LALIT recently received a letter from the Port Louis Harbour and Docks Workers’ union (PLHDWU) enclosing a copy of the Commission for Conciliation and Mediation (CCM) Report on industrial relations in the Port. (We publish the whole report below this article.)
The Report was made after a request from the Minister of Labour (18 May, 2015), and was published on 11 August this year. The Report is damning of both the management of Cargo Handing Corporation Limited and another union, the Port Louis Maritime Employees Association (PLMEA), which was, in fact, being specifically favoured by the bosses, at the expense of the other unions present in the Port.
What unions are there in the Port?
Before 2011, there were 4 different unions representing port workers: PLHDU, MTPEU, SAMSEA and DAWSEA. Amongst the four, it was the PLHDWU, affiliated until 5 years ago to the GWF that had participated in the heroic working class struggles in 1971 and 1979. The MTPEU was set up after a split in the GWF precipitated by Jack Bizlall and which produced the FPU.
In 2011, after the PLHDWU (and SILU, the sugar labourers’ union) left the GWF, following a series of awful intrigues that ended up with Subron and others in Rezistans ek Alternativ taking control of the leadership of the GWF, many port workers, opposed to the union getting close to the PMSD via Rama Valayden, decided to set up a new union, the PLMEA, with the help of Subron and others in Rezistans. The PLMEA then affiliated with the GWF, and Subron acted as their Technical Advisor and Negotiator.
At the beginning of 2013, all 5 unions in the Port that had recognition were demanding salary revision and other work condition improvements, and called for negotiations with the bosses.
The bosses did not open negotiations. At the end of January, the PLMEA declared a trade dispute. Despite the other unions demanding their right to participate in the negotiations, the bosses chose to negotiate only with Subron and the PLMEA: all the other 4 unions, all of which had recognition, were simply excluded from negotiations. The reason for this is known to no-one but the bosses and Subron.
On 23 July 2013, the Port Bosses and the PLMEA (Subron) signed an agreement behind the backs of the other 4 unions who had recognition. At once, Subron and the PLMEA launched a campaign claiming “sole recognition”. Given that the bosses were already acting as if the PLMEA had “sole recognition” and given that the bosses were acting so as to marginalize the other 4 unions, it was hardly surprising when on 7 March, 2014, the Industrial Relations Tribunal granted the PLMEA “sole recognition”, after a referendum amongst port workers. At once the PLMEA then called for the other 4 unions’ recognition to be withdrawn, and from March 2014, the bosses negotiated only with the PLMEA.
Favouritism and promotion
The PLMEA and their negotiator Subron then entered an agreement with the Bosses on a new way of effecting transfers and promotion that gave an advantage to members of the PLMEA union, once again at the expense of members of the other unions. This kind of discrimination created both anomalies and frustration. But it was the PLMEA and its leaders who benefitted from this kind of favouritism, and this kind of shenanigans only served to reinforce the bureaucracy in the PLMEA.
But the opportunism and lack of principles in this kind of strategy and in these kinds of trade union tactics, while appearing to give “rezilta lor rezilta” in the short run, using the words the PMSD uses to flatter itself, but even in the medium term, it collapses. This kind of trade union strategy and activity brought about the explosion of the GWF, as it was, and now the PLMEA is a new victim of the very opportunism that, for a long time, LALIT has been exposing and denouncing. It is this kind of opportunism and lack of principle in trade union work that, when we in LALIT criticized it, led to the resignation of Subron from the party in 2004.
At the beginning of 2016, some leaders of the PLMEA, having thought that the bosses would give in to their demands as had become usual, and having defied the bosses on the question of work hours at the end of 2015, found the President of the union suspended, and over his re-integration into work, there was a conflict between the President and Negotiator Subron: finally both resigned from their posts.
The tragedy is that this leaves the union movement in the Port in a sorry state at a key moment. There is the grave danger hanging over the heads of all Port workers: the threat of privatization. The Government, the Private Sector and the Port bosses could not have dreamed of a better situation, where workers now risk not having the organizational capacity to stand up against privatisation and a deterioration in work conditions.
Enquiry Report of the Commission on the State of Industrial Relations at Cargo Handling Corporation Ltd (CHCL)
Main Findings and Policy Directions Introduction
On 18 May 2015, the Hon Minister of Labour, Industrial Relations, Employment and Training requested the acting President of the Commission for Conciliation and Mediation to enquire and report into the state of industrial relations at Cargo Handling Corporation Ltd (CHCL) and on whether CHCL has directly or indirectly discriminated against some of its employees in respect of their trade union membership or otherwise. The Vice President of the Commission submitted her report on 9 March 2016.
The report is very critical of the IR [industrial relations] and HR [human resources] policies and practices of CHCL. It is established that:
(a) CHCL was engaged in unfair labour practice and has failed to carry out good faith bargaining when it decided to exclude from the bargaining process the other trade unions which had negotiating rights and instead negotiated and signed a collective agreement with only the Port Louis Maritime Employees Association (PLMEA) which did not have sole recognition at that time.
(b) The criteria for promotion was not transparent enough and that the new promotional route agreed between CHCL and PLMEA created conditions for abuse by CHCL which could easily favour some workers, by transferring them in department where it would be easier for management to promote any worker of its choice.
(c) The new promotion policy has in some cases, discriminated against employees, who are members of other unions.
(d) The PLMEA has also be (sic) considered to have engaged in unfair labour practice in as much as the promotional route agreed with CHCL was contrary to the basic principle of equal opportunity and was objectively to the disadvantage of the members of the other unions.
The Commission has highlighted some pertinent IR issues, such as good faith bargaining, unfair labour practice, union rivalry, formation of JNP and procedure agreement which need to be addressed so as to provide a more adequate framework to promote the development of Collective bargaining in an orderly manner. In the light of the report of the Commission:
(a) Some policy directions are being proposed for consideration in the review of the Employment Relations Act.
(b) It is proposed that CHCL be informed of all the anomalies raised in the report of the Commission and be requested to take remedial action in a determinate time frame.
(c) The promotion policy, in particular, need to be reviewed in consultation with all recognised trade unions and the cases of all those who have been unduly disadvantaged by the new promotional route should be reconsidered.
(d) More generally, CHCL should be required to review its IR policies and practices and the Ministry may assist CHCL to develop a new model of IR policies -to pave the way for a more harmonious workplace relations.
Questions now arises (sic) as to whether the Commission should have participated in the bargaining process and endorsed a collective agreement tainted by unfair labour practices. It is, therefore, proposed that the role of the Commission in dispute resolution with a view of a collective agreement be also addressed in the labour review exercise, especially when bargaining is underpinned by unfair practices.
1. State of Industrial Relations: Findings of the Commission
a) Four Trade unions, namely the PLHDWU, MTPEU, SAMSEA and DAWEA represented workers of the same bargaining unit prior to 2011.
b) In 2011, a 5th trade union namely, the PLMEA was given recognition by the ERT.
c) Since 1997, when the trade unions were not satisfied with the report on Salary Restructuring, the points on which there was no agreement were referred to private arbitration.
d) In 2013, all the five trade unions asked for negotiation and no trade union had sole recognition at that time.
e) Management failed to meet the demand of the unions for negotiation.
f) On 29.01.13, following failure on the part of Management to respond to the PLMEA’s demand for negotiation, the union reported a dispute to the Commission on issues pertaining to salary review, a new organization structure, upgrading of conditions of employment.
g) On 25 March 2013, the MTPEU wrote to Management of CHCL requesting that negotiation with the PLMEA be extended to the other recognized unions.
h) Although the PLMEA was not recognized as the sole bargaining agent at that time, the other unions were excluded from participating in the negotiation meetings.
i) In May 2013, the BCA Consulting Ltd submitted a report, commissioned by Management on salary review.
j) The trade unions rejected the report and did not submit their reservations and grievances to BCA Consulting Ltd for subsequent consideration in an Errors and Anomalies Report as it was the case in the last salary restructuring exercise in 2008.
k) On 23 July 2013, Management of CHCL and the PLMEA signed an agreement before the Commission.
1) On 07 March 2014, the ERT awarded that the PLMEA be recognized as the sole bargaining agent in the bargaining unit comprising manual workers and staff employees.
m) The PLMEA·considered that since it was granted sole recognition, the other unions in the bargaining unit should be de-recognized.
n) As from March 2014, Management negotiated solely with the PLMEA.
o) No procedure agreement exists.
1.2 Observations of the Commission
(a) The unions failed to submit their reservations and grievances to the BCA Consulting Ltd for consideration in an Errors and Anomalies Report.
(b) unions and Management have not developed the necessary conditions conducive to a harmonious employment relations climate.
(c) There is no spirit of openness, trust and understanding between unions and Management.
(d) unions and Management are more in a confrontational culture than a win-win approach.
(e) There is no balance of power between the unions and management and they are not on the same footing.
(f) The multiplicity of unions in the same bargaining unit gives rise to union rivalry and affects the bargaining process. Management thus considered that it was difficult to bargain with the unions and to sign a procedure agreement.
(g) Management failed to maintain effective arrangements for negotiation, consultation, communication and for settling of disputes.
(h) Management failed to carry out good faith bargaining by failing to meet the unions demand for negotiation.
(i) Management was engaged in unfair labour practice by negotiating only with the PLMEA, which did not have sole recognition at that time, and excluded the other 4 unions, the more so that the recognition of the PLMEA did not imply the loss of the negotiating rights of the existing unions.
(j) The unions failed to constitute a JNP as it was the case in the past.
(k) Management was not proactive and responsible enough and did not encourage the signing of a JNP.
(l) The signing of a procedure agreement could have prevented union rivalry.
1.3 Proposed Policy Directions on the state of IR
1. The following considerations need to be given in the course of the review of the legislation:
(a) To put a statutory obligation on an employer to consult all recognised trade unions, whether a union has sole recognition or not on such issues as restructuring, work reorganization and promotion policies.
(b) To provide explicitly in the legislation that sole recognition granted to a union does not entail the de-recognition of other unions with a view to discourage close shop agreement which is contrary to the fundamental principle of freedom of choice and individual liberty. The minority unions, should not, however, enjoy negotiating rights, unless the majority decides to enlist them in the negotiating process.
(c) To provide that:
(i) where no union has sole recognition and the unions in the bargaining unit cannot agree on the formation of a JNP, any union may apply to the ERT for the holding of a secret ballot for workers to choose the union(s) to conduct collective bargaining on their behalf in the bargaining unit; or
(ii) where there is already a recognised union with no exclusive bargaining right, the other unions applying for recognition must agree that they will cooperate to secure and maintain a stable bargaining arrangements and form a JNP to enter a single table bargaining arrangement.
(d) To review the provisions regarding signing of the procedure agreement, so as to make it more effective and not to be a stumbling block for the signature of a collective agreement.
(e) To place a duty of fair representation on the union having exclusive negotiating rights so that it does not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any employee irrespective of his union membership.
(f) To provide explicitly that a salary report commissioned by an employer to be subject to collective bargaining before its implementation so as to ensure that both employers and workers have an equal voice in negotiations and that the outcome will be fair and reasonable.
(g) Where there is more than one union and an employer engages in unfair labour practice and negotiates with a union of his choice, the agreement to be null and void.
2. Management to review its IR policies and practices. The Ministry may assist Management to develop IR Best Practices with a view to adopting a more productive relationship with workers and unions .
2. Discrimination against employing some employees on account of
their trade union membership: Findings of the Commission
(a) The four other unions felt that they were discriminated when management negotiated the collective agreement in 2013, without including them in the negotiation.
(b) The four unions felt that Management discriminated some employees because of their union membership although same was denied by Management.
(c) The agreement between the PLMEA and Management brought a lot of changes in the structure, grades and departments and changed the promotional route.
2.2 Observations of the Commission
(a) The promotion exercise of those assigned higher duties, but who did not possess the minimum qualification as required by the SRC Report 2008, was only implemented following the recommendation of the Job Appeal Committee Report.
(b) The appointment of 16 Terminal Assistant in 2012 could not be backdated in view of the recommendation of the staff committee and the staff committee decision.
(c) There are cases where qualifications were obtained following training and certification and not on seniority.
(d) Seniority of some employees have been disturbed by the requirements of specific qualification following SRC Report 2008, and creation of new promotional routes in line with the PLMEA agreement of 2013 and due to promotion by terminal/department.
(e) New requirements for promotion placed some seniors to a disadvantage position with their juniors who were promoted before them.
(f) Selection for training with a view of promotion was not done in a fair and equitable manner and excluded the most senior employees.
(g) An employee was not promoted as Accounts Clerk because she did not hold the required qualifications.
(h)A new position of Foreman/Winchman was created. The workers appointed who were appointed as Foremen were paid two levels higher than the foremen who previously supervised the Winchmen and who performed the duties of foreman.
(i) Management did not adjust the wages of these foremen to mitigate the negative impact of the higher wages granted to the newly appointed foremen winchmen.
(j) Some employees in specific categories and posted on specific sites were penalized as they were be (sic) members of the other unions.
(k) A member of PLMEA who joined the logistics department after a worker who was a member of another union with longer length of service, was promoted before the latter on the basis of his posting terminal wise.
(1) In some eases of promotion, following the creation of new posts within an existing grade structure, workers of lower grades were frustrated as the promoted workers were paid higher wages and continued to perform the same duties.as per manning agreement signed by the PLMEA.
(m) The new conditions attached for promotion of posts involving less skills as Shore Workers, changed the normal seniority criteria and was to the disadvantage of workers.
(n) The creation of new post within the same structure was not matched with upgrading of salary for the new post as in the case of the HRE, who draws the same wages as the HRO.
(o) The promotion policy according to terminals and departments failed to provide equal opportunities to all employee and opened the way for abuses by management where the scope to be promoted can either be delayed or facilitated, especially where the employees of the same grade are employed in different departments or terminals.
(p)There is an absence of transparency on the promotional policy and conditions attached the seniority criteria.
(q) Management has failed to address the anomalies arising out of the new promotional policy in such cases and to adjust wages where appropriate.
(r) Seniority criteria should have been maintained for less skilled jobs such as Shore Workers.
2.3 Proposed Policy Directions on HR and promotion issues
(a) Management to be informed of the issues and anomalies raised in the report of the Commission and be required to take remedial action within a determinate time-frame.
(b) Management should consult all unions when addressing the issues and anomalies contained in the report of the Commission,
(c) Management to develop a clear and comprehensive promotional policy with explicit criteria in consultation with all unions and set up a corresponding grievance procedure.
(d) There should be transparency where other criteria such as conduct, attendance and performance, are taken into consideration and Management should act with consistency and objectivity to minimize risk of discrimination.
(e) All workers should be made aware of these policies.
(f) The HR department to be revamped to ensure good communication, transparency and fairness in its dealing with unions and workers.
11 August 2016