a dispute is unresolved, the Conciliation and Mediation Service shall inform the Minister within 7 days and the Minister shall refer the dispute to the Commission for Conciliation and Mediation for further conciliation or mediation.

5.6.3.4 Conciliation and Mediation at the Commission

(i) Where a dispute has been referred to the Commission, the Commission may with a view to promoting a settlement–

(a) make such investigation as it deems it necessary;

(b) make proposals to the parties to settle the dispute;

(c) conciliate/mediate the parties to the dispute;

(d) advise the parties to refer the dispute to Commission for Arbitration;

(ii) Where an agreement has been reached following conciliation/mediation, the agreement shall :-

(a)be recorded in writing;

(b)be signed by the parties and the Commission,

(c) be registered with the Commission;

(d)have the effect of a collective agreement

5.6.3.5 Compulsory Arbitration

(i) Following the proceedings of the Commission for Conciliation and Mediation, a trade union or an employer may elect to refer a dispute to the Commission for Arbitration for compulsory arbitration where the other party has been negotiating in bad faith.

(ii) Where the Minister refers a dispute to the Commission for Arbitration for compulsory arbitration and where the duration of a strike is such that a trade, industry or service is likely to be seriously affected and the scope of employment curtailed.

(iii) Where a dispute is referred to the Commission for Arbitration after an order of the Supreme Court that a strike is threatening to imperil the national economy, the Commission

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for Arbitration shall deliver its award not later than one month from the date of the receipt of the dispute.

(iv) Where a dispute is referred to the Commission for Arbitration for compulsory arbitration, the Commission for Arbitration shall proceed to hear the case de die in diem and shall make an award within 3 months.

(v) The award shall be binding for 3 years.

5. 6.3.6 Disputes in essential services

(i) a fast track be established where a dispute in respect of the fire services and prison staff or in an essential service is not resolved after completion of the voluntary dispute procedures;

(ii) the Minister shall refer the dispute to the Commission for Arbitration; and

(iii) the Commission for Arbitration shall proceed to hear the case de die in diem and shall make an award not later than one month after date of reference.

5.6.3.7 Limitation on report of dispute

Where a dispute is reported to the Minister, no party to the dispute may report-

(i) any other dispute between the same parties within a period of 6 months immediately following the date on which the original report was made;

(ii) a dispute on the same issue between the same parties following the date of the determination of the dispute within a period of 24 months immediately following the date of termination of the dispute.

5.6.3.8 Rejection of dispute

The Minister may reject a dispute where it appears that:

(i) the report relates in whole or in part to a dispute which is not a labour dispute;

(ii) the report is made by or on behalf of a party who is not entitled to be a party to a dispute;

(iii) the dispute does not contain sufficient particulars of the issues or matters giving rise to the dispute;

(iv) the party reporting the dispute has failed to comply with the dispute procedures which have been prescribed by the Act or any procedure agreement existing within the enterprise;

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(v) the dispute relates to a collective agreement which has not expired, except where there has not been a change in circumstances.

5.6.4Appeal to the Commission for Arbitration

Where a dispute has been rejected by the Minister, the aggrieved party may appeal to the Commission for Arbitration.

5.7 Strike

Under the IRA, a strike becomes unlawful unless a dispute has been reported to the Minister and within 21 days there has been no settlement nor a referral either to the IRC or the PAT and the strike starts within 56 days from the date of the receipt of the report by the Minister.

In the new legislation, strike is considered as a fundamental right. It is recommended that it is used as a last resort after all conciliation or mediation avenues have been exhausted.

5.7.1Lawful strike

A strike shall be lawful where:

(i) it relates to a labour dispute arising out of a collective bargaining;

(ii) the dispute has been reported to the Minister;

(iii) the dispute is unresolved after completion of the conciliation and mediation proceedings by the Commission for Conciliation and Mediation;

(iv) notice of the strike has been given to the Minister;

(v) there is bad faith by the employer during negotiation and the trade union has not opted to refer the dispute to the Commission for Arbitration for compulsory arbitration;

(vi) the dispute is not in an essential service;

(vii) the strike starts not later than 10 days after the expiry of the 20 days’ notice given to the Minister;

(viii) the employees have the support of the required majority ascertained by a secret ballot;

(ix) the strike relates to a major health and safety issue that may jeopardise the life and security of employee(s) and the Minister has been duly notified and no corrective measures have been taken within reasonable delay.

5.7.2Unlawful strike

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A strike shall be unlawful if:-

(i) the conditions and procedures set forth in the Act have not been followed;

(ii) the strike occurs while a collective agreement or an award is in force;

(iii)there is bad faith by the union and the employer;

(iv) the dispute is one that the Minister has the right to refer to arbitration;

(v) the dispute is a dispute of rights;

(vi) the dispute relates to a personal grievance;

5.7.3Notice to the Minister


(i) where conciliation/mediation has failed at the level of the Commission for Conciliation and Mediation, a trade union who intends to strike shall give 20 days’ notice to the Minister before strike action is initiated;

(ii) where notice is given to the Minister, he may intervene with a view to promoting a settlement.

5.7.4Notice to employer

It is recommended that where a group of employees intend to strike, the employees or their trade union representatives shall notify the employer at least 20 days before the strike starts.

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5.7.5Strike Ballot


(i) where conciliation/mediation has failed at the level of the Commission for Conciliation and Mediation, any trade union or group of employees contemplating any action by way of strike shall take a secret ballot;

(ii) any trade union or group of employees contemplating action by way of strike shall apply to the Commission for Conciliation and Mediation to organise and supervise the strike ballot;

(iii) the Commission for Conciliation and Mediation shall ensure that the ballot takes place within 7 days from the date of application;

(iv) the Commission shall communicate the results of the ballot on the same day of the ballot;

(v)A ballot shall be successful when it obtains a simple majority of the votes of employees of the enterprise or bargaining unit with respect of which a strike is contemplated;

(vi) The results of the ballot shall be certified by the Commission for Conciliation and Mediation, and all records thereof shall be filed with the Commission.

5.7.6Essential Services


(i) no employee engaged in the Prison and Fire Services staff and in an essential service shall take action by way of strike;

(ii) where a labour dispute in an essential service is unresolved after completion of the conciliation/mediation procedures set out in the Act, the Minister shall refer the dispute to the Commission for Arbitration;

(iii) the Commission for Arbitration shall proceed to hear the case de die in diem and make an award not later than one month after its reference.

5.7.7Minimum service


(i) in services which are not essential, a strike may be subject to a minimum service:

(a) where the parties agree;

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(b) where the interruption of the service is likely to cause serious prejudice to the public and the Minister so determines.

(ii) where the right to strike is subject to a minimum service:

(a) the parties shall seek to agree on the number and occupation which are required and the persons who will be required to remain at work for that purpose;

(b) where the parties fail to agree, either party may apply to the Commission for Arbitration for determination.

5.7.8Emergency adjustment

At present the Prime Minister can declare unlawful for a period of 60 days a strike or lock out which is not unlawful, if he considers that the continuance of the strike will imperil the national economy.

It is recommended that: (i) where the duration of a strike is such that a trade, industry or

service is likely to be seriously affected and the scope of employment curtailed, the Minister may refer the dispute to the Commission for Arbitration for compulsory arbitration;

(ii) where a strike which is lawful has commenced and the Prime Minister is of opinion that the continuance of the strike may result in a real danger to the life, health or personal safety of the whole or part of the population, he may apply to the Supreme Court for an injunction prohibiting the continuation of the strike.

5.7.9 Lawful effect of strike on contract of employment

It is recommended that :

(i) any person shall not commit a breach of contract of employment by taking part in a lawful strike;

(ii) an employee shall not be entitled to any remuneration while he is on strike.

5.7.10 Picketing


An employee or a group of employees or a trade union official may, in furtherance of a lawful strike, be present at or near a place of work for the purpose of peacefully communicating information or for peacefully persuading of any person to participate in the strike.

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5.7.11. Civil and criminal immunity

It is recommended that: (i) any act done by a person or organisation in contemplation or

furtherance of a labour dispute in conformity with this Act shall not render such person or organisation liable to any civil or criminal proceedings on the ground only that the act may prevent or has prevented another person or organisation from performing a contract or is an interference with the trade or employment of any person or with the right of another person to dispose of his capital or labour as he so wishes;

(ii) participation in a strike shall not entail imprisonment.

5.8 Labour Institutions

5.8.1Ministry of Labour and Industrial Relations

It is recommended that the Conciliation and Mediation Service of the Ministry become a specialised and professional unit and be established as a formal structure in law. The Conciliation and Mediation service of the Ministry should:-

(a) provide a conciliation and mediation service to resolve dispute referred by the Minister;

(b) offer an advisory service to employees, employers and trade unions;

(c) provide assistance for the establishment of works council.

5.9 Establishment of a Commission for Conciliation, Mediation and Arbitration.

(i) It is proposed to establish an independent Commission for Conciliation, Mediation and Arbitration. The Commission shall comprise of a Commissioner responsible for conciliation and mediation and a Commissioner responsible for arbitration.

(ii) The Commission for Conciliation and Mediation shall consist of a Commissioner and a maximum of 8 assessors.

(iii) The Commissioner shall be appointed by the Minister after consultation with the employers’ and employees’ organizations and shall hold office for a period of two years.

(iv) The assessors shall be appointed by the Minister for a period of one year after consultation with the employers’ and employees’ organizations and shall have proven experience in Industrial Relations and Human Resource

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Management and a good knowledge of business and economic issues.

(v)The Commission for Arbitration shall consist of a Commissioner and not more than 6 assessors.

(vi) The Commissioner for Arbitration shall be a person who is qualified for appointment as a judge.

(vii) The assessors shall be appointed by the Minister for a period of one year after consultation with the employers’ and employees’ organizations and shall have proven experience in Industrial Relations and Human Resource Management and a good knowledge of business and economic issues.

5.10 Functions of the Commission of Conciliation and Mediation:

The functions of the Commission would be as follows –

(a) resolve through conciliation or mediation any dispute referred under this Act;

(b) investigate into a labour dispute upon reference by the Minister;

(c) organize strike ballot;

(d) publish guidelines with a view to promoting IR best practice;

(e) provide employees, employers and employees’ and employers’ organisations with advice regarding any matter pertaining to IR;

(f) conduct and publish research into matters relevant to its functions;

(g) compile and publish information and statistics about its activities; and

(h) provide employees, employers, trade unions and employers’ organization with advice and training relating to the main objects of the Act, including establishing collective bargaining structures, functioning of Joint Consultative Committee, preventing and resolving disputes and employees’ grievances, disciplinary procedures, the procedures in relation to dismissals, the process of restructuring of workplace, and sexual harassment at the workplace.

5.11 Proceedings of the Commission of Conciliation and Mediation.

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(i) Conciliation proceedings may only be attended by the parties to a dispute, a co-employee, or by a member, an office bearer or official of a trade union in the case of an employee; a representative of the management or of the employers’ organisation in the case of an employer, and such other persons who, in the discretion of the Commission are allowed to attend.

(ii) At the end of the 21- day period or any further period agreed by the parties, the Commission shall issue a certificate to the Minister stating whether or not the dispute has been resolved and where the dispute has not been resolved, the Commission shall state the reasons thereof and whether any party to the dispute has not acted reasonably and in good faith. The Commission shall deliver a copy of the certificate to the parties.

5.12 Functions of the Commission for Arbitration

The functions of the Commission for Arbitration would be as follows –

(a)make award

(b)decide on variation of awards as specified in this Act;

(c) extend an award upon applications being made;

(d)interpret orders, awards and collective agreements;

(e)make orders in relation to recognition, check off agreement, minimum service and any other issues falling under this Act; and

(f) publish an annual record providing summaries of cases and rulings, within three months after the end of each year.

5.13 Proceedings of the Commission for Arbitration

(a)The Commissioner may conduct the arbitration in a manner that he considers appropriate in order to determine the dispute fairly, but shall deal with the substantial merits of the dispute with minimum formalities.

(b)Before any case is heard, there should be a requirement on the parties to provide evidence in writing to enable the Tribunal to come to a decision without undue delay.

(c) In any arbitration proceedings, a party to the dispute may appear in person or be represented by a legal practitioner, negotiator/adviser a co- employee, or by a member of the trade union or employers’ organization.

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(d)If the party fails to appear in person or to be represented at the arbitration proceedings

i. the Commissioner may strike out the matter;

ii. continue the arbitration proceedings in the absence of the party; and

iii. adjourn the arbitration proceedings.

(e) The Commissioner shall deliver an award with brief reasons within the time frame set in the Act.

5.14 Power of Commissioner

(i) A Commissioner who has been appointed to conciliate, mediate or arbitrate a dispute may:

(a) summon for questioning any person who may be liable to give information or whose presence at the conciliation or arbitration proceedings may help to resolve the dispute;

(b) summon any person who is believed to have possession or control of any book, document or object relevant to the resolution of the dispute to appear before the commissioner;

(c) call and, if necessary summon any expert witness to appear before the commission to give evidence relevant to the resolution of the dispute; and

(d) enter and inspect any premises on or in which any book, document or object relevant to the resolution of the dispute is to be found.

(ii) A person shall commit a contempt of the Commission where he:

(a) fails to comply with a summons served upon him, without good and sufficient cause.

(b) refuses to answer any question fully and to the best his knowledge

(c) insults, disparages or belittles a Commissioner or prejudices or improperly influences the proceedings or improperly anticipates the Commissioner’s award.

(d) willfully interrupts the conciliation or arbitration proceedings or misbehaves in any other manner.

(ii) Any such person shall be deemed to have acted in bad faith and the Commissioner for Arbitration may take any sanctions deemed appropriate.

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5.15 National Remuneration Board


(i) Where the Minister is of opinion that collective bargaining arrangements in a sector of industrial activity, whether on the level of the sector or among the enterprises and workplaces constituting the sector, are insufficient to adequately protect persons employed within the sector, he may request the Board to recommend minimum remuneration and specific conditions of employment for the sector.

(ii) The board shall not prescribe general terms and conditions of employment in a Remuneration Order. The general terms and conditions of employment of all employment sectors shall be governed by the Labour Act (Employment Rights Act) and the Remuneration Order shall only provide for minimum remuneration and specific conditions of employment not provided in the Labour Act.

(iii) A joint consultative body or negotiating body composed of representatives of a substantial number of employees and employers may request the Minister to refer any matter concerning minimum remuneration in that sector to the Board.

(iii) A chairperson shall be appointed by the responsible Minister.

(iv) A maximum of 8 independent assessors with proven experience in Industrial Relations, wage determination and labour economics, after consultation with the representatives of trade unions and employers’ organisation.

(v) The term of office of the Chairperson shall be appointed for a period of not less than 3 years.

5.16 Elaboration of Codes of Practice

Consultation and social dialogue is a constant process at the workplace in this new employment relations pattern. It is proposed to develop the following codes of practice or guidelines with a view to facilitate a more constructive employment relationship at the workplace –

Code on Good Faith Collective Bargaining Code on Employees’ Participation in Decision Making Code on Grievance and Disciplinary Procedures Guidelines on Communication and Consultation Guidelines on Gender Equity Handbook on Socially Sensitive Enterprise Restructuring

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5.17 Capacity Building

In this new employment relations pattern, more responsibilities are devolved on the Ministry, trade unions and employers’ organisation.

It is therefore proposed that:

(a) capacity of the trade unions be reinforced so as to improve their negotiating skills and enhance their understanding of key labour market issues for a more professional and objective intervention;

(b) the employers be encouraged to improve human resource management practices and professional skills in conflict resolution and develop corporate social responsibility strategies.

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5.18 Sensitisation of Workers

A comprehensive training and workers education programme should also be elaborated to enable workers to understand the changing pattern of work and to be on the same level playing field as employers and unions officials to enable them to participate actively and constructively in discussions and negotiations at the workplace. Particular attention should be given to developing negotiation skills among female workers.

CONCLUSION

This White Paper has proposed a new approach to industrial relations based on strong partnership and social dialogue. It has tried to embody the views of the social partners, bearing in mind the need to safeguard the general interests of the community and the country, at large.

Government has the strong political will to introduce a new industrial relations framework. Social partners have demonstrated a positive and open-minded approach. We should not miss this unique and historical opportunity to move a step forward in promoting dialogue in the interest of economic development and social justice.

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Documents

Industrial Relations in Mauritius