LALIT's Comments on the Employment Relations Bill
03.09.2007
This Bill which aims to replace the Industrial Relations Act of 1973 has somehow integrated all the worst aspects of the Prof. Lim Report, the TULRA/NPPC Bill, and ex-Minister S.Soodhun's White Paper.
The ultra-liberal agenda of the Social Alliance regime and the capitalist class becomes all too obvious when we refer to the guiding "Principles" included in the Section called "General" of the Employment Relations Tribunal (to replace the Permanent Arbitration Tribunal), the Commission for Conciliation and Mediation (to replace the Industrial Relations Commission), and the National Remuneration Board. These are the three institutions which will be responsible for managing industrial relations and for determining wages and work conditions. These guiding "Principles" include:
- the need for Mauritius to maintain a favourable balance of trade and balance of payments;
- the need to increase the rate of economic growth and to protect employment and to provide greater employment opportunities;
- the need to preserve and promote the competitive position of local products in overseas market;
- the capacity to pay of enterprises;
- the need to develop schemes for payment by results and, as far as possible, to relate increased remuneration to increased labour productivity;
amongst other things.
We will now analyze the proposed legislation under 9 headings:
1. POWERS OF THE REGISTRAR:
Fortunately the prerogative of the Registrar to register new trade unions and to register amendments to the rules of existing ones are now, according to the Bill, given reasonable time limits: 30 days to register, and 21 days to register amendments. But the overall paternalistic role of the Registrar remains intact, in the sense that members are not given additional means and powers to administrate and control their unions.
2. CONCESSIONS TO THE TRADE UNION BUREAUCRACIES:
The union negotiator, who is not necessarily a union member, now has official status and is recognized by the Registrar and the Ministry. Like other union officers he has the right to go into the work site.
For years now the bureaucracies of the larger unions and federations have claimed that the IRA made disposal of assets too complicated. The ERBill allows immovable property to be disposed of with the approval of a majority of members present at a General Assembly; and movable property can be disposed of by decision of the executive committee.
Similarly there has been constant protest from the leadership of some sections of the trade union movement that the possibility for 7 workers to create a new union causes unnecessary proliferation and a weakening of the movement: they have asked the figure to be increased, although this would represent a curtailment of the acquired rights of workers to form trade unions, especially important for small and medium-sized enterprises. The proposed legislation takes the figure to 30, which will please the bureaucracies without however solving the problem of the fragmentation of the work force, which is certainly not an administrative problem. The presently registered unions that have less than the required 30 members, will have 2 years to ask for re-registration, if they can bring up their membership to at least 30. Otherwise they will be de-registered.
3. RECOGNITIONS OF TRADE UNIONS:
The Tribunal is given the task of resolving recognition problems, by secret ballot if necessary, in case the employer refuses to recognise a union. The union gets its recognition if over 30 percent of the Bargaining Unit supports it, gets sole recognition if supported by over 50 percent. If several unions have between 30 and 50 percent, then a Joint Negotiating Panel is set up.
But the employer still retains the privilege to recognise "sell out unions", even if they have less than 30 percent support.
Check-off facilities appear to be granted to all registered unions, regardless of whether they are recognised or not, and the delay for a worker to stop the check-off on his wages has stayed at 6 months, another concession to the bureaucracy.
4. AGENCY SHOP ORDER:
All the sections relating to the agency shop order, by which a union can get a contribution from all workers in its Bargaining Unit, have stayed more or less the same as in the IRA. It is rather surprising that more unions in the past have not made use of this to strengthen themselves financially. One again it is the Tribunal that will organize a ballot to determine whether over 60 percent of workers in the bargaining unit will support the Agency Shop Order.
5. COLLECTIVE AGREEMENT:
A Collective Agreement between a recognised union and the Employer is binding on all workers in the bargaining unit, and it becomes the equivalent to the terms of the contract of employment. But the problem is that the Agreement (and therefore the terms of the contract of employment) can be modified by the Tribunal, at the employer's request. We can easily guess that the request from the employer will be for a downward adjustment of wages and conditions, on the pretext of decreasing profit levels.
Some employers in the same industry may apply to the Tribunal for exemption from the Collective Agreement, for the same reason as above.
6. LABOUR DISPUTES:
Perhaps it is in the way Labour Disputes are dealt with that the ERBill exposes itself as the business and investor-friendly legislation that it is.
The Dispute can either be jointly referred to the Tribunal, or to an Arbitrator for a binding Award, or it can be declared to the PS of the Ministry, known for this purpose as The Supervising Officer. But the Trade Dispute is only acceptable to the Ministry if there has been a full 90 days of "meaningful negotiations", and if we refer to the Code of Practice for an indication as to what constitutes "meaningful", we find that it will not require much effort for the Ministry to declare the negotiations as "in bad faith", thus making the dispute unacceptable.
At the Ministry, 20 days or more if the union agrees, will be spent with the negotiations continuing in front of the Ministry Conciliatory Service. If there is agreement, the terms are registered at the Tribunal and becomes a Collective Agreement.
In case there is no agreement, the PS will advise a joint reference to the voluntary arbitration mechanisms, or failing that, the PS will refer the Dispute to the Commission for "investigation and promotion of settlement". The Commission can take 30 days, or more if the union agrees, to conciliate, mediate, and make recommendations. If there is still no agreement, the Commission reports this to the PS of the Ministry who may refer the dispute to the Tribunal for an award within 90 days, or the Union can go ahead and prepare for a ballot for deciding strike action.
For the Fire and Prison Services, the PS will refer the Trade Dispute to the Tribunal straightaway for an Award within 30 days, as soon as he receives notice of the dispute.
Once there has been some form of determination for the dispute, there cannot be another dispute on the same issue for the following 36 months.
7. STRIKE:
Before the famous secret ballot for strike action is taken, there will obligatorily have been at least 140 days (90 days of negotiations + 20 for conciliation + 30 for mediation). The Secret Ballot has to be supervised by the Commission, but the legislation is totally silent as to the time limits for this stage. Strike action can go ahead if there is "an absolute majority of the votes of the workers concerned by the dispute". Are the various managers, supervisors, accountants, security officers, concerned by the dispute, or will all the workers in the bargaining unit vote, regardless of what union they are members of ?
The idea of individual workers voting secretly whether they want to participate in a concerted stoppage of work is utterly ridiculous, and has been rejected by union movements all over the world.
Should all these impossible hurdles have been overcome, the Union still has to give 10 days notice to the Minister himself, this time. So we now have 150 days or more, 5 months!
There are still some other limitations to the Right to Strike: if all procedures have not been followed, if it is less than 3 years after previous Collective Agreement or Award has become effective, for workers in the Prisons and Fire Services, and if Minimum Service has not been organised jointly by the Union and the Employer, in the following 14 work sectors: Water supply, Electricity, Civil Aviation and Airport, Air Traffic Control, Telephone, Transport of passengers and goods, Port, Customs, Refuse Disposal, Hospital, Health, Education, Radio/TV, Hotel Services. In other words the strike action must not affect the normal functioning of these sectors.
It is also quite significant that the legislation does not provide for any resolution mechanism after a lawful strike action has commenced. Clearly lawful strikes are not meant to happen. A "work to rule" is also defined as strike action, and subjected to all the same constraints.
8. TRIBUNAL COMMISSION AND BOARD:
The Permanent Arbitration Tribunal under the IRA will simply become the Employment Relations Tribunal, The Industrial Relations Commission of today will become the Commission for Conciliation and Mediation, and only the National Remuneration Board will keep its old name, and this is not innocent. The Legislation wants to create the illusion that the minimal wages and conditions of Remuneration Orders (Awards), will continue just the same. But in reality, the Minister will stop referring to the NRB, except for sectors where collective agreements are impossible in practice. In most work sectors, Collective Agreements will supersede RO's and Awards, and the latter will simply fade away, and there will not be real minimum wages and conditions for new workers.
9. POLITICAL INTERVENTION:
The Tribunal, Commission, and Board will be staffed by nominees of the Minister, and we all know what that means, in terms of independence and integrity.
It will be only the Minister who will arbitrarily choose which work sectors to refer to the NRB for revision.
The 10 day notice before a strike has to be given to the Minister, whereas the rest of the legislation is aimed at allowing the Minister to hide in a jungle of administrative and bureaucratic bodies.
Whenever cases are in front of the Tribunal, Commission, or NRB, the Attorney General can intervene, without becoming a party to the case, and even if the case concerns workers in the private sector.
Finally, the Prime Minister can intervene if a strike action is, according to him, causing an "Acute National Crisis". He can go to the Tribunal and ask for minimum service to be established and maintained, or he can go to the Supreme Court and ask for an injunction to put an end to a strike that was perfectly legal. The dispute then goes to the Tribunal for an award within 30 days.
The actual Right to Strike is no more present in this proposed legislation than it is in the IRA: previously it was a Ministerial decision which made it illegal, in the proposed legislation, it will be the administrative hurdles over 5 months or more.
RS, 3 Sep. 07
