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January 2004 For Industrial Democracy Proposal for a by
Mauritius Trade Union
Congress (MTUC) State Employees Federation
(SEF)
Following the
announcement by the government of its intention to bring in a new legislation
to replace the present Industrial Relations Act, all the trade union
federations of the country have constituted a common Platform to submit
a paper to the government.
The present
document represents the views, stands and concerns of the trade union
movement on the present government initiative, as well as our proposals for a
new legal framework to establish real democracy in industrial relations. The Industrial Relation Act The present legislation shaping
industrial relations in the country, the Industrial Relations Act -
I.R.A, is perhaps the most abhorred
piece of legislation existing in this country. The trade union movement and
other progressive organisations have, since 1973, the time of enactment of
the IRA, consistently campaigned for its replacement by a democratic
industrial legislation. Enacted during
the period of the state of emergency and state repression against the trade
union movement, specially the 1970 and 1971 repressive period, the IRA
represents the codification of this repression into legislation. It also reflects the ambivalent balance of class
forces arising out of class struggle at the time: state repression to protect
the capitalist class on the one hand, v/s rising class consciousness against
employers' exploitation, on the other hand.
The state
conferred itself the power to politically intervene in the day to day running
of industrial relations in favour of the employer. This is why, for example,
the state legislated to render the quasi-totality of industrial actions and
specially strikes illegal, to imprison workers, to grant power to the
employers to sack workers, to impose compulsory arbitration, to intervene in
the internal administration of trade unions, to act in a discriminatory
fashion towards different section of the trade unions movement, to
bureaucratise industrial relations and trade unions and to bring in
structural weaknesses in the position of unions when faced with
employers. This has been the essence
of the IRA. But because of
the rising class consciousness and the strength of the trade union movement
at that time, the state could not just
repress workers, as this would have provoked a more violent social
explosion and upheaval situation. The then regime had to introduce some state
control and quasi-judiciary mechanism to ensure basic minimal work conditions
in different work sectors, as a counter weight to this repression. This took
the form of Remuneration Orders, Awards and PRB Reports for the public and
para-statal sectors. Today
employers and proponents of neo-liberalism want to abolish these minimal
mandatory wages and work conditions and its accompanying mechanism, while
maintaining most of the repressive "interventionism" of the state
in favour of the employers. Will the
present government bend to this abject pressure? Victimisation under the IRA During the
past 30 years of its existence, the IRA has caused a lot of victimization
among workers. The first type
of victimisation has been ‘criminal victimisation’, where workers and trade
unionists have been imprisoned merely for having participated in an
industrial action while struggling for better work conditions. The most
famous example is that of a 53 year woman worker, named Olga Olande,
imprisoned in 1975 along with other 5 sugar industry workers, and that of
trade unionist Rajpalsing Algoo handcuffed in a hospital bed in 1988, during
the Sinotex workers strike in the EPZ. The second
type of victimisation has been ‘economic victimisation’, where employers used
and abused the IRA to massively sack workers after an industrial action. Some
of the notorious examples of this were: the massive sacking in the transport
industry and sugar industry after the 1979 general strike, the sacking of
Bata workers in the 70’s merely for having stopped worked for a few minutes,
the massive sacking of DWC workers in 1992, by the then MSM-MMM government,
or more recently in 2001 of 26 workers of Lord Jym and in 2003 of the White
Sand Tours dismissal of 60 workers. Just to mention a few. The third form
of victimisation under the IRA has been ‘anti-union victimisation’, where
employers used the IRA to decapitate the entire leadership of a union or
intimidate workers in order to quash any form of industrial action. The
sacking of the entire executive members of the CEB Staff Association after
the 1988 strike, was a blatant example of leadership decapitation under the
IRA. The sacking of one Union leader of Retreaders in the 80’s or that of 91
workers of Le Meridien hotel, are yet other examples of this type of
victimisation. There are numerous recent examples where the IRA has been used
to intimidate workers who threatened industrial actions. We had the ‘Deerpalsing
saga’ under the previous regime, where threats and even sackings of the
entire Managing Committee of a health sector union’s occurred just because of
the mere announcement of possible industrial actions. Similar threats were
used by the present government when teachers threatened to go on strike two
years ago or when Custom Officer’s union protested against the colonialist
attitude of the Custom Controller. Threat of complete de-registration of the
Custom was even mentioned in this case. Historical betrayal of political parties The struggle by the workers
movement for the replacement of the IRA has forced all political parties to
include its replacement or amendment in their electoral program since 1982.
But nevertheless, successive governments since 1982 have betrayed their
commitment to change the IRA. On the contrary all of them have used the IRA
to victimise workers as explained in some examples above.
One can note three phases
in the attitude of successive parties in government and the State towards the
replacement of the IRA.
1973 – 1982
The first phase is the 1973
- 1982 phase. Under severe pressure, specially after the 1979 and 1980
workers' strike and movement, the then government had to concede that the IRA
was fundamentally wrong and set up a select committee to bring about some
democratic amendments to the IRA. Three motions were brought in Parliament by
Hon Paul Berenger, current Prime Minister, Sir Aneerood Jugnauth, the present
President of the Republic and Hon Kader Bhayat, of the leadership of the MMM
at that time. These motions were
rejected. In 1982, the replacement of the IRA was one of the priorities of
the MMM/PSM Manifesto before the election. After the election the replacement
of IRA seemed not to be a priority any longer. The then government split just
a few days after the Select Committee chaired by Hon. Jayen Cuttaree, which
was set up after the 60-0 victory of the MMM/PSM, submitted its report. Though we would not agree with all that
were proposed at that time, the Select Committee Report contained numerous
positive and democratic recommendations, specially concerning the right to
strike. The new Jugnauth regime of 1983 set up yet another Committee, chaired
by Me. Jean Claude Bibi, the then Minister of Justice. Unfortunately his
report was never made public.
1983 – 1990 From 1983 onwards
the replacement or the amendment of the IRA was still part of the electoral
manifesto of most political parties, but never became a priority once these
parties took power. Worst, the IRA was used to severely repress workers. In
1990 when the MMM and the MSM concluded a new electoral alliance, the IRA
together with its twin legislation, the POA, was part of the ‘4 points’
electoral agreement. They set up the Garrioch Committee, which subsequently
produced its Recommendations. The government once again split in 1993 before
any changes could be brought to the IRA. 1994 –2004
1994 marked a
fundamental shift in the approach of the state towards the IRA and industrial
relations. If the first two phases described earlier were more inclined, even
if in more rhetorical terms, towards democratic changes to the IRA, but
tainted with betrayals, 1994 marked the first attempt of the state to align
the industrial relations legislation to the dogma of neo-liberalism. The then
government manipulated some of the proposals of the Garrioch Commission and
came out with a twin bill called the Trade
Union and Labour Relation Bill and the National Pay and Productivity Council (TULRB and NPPC) to replace
the IRA. The aim of this twin legislation was to transform the minimal work conditions as they
existed, into maximal wage and work
conditions under the authority of state apparatus. It would have also
introduced pseudo-collective bargaining where strikes are hindered by a
series of “Thatcherite” inspired mechanisms. In the final analysis, it came
out that the first ever legislation presented to replace the IRA was much
worse than the IRA itself. This is why the trade union movement in its
totality rejected the very philosophy of the TULRB-NPPC. Between 1995 and
2000, the then government, under the pressure of IMF, World Bank, and
employers campaigning against so-called “rigidity in wage setting
mechanisms”, attempted to blackmail unions by trying to link the payment of
the CSAT Award to the unions’ commitment in favor of a new “wage setting
mechanism”. This project of the government failed due to the pressure exerted
by the trade union movement united in the “All Workers Conference” at the
time. Lim Report and Deregulation After the 2000
general elections, the Joint Economic Council and the Mauritius Employers
Federation, in conjunction with IMF and World Bank, intensified the pressure
to eliminate what they called the existing “rigidities” in existing
legislations. They even proposed the abolition of the Annual Salary
Compensation together with Annual Tripartite Committee.
The whole of
the union movement totally rejected the Lim Report. The government has not
rejected the Report, but referred it to the NESC for discussion, where unions
once more opposed the very principle guiding the Lim Report. It is in this
general context that proposals for replacement of the IRA came forward. This
is what makes unions suspicious of the real motivation pertaining to the
present decision. Is the
government succumbing to the pressure of the employers, IMF/WB and
neo-liberal ideologues to align the IRA to the Prof Lim Report? After having
been betrayed for 30 years by political parties in government, are we now
faced with a remake of the TULRB/NPPC scheme, to bring in a new legislation
that can be worse than the IRA ? If this is to
be the case, then the Union movement will have no option but to reject
outright the proposed new bill. The trade union will not accept any attempt
to introduce the Lim Report by the back door while replacing the IRA, nor
will we accept any attempt to undermine the principle of minimal wages and
work conditions as guaranteed by the Remuneration Orders. Neither will we
accept the dismantling of institutions that set minimal wages, work
conditions and job descriptions in different work sectors. This stand was
clearly spelled out by the Resolution of the special Conference organised by
all the Trade Union Federations on the 19th November and attended
by some 900 delegates. A Leap
Forward or a Return to Colonial Time ‘slaverism’? The government
is at the crossroads. Either it succumbs to the pressure and propaganda of
the employers and brings in an industrial relations system comparable to the
jungle and ‘slaverism’ of the colonial period or it takes this opportunity to
make a historical millennial leap forward in line with historical democratic
progress comparable to the abolition of slavery in 1835, the abolition of
indentured labour system in 1922 and the introduction of industrial
associations and trade unionism in the 40’s. We believe
that when designing a new legal framework for industrial relations in
Mauritius, the present government and specially the Prime Minister, more than
anyone else, has a historical obligation to correct the gross injustice
suffered by workers for more than 30 years. The guiding
principle of the present review should be the establishment of democracy in industrial relations, the
re-instatement of the fundamental
rights of workers, such as the right to strike, that were confiscated by
the IRA, introduction of mechanisms to force employers to negotiate in good
faith and to ensure that minimal wages and work conditions of workers in all work sectors are protected by law
and proper mechanism. Proposal
for a The trade union movement proposals are at two levels,
interlinked and combined. It is a two level proposal to introduce a new
democratic legal framework for industrial relation.
The first level is the Constitutional Amendment and the
Ratification of ILO Conventions to ensure that basic workers' fundamental
rights are protected in any new industrial legislation. And also to ensure
that no government can ever introduce such legislation as the IRA in the future.
The second level are proposals that should form the basis
of any new industrial relation legislation.
Enshrining Workers Basic Fundamental Rights Constitutional
Amendment
We propose
that the Constitution of Mauritius be amended prior to the introduction
of the new legislation, to include
the right to strike as a fundamental right. As stated in
motions presented by the Sir Aneerood Jugnauth, Hon Paul Berenger and Hon
Kader Bhayat in 1979, the “right of workers to strike is just as
fundamental as the right to belong to trade union of one’s choice”. The
existing legal framework for the last 30 years “denies to workers this right which has in past been acquired
through long and painful struggle. The very idea that workers can be treated
as Criminals simply because they have collectively chosen no to go to work is
reminiscent of engagement and serfdom. Exercise of the right to strike should
not result in the loss of benefits such as severance allowance acquired often
after long period of service and in the loss of employment” (quotes from
Motion No. 51 presented in National Assembly, 1979) The proposal
for the amendment of the Constitution is not a new proposal. It was proposed
in the electoral program upon which the current Prime Minister, stood for
Prime Ministership in 1983. And the aim, which we fully endorsed, was rightly
spelled out. Let us quote.
(a) Proposer un amendment a la
Constitution afin d’y proclamer solennellement, à la section 3, le droit des
travailleurs de se syndiquer et le droit inalienable des travailleurs à la
grève. Cet amendment ferait de l’Industrial Relation Act une loi
anti-constitutionelle et empecherait tout futur gouvernment de droite de
faire voter un nouvel IRA…” Proposals for a New Democratic Industrial Relation Legislation Membership
Role of the Registrar
2.
Recognition
3.
Industrial Dispute
Voluntary Arbitration
We are
categorically against any form of compulsory conciliation or arbitration,
because this is precisely what encourages the employers to negotiate in bad
faith, without making any effort to reach a settlement. The employers are
very well aware that the present legislation will inevitably channel all
disputes towards compulsory arbitration which may last anything from 6 months
to 6 years. This is certainly one of the worst and much contested aspects of
the present IRA. It creates the fundamental structural weakness for the trade
union movement and the working class. This is one of the fundamental changes
that must be taken on board in any new industrial legislation. In this
respect we propose that all industrial disputes be settled by direct
negotiation between unions and employers. We propose that in case of any form
of deadlock between unions and employers, there should be ONLY voluntary
arbitration or conciliation. Unions should have the choice to submit the dispute to voluntary arbitration or
conciliation. In this respect mechanism such as PAT/CSAT should be reformed
so as to be more efficient and specially for it to be able to give its
findings in a time frame agreed between parties to the dispute. We
categorically oppose any attempt to split the definition of industrial
dispute into “dispute of rights” and “dispute of interest”. Workers should be
free to declare dispute on any matter affecting their work conditions. We also propose
the immediate ratification of ILO Convention (No. 154) concerning Collective
Bargaining. Right to Strike
Since we do
not agree with any form of compulsory arbitration or conciliation, it follows
that we believe absolutely that workers and unions should have the right to
go on strike at any given moment. We propose
that as soon as there is any dead-lock in the negotiations between unions and
employers, the union should inform the Ministry of Labour that a ‘state of
strike’ exists in that site or that sector, and that work could cease at any
time. The ‘state of strike’ (état de grève) comes to an end when there has
been an agreement that satisfies unions and workers. We believe
that the concept of “state of strike” adds a new form of pressure to ensure
that employers, who we must not forget control all the economic means,
negotiate in good faith. As firmly
stated in the introduction to this document, we totally oppose the
elimination of Remuneration Orders and mechanism such as the NRB or PRB that
set minimal wages and work conditions in different work sectors. We believe
that such mechanisms should be maintained for three reasons: ·
To register all collective agreements reached as an
outcome of direct negotiations between unions and employers ·
To establish and revise the existing minimal wages and
work condition in sectors where there is no trade union or when it is
practically difficult to conduct collective agreement (example where there is
a high rate of contractual/seasonal labour, or for domestic employees). ·
To harmonise and revise work condition at sectoral and
national levels by taking into consideration collective agreements that have
been registered. And to proclaim Remuneration Orders to set the current
minimal standard of wage and work conditions. In addition to
the right to strike after a ‘state of strike (état de grève)’ is declared, we
believe that workers should have the right to strike when there is
provocation by employers, physical or verbal violence towards workers,
unilateral alterations in work conditions, or non respect of health and
safety regulations. We maintain
that workers should have the right to hold solidarity strikes as exists in
many countries. At the same
time we propose that legislation should allow picketing at the work site
without any hindrance from other laws such as the PGA, PSA or POTA. We take
this opportunity to call for the repeal of the PSA, POTA and Amendments to
the PGA. Since the
right to strike is a fundamental human right it follows that we reject the
notion of “illegal” strike and sanctions for participation in a strike. It
follows that it is totally unacceptable that workers should risk their job
and severance allowance or any accumulated dues for having simply
collectively withdrawn their labour in a strike or other industrial action
such as go-slows or refusal to do overtime. It follows that any form of
criminal proceeding or imprisonment is unacceptable for participation in a
strike. As the IRA is at the moment, all strikes are illegal, and employers
are empowered to ‘discipline’ and sack workers who have gone on strike, and
use all the repressive means at their disposal to ‘break’ the strike. It must be
pointed out that in such countries as Austria, where the right to strike
exists, there are hardly any strikes, for the simple reason that the right to
strike tends to set a new equilibrium in the unequal balance of forces
between workers and employers. 4. Trade Union Representatives Should Be
Protected as Human Rights Defenders
The
fundamental right to belong to a trade union, as stipulated in our Constitution, can only be exercised
as long as democratically chosen representatives are adequately protected
against all forms of victimisation and the same representatives are afforded
adequate facilities and time to discharge their responsibilities as trade union representatives. Any form of
victimisation or lack of facilities would be tantamount to a violation of
this fundamental right to belong to a union. The present legal framework
enables employers to violate this fundamental section of our constitution at
any time. The new law should address this issue and be in conformity to the
Constitution. We believe
that union representatives should be considered as human rights defenders and
as such should be protected by law. We wish to point out that the State of
Mauritius has ratified the International Protocol on Human Right
Defenders[1] . The introduction of the new industrial
legislation should be an opportunity to enlarge this concept to trade union
representatives, as labour rights are human rights. The new law
should also clearly state that adequate facilities such as: union offices at
work place, time off facilities for unions representatives (officials,
delegates or any workers delegated by a union) to participate in union
related activities, union access to documents such as legislations,
conventions, statistics, and union access to the enterprise finances should
be made available. In addition it
should be clearly spelt out that workers and unions shall have the right to
be represented officially by the legal and technical advisor of their choice,
at any given union activities, including access to work sites and
negotiations. Conclusion We believe our
views and proposals have been clearly stated and we hope they will be taken
into consideration when the draft bill is presented to the unions. We reserve
the right to bring into the process further argumentations and proposals when
the fundamental principles that we have been proposing are integrated in the
new legislation. We would like
to end by two philosophical points. Firstly a
quote from a book by Richard Hyman on Industrial Relations for the benefit of
people who see industrial relations as a ‘technical’ subject or a matter
“wording’. He says: “ to define the subject exclusively in terms
of rules and regulation is far too restrictive and has unfortunate evaluative
overtones. The implication is that what industrial relation is all about is
the maintenance of stability and regularity in industry. The focus is on how
conflict is contained and controlled, rather than on the processes through
which disagreements and disputes are generated. From this perspective, the
question whether the existing ownership and control of the industry is an
inevitable source of conflict is dismissed as external to the study of
industrial relations” Secondly,
which follows the first quote, is ours and is based on the cruel reality of capitalism.
When taking about industrial relations, we not are dealing with “equal
partners’ in a production process; one ‘partner’ owns the means of production
and his aim is to maximise profit and accumulate capital, while the other
‘partner’ are workers (not machines) who only have their labour to sell for a
living. “Industrial relations” is nothing else but the means of expressing
this fundamental inequality of the present society. January 2004
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[1] Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote and Protect Universally Recognized Human Rights and Fundamental Freedoms A/RES/53/144 |