Trade
Union Common Platform
Memorandum
On the White
Paper
for a new legal
framework for industrial relations in Mauritius
Federation of
Progressive Unions (FPU),
Mauritius Labour
Congress (MLC),
State Employees
Federation (SEF),
Federation of Civil
Service and Other Unions (FCSOU),
Federation des
Syndicats des Corp Constitues (FSCC),
Mauritius Trade
Union Congress (MTUC),
General Workers
Federation (GWF),
Mauritius Labour
Federation (MLF),
Free Democratic
Unions Federation (FDUF),
Confederation
Mauriciennes des Travailleurs (CMT),
Federation of Free
Workers (FFW),
Federation des
Travailleurs Unis (FTU),
National Trade Union
Confederation (NTUC)
17 December 2004
Since the announcement by the government of its intention to replace the Industrial Relations Act by a new legislation, the trade union movement has constituted a common platform to express its views and proposals on the issue.
In January 2004, the Trade Union Common Platform (TUCP) submitted its concerns, views and proposals to the government after a meeting with the technical committee set up by the Ministry of Labour and Industrial Relations. Now some months before the dissolution of the National Assembly the government has finally come out with a White Paper and has asked for comments and counter proposals before the end of December 2004.
Hereunder are the views of the Trade Union Common Platform (TUCP) which are the outcome of several meetings since the publication of the White Paper.
The fact that the White Paper has been presented only after four years of government by the present MSM/MMM Alliance and a few months before the dissolution of the National Assembly raises some serious concern about the real intention of the government. Is this not a political manoeuvre in the context of the coming electoral campaign?
It cannot also be denied that the publication of the White Paper has led to lots of confusion coupled with threats from the government as bears testimony the facts that
(i) the Minister, when presenting the “White Paper” has on several occasions referred to it as a “draft bill”,
(ii) official representatives of the Ministry have stated that sections of the present IRA will be incorporated in the new legislation without mentioning what are these specific sections being referred to and
more alarming have been public threats, which is definitely tantamount to a form of blackmailing, made by the Minister towards the trade union movement with such public statement “si zot pa dakor, mwa mo les IRA anplas”.
The trade union movement wishes to make it clear from the outset that it is the trade union organisations that have been struggling for the replacement of the IRA with a new democratic legislation. Political parties in the present government, which were close to the workers struggle in the 70’s, and who have been at some point in time in almost all the successive governments after 1982, have consistently, either betrayed their successive engagements to replace the IRA or have used the IRA to victimise workers or still worse have presented legislation more horrific than the existing IRA.
The trade union movement vehemently condemns any form of blackmailing by the government in the context of the present debate on the White Paper. Views and criticisms expressed in the present memorandum are part of our struggle for the replacement of the IRA by a new democratic legislation. Our views are based on democratic principles, the necessity of real industrial democracy, the need to defend and enhance the rights and living standards of working people and coming generations, whose only means of subsistence is the selling of their labour. This is in line with the tradition of the workers’ movement of this country being at the forefront of all democratic and progressive historical struggles since the beginning of the 1930’s. Our views are not motivated either by greedy profit making interests or by partisan electoral manoeuvres.
It is publicly known that the capitalist class, together with international financial institutions like the IMF and WB have been pressing for some years now for the deregulation of existing labour laws and work conditions. For the bosses, existing minimal wages and salaries are “rigidities” that need to be get rid of for more “flexibilities”. In this context employers’ organisations have been demanding the elimination of existing wage determination mechanism such as the NRB that establishes the minimal wages with Remuneration Orders covering some 80% of the workers in the private sector. It was in the midst of this pressure that the present government in 2002 ordered a Report from Prof Lim of Singapore. The report was rejected by the trade union movement in its totality. It is important to stress that the government never rejected the Report, instead it referred it to the National Economic and Social Council, where once again the trade union movement objected to it. The Mauritius Employers Federation (MEF) memorandum submitted to the government in the context of the present review, is more or less a carbon copy of what was proposed by Prof Lim.
After several meetings of the Trade Union Common Platform it is concluded that the White Paper has in fact incorporated most of the employers’ philosophy, analysis, concerns and proposals while rejecting almost all of the trade union movement proposals.
The objective of the bosses is to make the working people and coming
generations shoulder the burden of the ‘globalisation crisis’ and the
bankruptcy of their neo-liberal economic development strategy. This is what the
White Paper fundamentally aims at: to impose pseudo collective
bargaining, without real right to strike in order to lessen existing minimal
wages and work conditions. Coupled with the proliferation of precarious
labour, the codification of what is being proposed in the White Paper into a
new legislation will inevitably lead to a decline in the bargaining power of
the working class and lead to a general decrease in wages and work conditions
of workers in the coming years. The trade union movement stands up and
objects to what can be considered as one of the most dangerous attack ever made
against the interest of working people of this country. We reject the very
philosophy of the White Paper.
While introducing the concept of “concession bargaining” which makes it possible for lessening existing sectoral wages and working conditions, the White Paper makes it quasi impossible for workers to use the right to strike to defend their existing living standards, let alone the possibility to acquire new rights. The white paper just re-adjusts the existing power of the Minister under the IRA to impose compulsory arbitration in order to render industrial actions illegal by firstly replacing it with ‘compulsory conciliation’ and secondly displacing this power to a later stage, when workers start to strike. It does not depart in essence from the philosophy of the IRA. The mechanism proposed will inevitably re-enforce the already favorable balance of forces in favour of bosses and worse, opens the possibility for blatant blackmailing by bosses in the process of “collective bargaining”.
The government White Paper has come up with such dangerous proposals because it embraces the erroneous analysis made by the Mauritius Employers Federation that “one of the major constraints to collective bargaining has been the provision in the Remuneration Orders to the effect that “ Nothing in these regulations shall authorise the employer to reduce the worker’s remuneration or alter his conditions of employment so as to make them less favorable to the worker”. The contents of the White Paper in its introduction on “Collective Bargaining” (page 9 (c) ) is almost a re-phrasing of the analysis developed by the MEF in its memorandum!
The government White Paper has completely rebuffed the fact that it is the non-possibility for workers to exercise their fundamental right to strike by the imposition of compulsory dispute settlement mechanism that has caused real collective bargaining to be non existent for the last 33 years. According to the reasoning of the MEF and government, workers working for more than 45 hours a week in the free zone did not wish to enter into collective negotiation for new work conditions because of the existence of the pittance of basic wages of Rs 2,600 and the 10 hours compulsory overtime governed by a Remuneration Order which dates 20 years back! …..and the solution then, according to the White Paper and the MEF, is to provide legislation enabling the lowering of this pittance and increasing compulsory overtime, for workers to engage in collective bargaining! Such absurd reasoning can only emanate from quarters completely blinded by the neo-liberal propaganda!
While the White Paper has retained marginally some minor proposals from the trade union movement, this is largely submerged within the whole framework set up to deny the right to strike while imposing concession bargaining on workers.
The irony is that in trying to embrace MEF analysis, the MSM/MMM White Paper even goes on to see history and the introduction of the IRA itself through the prism of the bosses, thus betraying the MMM movement own poltical history. Describing the history of the IRA (page 7 section 3) the White Paper endorses the views of the capitalist class of the justification of the repressive IRA and states that the IRA “have worked fairly well in maintaining industrial peace……..” The White Paper even goes on to quote the same quotations of the MEF (White Paper page 7, MEF document page 3).
For years, the trade union movement has been asking for some fundamental pre-requisites in the context of the review of the IRA. Since the statement in the “Speech from the Throne” of the President of the Republic, unions have been calling for these pre-requisites to ensure that a new legislation be in line with democratic principles and not in line with bosses agenda for lowering living standards of the people. We re-iterated these pre-requisites officially during our first meeting with the Ministry of Labour and Industrial Relations and in our January 2004 memorandum. All of these fundamental pre-requisites have been totally rejected by the government, without any convincing arguments.
In our memorandum we clearly stated our fundamental opposition to any
attempt to undermine the principle of minimal wages and work conditions. We said “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 spelt
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.” The present government has
chosen to completely brush aside this fundamental objection of the trade union
movement!
Pre-requisite
2 rejected
Our insistence for the inclusion of the right
to strike as a fundamental right in the Constitution prior to any review of the
present IRA has been completely rejected by government. We insisted for this
inclusion to ensure that the review is in conformity to the fundamental right
to strike. Reasons given for this rejection are totally far-fetched. When
analysing the various restrictions that render strikes illegal, the real
reasons of this rejection become evident.
Pre-requisite
3 rejected
Our proposals for the Ratification of ILO Convention 87* and 154* prior to presentation of the White Paper has been rejected. The Minister has now announced that the ILO Convention 87 will be ratified at the same time that the new Bill based on the White Paper will be presented in the National Assembly. This is tantamount to blackmailing! The government is saying that only if we agree to the contents of the White Paper and the proposed new legislation, only then Convention 87 will be ratified. If Convention 87 had been ratified, Unions would have been able to challenge the contents of the new legislation: whether it is in conformity with the Convention or not. In relation to ILO Convention 154, which clearly spells out that collective bargaining should be voluntary process, it is quoted in the White Paper, without daring to propose its ratification. The obvious reason can only be that the proposals in the White Paper violate this Convention.
Pre-requisites 4 rejected
No to the interference of State and employers in the democratic functioning and administration of union
Most of our proposals for the State and bosses not to interfere with trade union activities have been rejected
In our proposals we insisted that there could
be no collective bargaining without the effective existence of the Right to
Strike.
The reasons, if any, given for the
non-inclusion of the right to strike as a fundamental right in the Constitution
are very flimsy. At page 14, paragraph (e) the White Paper states that “as regards the right to strike, the proposal
of the trade unions to include the right in the Constitution has been examined”.
The White Paper refers to the ILO database and states that two countries in the
world have the right to strike enshrined in their Constitution. A quick search
on the Internet will reveal that a wide variety of countries such as Spain,
Cameroon, Benin, Tchad and even Morocco have the Right to Strike enshrined in
their Constitution. The White Paper, which mentioned South Africa in other
proposals, does not even mention South Africa where such right exists. The
White Paper then quotes the section of the French & Italian Constitution stating “France
- “the right to strike shall be exercised in conformity with legislation that
governs that right” “ Italy - the right to strike shall be exercised
within the limits set by the laws that govern it”. The White Paper then
goes on to state that “in the light of
this information, it is not considered necessary to introduce such a provision
in the Constitution” of Mauritius! All fundamental rights enshrined in the
Constitution are exercised within the limit set by laws that govern them but to
the extent that such law is shown not to be reasonably
justifiable in a democratic society. The “Constitution is the supreme law of Mauritius
and if any other law is inconsistent with this Constitution, that other law
shall, to the extent of the inconsistency, be void.”. If the right to strike was enshrined in
Section 3 as we proposed, then any citizen could have challenged any industrial
legislation that violate this right. When we analyse all the restrictions and
limitations imposed on the right to strike by the White Paper it is clear that
a new legislation would not have passed the Constitutional test if the right to
strike was enshrined in the Constitution!
While mentioning the right to strike in
France’s Constitution, the White Paper failed to point out that because of the
existence of this right, French legislation and Court Order state that the
exercise of this right "ne doit
donner lieu de la part de l'employeur à aucune mesure discriminatoire en
matière de rémunération et d'avantages sociaux" (cf L. 521-1, al. 2 du
Code du travail), et la loi du 25 juillet 1985 que son exercice normal ne
pouvait donner lieu à aucune sanction de la part de l'employeur.”
The denial of the right is reminiscence of slavery. The slave has to work whether he likes it or not. Slavery denies to the enslaved their basic human rights. The slave is treated by the master like an unfeeling production machine which is kept and maintained while productive.
The master in effect owns and controls the slave through what he can force the slave to do by means of the laws of the land (like the Code Noire) and by force of economic necessity.
The free man may withdraw his labour at will. He enters into a voluntary agreement with someone else in which he agrees to carry out some specified work in return for a specified amount of pay. If there is disagreement between them he may freely withdraw his labour. This is a most essential right, the right of every citizen, of every worker, to associate with others and withdraw his labour, to go on strike.
People are enslaved when they are forced to work through need, have to work to survive. They are enslaved to the extent to which they are forced to accept mere survival existence in return for the work they do. They are free to the extent to which they are able to choose freely between one employer and another, to the extent to which they are backed by a comprehensive system of social security and services if falling on difficult times.
A workforce which cannot withdraw its labour at will is either oppressed or
enslaved. A free people has the right to strike and can exercise this right and
support those who exercise it.
The extent to which the right to strike is acknowledged and supported by a
government's enacted legislation states clearly the extent to which its
political philosophy and policies are authoritarian, class-biased and
oppressive and the extent to which the working population can be subjected to
oppression and exploitation through need.
The right to strike is a right which is recognised in international treaties, including the European Union's Social Charter. The United Nation's Covenant on Economic, Social and Cultural Rights, to which Mauritius is a party also enshrine the right to strike.
In most European countries, like those mentioned earlier, the right to strike is enshrined in, and protected by a written Constitution. The contract of employment of those who are on strike is considered suspended for the duration of the strike. It is not considered to have been broken.
Denying the right to strike, enables owners and directors to cut down the wages
and work conditions of large sections of the working population. This is precisely the dynamics that will be unleashed if
proposals contained in this White Paper on Right to Strike and Collective Bargaining are codified in law. The IRA denied the right the strike but
included mechanism to establish minimal sectoral wages and work conditions. The
White Paper still denies the right to strike, but create the conditions for the
decline of wages and work conditions.
§
Sections 5.6.1 (iv) states
that workers of the Public Service will not be able to declare a dispute if
they “opt” for the recommendations in any report on remuneration and
allowance. Hence the elimination of all
possibilities of strike for a whole section of the work force of the country.
The scurrilous amendment brought in the IRA after publication of the PRB
Report, a few months before the publication of the White Paper, has been
sneaked in through the White Paper. The
TUCP believes that this is completely unacceptable because :
o
Report such as the PRB stems
from an institution that the government as an employer sets up itself.
o
Such Reports include contents
that are qualitatively unlike. It is thus not possible to adopt a “take it or
leave it attitude”.
o
Such Reports is not the
result of a dispute nor the less the result of a process of Collective
Bargaining. It is an arbitrary and unilateral process of determining minimal
salary and work service under the umbrella of the State.
§ The White Paper has bowed down to the demand of the bosses to exclude all legal rights from the definition of the Industrial Disputes (sec 5.6.1 (i)). This means that the possibility of strike on what can consist of some 50% of the disputes at work place has now been totally excluded. The recourse is for workers to go to Industrial Court with costly procedures, postponements and appeals. This also brings us to the absurd situation where strikes will be illegal when an employer cuts the wages or sick leave of his employees, while strikes, to the extent that it exists, are legal if workers ask for an increase in salary or sick leave!
This new definition also introduces another dangerous absurdity: When workers do not comply with law an employer can sack them, because this is considered as breach of contract, while when an employer does not comply with the law, workers will not be able to withdraw their labour and go on strike!
When analysing the proposed separation of Disputes into disputes of rights and
disputes of interests in conjunction with the introduction of Concession
Bargaining, one depicts perhaps one of the most blatant contradiction and
cynical motivation of the government’s White Paper. While workers and unions
cannot declare disputes on legal rights - this means that these rights are not
included during Collective Bargaining process - the White Paper proposes that
the same legal rights, as stipulated in Remuneration Orders, can be surrendered
though Concession Bargaining! We reject both proposals, to separate disputes
and concession bargaining.
§
Disputes in what are being
described as “essential services”, Fire services and Prison Department will be
subject to compulsory arbitration (sec 5.7.7 (vi)). Thus all strikes
possibilities are automatically excluded.
The White Paper does not list what are the essential services. It is
left to the political discretion of the regime. Anything from transport,
education, health services to postal services or customs can be declared
essential services at any moment. We say that the right to strike should exist
irrespective of the work sector. Furthermore the trade union movement of
Mauritius strongly objected to the introduction of this concept at an ILO
Seminar held in Mauritius in 2002. We stated that this provision was introduced
at a time when essential services were provided by the public sector. In
Mauritius the government has just passed a law such as the Public Private
Partnership (PPP) to contract out all services provided by any
government or parastatal body to the private sector. It is not possible to
limit the right to strike of workers working under the rule of such people
whose principle motives are to maximise their dividends through workers’
exploitation.
§
Strike is not permitted
outside the scope of collective bargaining process at enterprise or bargaining
unit level.
o
This means that a federation
is not entitled to declare a strike to defend its members’ interests
o
Strikes against economic and
social legislation and policies that affect the interest of workers are
prohibited. This means that if a new legislation is brought in to raise VAT to
30%, thus seriously undermining workers living conditions all strikes will be
illegal.
o
Strikes against layoff in an
enterprise or bargaining unit are prohibited
o
Solidarity strikes by
Federations, unions organised at sectoral level or any organsation of the trade
union movement are prohibited
If one does not fall within the above list of
restrictions, it is only then that the dispute settlement mechanism proposed in
the White Paper will be applicable and, only then, the ‘possibility’ of strike
exists. Let us examine what is being proposed:
Ø
The Minister must be notified
on all industrial disputes between employers and trade unions, whether existing
or apprehended.
Ø
Where a dead lock occurs in
the negotiation, both parties may jointly opt for voluntary conciliation or
Arbitration by any person or the proposed Commission for Arbitration (which
will give an Award within 3 months) or
either the employer or a trade union can report the dispute to the Minister.
Ø
The Minister can then decide
arbitrarily to force both parties to continue negotiation if he believes that
negotiations have not been conducted in “good
faith”. No time limit is mentioned when the Minister exercises this option.
Or the Minister may refer the dispute
to its own Conciliation and Mediation Service for settlement. A time limit of
21 days is imposed for the completion of this procedure. If no settlement is
reached within the time limit then the Minister is informed within 7 days and
the White Paper says he “shall” refer the dispute, this time, to the Commission
for Conciliation and Mediation nominated by the same Minister. It must be
mentioned that no time limit is provided for in the White Paper between the
time the Minister is informed and the reference to the Commission for
Conciliation and Mediation. Within a time frame of 21 more days, if there is
still no agreement, according to section 5.11 of the White Paper, the
Commission will issue a “certificate” stating whether “any party to the dispute has not acted reasonably and in good faith”.
Ø
If the Certificate of the
Commission states that the Union has acted in “bad faith” then the employer can
refer the dispute for compulsory arbitration. This is the first time in the
history of industrial relations in Mauritius that an employer, who is NOT the
initiator of a dispute, can refer the dispute for compulsory arbitration!
It is vital to mention that the same Minister’s
Commission which will have the power to “make
proposals” to the parties or “to
advise” the parties to refer the dispute to Compulsory Arbitration (section
5.6.3.4) will have the power to issue a certificate of “bad faith”. Any refusal
of the unions to accept its proposals will easily be interpreted as “bad
faith”. Any refusal by the union to
extend the deadlines (21 days in both cases) in procedures can also be
interpreted as “bad faith”. Unions will also be under pressure to extend the 49
days time frame (21+8+21) to an unlimited period to avoid being charged of “bad
faith” and be forced to arbitration.
Bad faith can be anything that the Minister or the Minister’s Commissioner
arbitrarily and subjectively believe. According to the definition of “bad
faith” in section 5.4.11, a union who mobilize its members on the demands in
disputes or hold a press conference informing the public of the disputes or
preparing industrial action will commit a “bad faith”.
Ø
If by miracle a union obtains
a certificate of “good faith” it is only then that the union can start strike
procedures;
o
The Union shall give a 20
days notice to both Minister and the Employer (by the way this means that a union
has to inform the Minister three times before any strike) before the strike
starts. (The strike shall commence not later than 30 days from the day of the
notice)
o
Union should hold ballot for all workers in the said bargaining unit
or enterprise, and not members of the union who are parties to the disputes.
The Thacherite system of ballot is imposed in the place of workers democracy of
hand voting.
o
The same Minister’s
Commission must be called to organise ballots for the strike
o
The Minister can intervene at
any moment and will surely again have a chance of declaring that unions have
acted in “bad faith”
o
If ever unions and workers
succeed in completing all the above procedures and strike, then the Minister as
with the present IRA, can simply refer the matter for Compulsory Arbitration
and render all strikes illegal. (Section 5.7.8 (i))
o
If by chance we get a
Minister of Labour like the one we had in 1992, who misused the power conferred
upon him to intervene in favour of the employer during the DWC workers strike,
then it is the Prime Minister who can apply for an injunction to the Supreme
Court to render the strike illegal! The
fact that the absolute power does not lie in the hands of Prime Minister does
not fundamentally make any difference, given that the Right to strike is not a
fundamental right guaranteed under the Constitution. The Supreme Court will
judge the Prime Minister’s demand within the existing constitutional and legal
framework.
o It should be added that the legality of a strike has also been made conditional to the maintenance of an imposed “minimal service” as the Minister “so determines” and in the case of ‘essential services” when there is no agreement, the Commission for Arbitration may determine the minimum service upon application by the employer. This provision defeats the whole purpose of a strike. The provision of a minimum service cannot be imposed and should be left to the discretion of the unions to decide the appropriate measures to be taken. Otherwise the workers lose their fundamental right to strike.
For reasons stated in previous sections we
totally reject any attempt to introduce the concept of “concession bargaining”
in any new legislation.
The introduction of Concession Bargaining,
specially on existing minimal rights, within the realm of Collective Bargaining
will change in a fundamental way the whole system of wage and work condition
determination in Mauritius in favour of the bosses. More so that workers will
not be in a position to exercise their right to strike.
It is clear from section 5.5.3 (i) that new
legislation, such as Remuneration Orders, will in the future contain provisions
to abolish the principle of minimal wages and work conditions. This is just
what the MEF is recommending.
Section 5.5.3 on Concession Bargaining the door
wides for blatant blackmail by employers to lessen workers minimum wages by
raising issues of “protection of employment”. This is absolutely unacceptable.
When applied together with section 5.5.4, which
provides the variation of collective agreement, where an employer can at any
time refer a disagreement on an existing Collective Agreement, it will be
possible for employers to bring in issues relating to Concession Bargaining to
the Tribunal, thus turning the whole system upside down.
The White Paper also proposes that Collective
Agreements which can include concession bargaining be binding. This means that
Collective Agreements will be binding upon all individual workers
whether they are satisfied or not. Workers should retain their fundamental
rights to adhere or not to a collective agreement.
It
follows from the above criticisms that unions’ movement totally rejects the
White Paper proposals in regards to Right to Strike, Dispute Settlement
Mechanism, Collective Bargaining and Concession Bargaining, as it denies even
more than the IRA the right to strike and the right to a fair collective
bargaining. The only improvement brought
in the White Paper has been the establishment of a time frame for the Tribunal
to issue an Award and the meager possibility to strike in cases of major health
and security threats. But even then notification is required to the Minister.
Ø
In addition to the Right to
Strike in the Constitution, 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. At this stage the Unions should have the option to either go on strike
or opt to refer the matter to Arbitration.
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. We reject the present attempt to codify the concept
“good faith or bad faith” into law, as it is open to arbitrary and subjective
interpretation and even to political interference. Good faith can only prevail
when right of workers, such as the right to strike, and simple democratic
mechanism as we are proposing are guaranteed. When fundamental rights of
workers are guaranteed, it contributes to re-equilibrate to a certain degree
the unequal balance of power relation between employers and workers.
Ø
We once again call for
the introduction of the principle that a worker cannot be sacked or dismissed
in relation to participation to a strike, be it legal or “illegal”. The only
rational measure that an employer can take is the non-payment for the days of
non attendance at work. The White Paper is rightly proposing the elimination of
any criminal proceedings in relation to participation in a strike, but the
“whip” of sacking workers remains in the hand of the bosses.
Ø
We reject the principle of
Concession Bargaining in relation to Remuneration Orders and Awards.
Remuneration Orders cannot be overruled by Collective Agreements. Collective
Bargaining should begin over and above
what is being prescribed in Remuneration Orders or PRB Reports. The trade union
will NOT allow in any circumstances that principle of lowering salaries and work
conditions be enacted in law or within the Remuneration Orders itself. We
object against the proposal to limit the role of the NRB to specific sectors.
As firmly stated in the introduction of our 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 the three fold 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 conditions 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
conditions 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. We object to
any attempt to eliminate the job descriptions section in Remuneration Orders.
All
sectors of work MUST be covered by a Remuneration Order, in addition to
any Collective Agreement.
Ø
In addition to the right to
strike after a ‘state of strike (état de grève)’ is declared, we believe that
workers should have the absolute right to strike when there is provocation by
employers, physical or verbal violence towards workers, unilateral alterations
in work conditions, non respect of legal rights of workers, or where workers
are forced to work in an environment where their health and safety are at
stake. Part of this proposal has already been accepted in the White Paper
(section 5.7.1 (ix))
Ø
We maintain that workers
should have the right to hold solidarity strikes as it exists in many
countries, or in Mauritius at the beginning of the 70’s before the IRA was
enacted, as well as to strike at national level in defense of their socio-economic
and class interest.
While the White Paper has proposed two minor
improvements compared to the IRA, on Representaional Status (now
Representational Status is associated with Registration) and on proposals to
establish clear criteria for recognition, the White Paper contains dangerous
proposals that undermines the right of workers and unions.
Ø
It maintains the arbitrary
power that were conferred to the IRC under the IRA to enquire into the
organisational capacity of the trade union in respect of its membership, etc…)
before granting recognition. These powers can be used arbitrarily by the
regime, as was the case in the 70’s.
Ø
It maintains the onus on the
Union to apply to the Commission for an order in cases where the employer refuses
recognition. For example in cases when a union has a given percentage of
members that satisfy the established criteria, it is still not the onus of the
employer to go to the Commission for non-recognition of the union.
Ø
Secondly the White Paper
proposals for establishing a 50% criteria for exclusive bargaining rights of a
trade union or a joint panel is totally unacceptable and undemocratic. With
this criteria workers will lose their democratic right to chose the union’s of
their choice - 75% would have been more democratic in this case.
Ø
The White Paper proposes a
major undemocratic shift in the process of dealing with recognition. All
recognition disputes will be dealt at the Tribunal level and not at Commission
level like the IRC. This means recognition orders will have a time frame of not
more than 3 years and is left to the discretion of the Commission.
Ø
The White Paper, in (section
5.4.6 (vi)), then proposes that “when a trade union or a group of a trade
unions has been recognised, by agreement
or by order of the Commission for Arbitration, no other claim for recognition
will be entertained before three years after the date of such agreement or
order.” This opens the door for
bosses to set up pro-employer unions and give recognition by agreement and thus
blocking the democratic rights of workers to choose the unions of their choice
in the process of collective bargaining.
Ø
Time frame has also clearly
been made in order to impose the concept of derecognition of unions. The White
Paper clearly states that the Commission can arbitrarily derecognise a union
if there has been any default from the trade union”. This means that a
permanent “epée de domocles” will be placed on the head of the union. In
section 5.4.14 of the White Paper on “Disclosure of Information”, it is stated
that during collective bargaining “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 Union”. This is totally unacceptable as at any time during negotiation
the employer can make a claim for the derocognition of a union on the basis of
subjective and arbitrary criteria.
Ø
The section on Recognition
when read in conjunction with section 5.8.1(c), where it is proposed that the
Conciliation and Mediation Service of the Ministry to provide for the
establishment of works council, is quite worrying. Such Works Councils can
easily be used by employers to either suppress union activities or curtail
unions bargaining power in dispute settlement and collective bargaining
process. It is not the duty of the State to establish Work Council. Its duty is
to ensure that appropriate legislative framework exists and democratic rights
of workers prevail.
Ø
While the White Paper has
laid emphasis on the over proliferation of unions, it has not proposed any
single measure to facilitate the workers will for amalgamation of unions.
If
follows from the above that we reject the proposals on the recognition that are
being proposed in the White Paper.
We maintain our proposals made in the January
Memorandum.
Ø
We believe that recognition
should be based ONLY on democratic criteria such as the rate of membership and
referendum. As a first stage the
present procedure adopted by the IRC to compare ID number should be maintained.
Ø
We object to any time frame
or arbitrary criteria be put to derecognition of a Trade Union. It is the workers of a given bargaining unit
who should have the fundamental right to decide which union/unions to negotiate on their behalf and when a union should be recognised or
derecognised.
While the procedures for Union’s registration has been facilitated, the arbitrary power of the Registrar to interfere and harass unions still persists. The White Paper is misleading the public when it states that it “reduces substantially the discretionary power of the Chief Registrar with respect to the administration of trade unions” (page 12 section 4 (a)).
Entire sections of the proposed White Paper still confer upon the Registrar more or less the same power as under the IRA.
For example in section 5.2.2(i) it is stated that the “Chief Registrar may at any time 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”
The White Paper furthermore proposes that the Registrar may use his arbitrary powers upon complaint from one member of the Union. (5.2.2 (iv)) We believe this to be totally undemocratic. The Registrar could have acted only upon a complaint received by the same percentage required by the rules of the union to call for a special general assembly. In most cases this is 10% of the membership.
The proposal to restrict membership to employee only and to eliminate the section of IRA (section 20), which provides that any person having been employed in a given trade for at least 18 months can be a member of a union is unacceptable. Presently sacked workers either by redundancy or dismissal can still a member of their union. It has been a common tradition for sacked or retired workers to remain a member of their union and even act a union cadre and negotiator.
We object to the proposals for negotiator/advisor be registered with the Registrar within 15 days, as this prerogative rests solely upon the democratic instances of union.
The White Paper while proclaiming the right of employees to join a trade union still restricts membership of union to members of the police force. In section 5.1.1 (vi) it even restricts this right to “naval” and “military” and “air forces” where these military sections do not exist in the Constitution of Mauritius.
The proposals by trade union movement to consider trade union delegates as human rights defenders have been rejected without any valid arguments. Furthermore our proposal for employers to provide adequate facilities for union’s representatives to defend the Constitutional rights of members has not been taken into consideration. For example what is being proposed in relation to time off facilities in section 5.4.15 (i) is still restrictive as it is left to the discretion of the employer and not as a matter of right. Still worse, in section 5.1.10, which intends to protect workers against discrimination and victimization, it now states that “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 rates”. This in fact provides a blank cheque to employers to get rid of trade union representatives, specially ring leaders. In so doing it opens the gates for employers to destabilize trade unions on a permanent basis. Union representatives should be protected and not subject to any form of victimization whatsoever.
As regards to disclosure of information to trade unions the White Paper still protect the employers interest when it proposes that “an employer should notify the trade union in writing if any information is confidential” and further adds that “an employer should NOT be required to disclose information” for example “that is privileged”.
While the White Paper proposes some minor improvements on the question of Returns submissions, registration and disposal of asset, it fundamentally does not depart from the repressive philosophy of the IRA and in fact still violates provision of the Convention 87. The trade union movement cannot accept what is being proposed in the White Paper on this issue.
We reject the underlying philosophy and the
core proposals of the White Paper.
Government has incorporated the Lim Report and
the proposals of the bosses in its White Paper. It derails completely minimal
wages and work conditions, negates the fundamental right of workers to strike,
as well as put into question the very existence of strong democratic and
independent unions. We consider the presentation of such proposals as a lack of
respect and an insult towards all those people who have bravely struggled, have
been victimised or even fallen in the struggle against IRA. Working people
deserve more respect than that after 30 years of struggle against the IRA.
The Trade Union Common Platform opines that the
White Paper in its present form cannot be codified and form the basis of
a new industrials relation legislation. It departs from and betrays most of the
demands and struggle of workers and democratic movement of the country for the
last 30 years.
We believe that the White Paper should be completely revisited and be subject to
national debate before any new legislation in replacement of the IRA is brought
in the National Assembly.
We would like once again to stress that our
rejection of the underlying philosophy and core proposals of the White Paper cannot
be construed as an acceptance of the existing IRA. Our struggle is for a
democratic industrial relations legislation to replace the IRA. The present
White Paper does not meet the expectations of the trade union movement and the
working class, as it does not propose a new democratic industrial relations
environment.
Should the government persist in enacting a legislation based on the White Paper in its present form, without taking into consideration the trade union movement fundamental objections and proposals, the trade union movement will mobilise workers and citizens of the country to wage appropriate militant struggle.
17th December 2004