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LALIT comments on government White Paper on Industrial Relations

30.11.2004


A few months before the National Assembly is due to be dissolved, the MMM-MSM Regime has finally produced a White Paper outlining its proposals for a new legislation to replace the Industrial Relations Act of 1973. The Government has declared that all interested parties have up to the end of December 2004 to comment on and make counter proposals to the content of the White Paper. According to the Prime Minister, the actual legislation to replace the IRA should be ready in March 2005, along with other Bills relating to electoral reforms, financing of political parties, Muslim Personal Law, etc.
We think that it is important to analyze the probable timetable for the few months remaining before the dissolution of the National Assembly, to assess the real agenda of Government relating to the replacement of the IRA by a new piece of legislation. By mid-December Writs will be issued for the replacement by-election in Constituency No. 3 which no doubt will be scheduled for end April 2005, but which will probably not take place at all. In January 2005, there will be the UN Small Islands Developing States Conference; the National Assembly will resume on 8th February 2005, followed by the preparations for the 12th March Independence Celebrations, closely followed by the pre-budget preparations and the presentation of the Budget itself in April. If the by-election in No.3 is to be avoided, the National Assembly will need to be dissolved before the end of April. Can we really imagine the Government finding a slot for the replacement of the IRA within that timetable, or will the declared intention fit more easily into the MMM-MSM General Election campaign propaganda, while the contents of the White Paper acquire some fake consensus and provides the next government with a sort of mandate for the kind of anti-worker legislation that the White Paper represents?
It is equally important to understand the general political and economic context in which the MMM-MSM have come forward with their White Paper: rising unemployment as EPZ factories close, and the Sugar Industry accelerating its re-structuring plans; the tourist industry stagnating in spite of a plethora of new hotels. In general the present Government has exposed its commitment to a policy of privatization through the Mauritius Revenue Authority Act and the Public-Private Partnership Act, with all the deregulation that this policy entails. The present context is not one that is favorable to the class interests of workers and poorer sections of the population; in fact the working class has not been in such difficulties for a long time. It is precisely in this context that the ruling classes have been agitating for a generalized deregulation of employment and industrial relations: the bosses, together with the IMF and World Bank, have been claiming for some time now that there are too many ‘rigidities' in the labor legislation.
Labor legislation is constantly in a dialectic relationship with the changing state of the class struggle: legislation both reflects and determines the balance of class forces. In 1973, when the IRA was voted in by the Labor-PMSD-CAM regime, it was in the context of the worst period of repression against the working class and the law has since continued to weaken workers and their trade unions relative to the bosses.
So in what way do the government proposals contained in the White Paper fit into this general schema?

Proposals in the White Paper

The title given to the new legislation is quite significant: ‘Employment and Labor Relations Bill': this is very much in line with the recent government policy of having a single ministry for both Employment and Industrial Relations. The trade union movement has already rightly expressed its concern at having the same Minister in charge of both employment and industrial relations. Certain detailed proposals in the White Paper confirm that the concerns expressed by the trade union movement are more than justified: the Minister is given arbitrary powers of intervention in the process of dispute resolution by imposing compulsory arbitration and making all strike action illegal when ‘the scope of employment (is) curtailed' (5.6.3.5); and again to lower wages and worsen work conditions that are already established by Remuneration Orders: ‘ a collective agreement should not contain provisions, which are less favourable than minimum wages prescribed in a (Remuneration Order) Regulations, except if is for reasons pertaining to the protection of employment…'(5.5.3(iii)
In general the White Paper moves away from the political and state intervention for the determination of wages and work conditions, and more towards work sector- and enterprise-based collective agreements; but this proposed transformation is done without providing the trade unions with the necessary tools to defend even the acquired rights of workers, let alone the tools to struggle for more rights. Taken globally, the White Paper reflects almost slavishly the preoccupations of the bosses who can only see a way out of the economic crisis by making workers bear the whole brunt of what the White Paper calls ‘numerous external threats'.
This is how the White Paper summarizes the ‘Proposals of Employers' in paragraph 3.7:
‘ The employers' organizations have laid emphasis on voluntarism, flexibility and adaptability, the promotion of collective bargaining, the introduction of concession bargaining, the independent functioning of institutions, the promotion of sound human resource policies and practices, the review of the role of the NRB and setting up of a national wages council, among others.' When the White Paper is analysed, we find that most of the employers' preoccupations have been favorably considered.
The fundamental proposals contained in the joint document submitted by the whole trade union movement (a document based to a large extent on the document prepared by the ‘Fron Pu Demokrasi' in 1989 prior to the setting up of the Garrioch Law Review Committee) have on the whole been brushed aside by the technicians of the Ministry of Labour, Industrial Relations and Employment when they have drafted the present White Paper. It might be historically interesting to point out here that the MMM contributed in the preparation of a ‘Fron Pu Demokrasi' document on the POA in 1989, but withdrew itself when it came to working on the IRA document.
The White Paper does however take up some of the minor points in the Trade Union document, but significantly, they are mainly points that are of interest to the bureaucracy, rather than in the interest of workers themselves.
How does the White Paper deal with the main areas of concern for workers and their trade unions? We have chosen to gather those areas of concern under a number of headings: 1. Registration and membership; 2. Administration of unions and the Role of the Registrar; 3. Representational Status and Recognition procedures; 4. Industrial disputes; 5. The Right to strike; 6. Industrial Relations Institutions.

Registration and membership.

Although the minimum number of members to form a new trade union is not specifically mentioned in the Trade Union document, there is quite widespread belief amongst the bureaucracy that the solution to an ‘over-proliferation' of trade unions is to curtail the right of workers to form a new trade union by imposing a fairly high minimum number of members. The White Paper has used this erroneous belief to impose a minimum of 30 members for the formation of a new trade union, together with a suggestion that all existing unions with less than 30 members will be deregistered after a ‘moratorium period of 24 months to adjust to the above provisions' (5.3.1 (iv)). This proposition is particularly dangerous in the present context where more and more workers ( 220,000 according to Para 2.10 of the White Paper itself) are active in the small enterprises of the ‘informal economy', small enterprises which very often employ less than 30 workers.
The White Paper does make proposals to streamline and speed up registration procedures, attempts to give some status to union negotiator/adviser, specifically opens membership of unions to migrant workers, employees of the Fire Services and Prison Department (not the Police force), but at the same time seems to restrict that membership to ‘employees' only, without any explicit provision for workers who have in the past been employees in an undertaking or trade and who may have retired or been sacked (a provision which even the IRA makes).

2. Administration of unions and the role of the Registrar

Over the years the trade unions have criticised the powers that the IRA gives to the Registrar as being ‘repressive, discriminatory and at best paternalistic'. It is certainly true that the IRA gives to the Registrar the sort of powers to control the administration of trade unions that should really rest with the democratic structures of the unions themselves.
The White Paper addresses some of the concerns of trade unions relating to the role of the Registrar, such as unnecessary delays in the registration of new trade unions. But on the whole the proposals in the White Paper maintain the arbitrary powers that the Registrar has to selectively harass trade unions:
‘ The Chief Registrar may at any time, if he thinks there is good reason to do so, give directions… to produce such documents…' (5.2.2(1).
‘The Chief Registrar may investigate and institute prosecution on receipt of a complaint from a union member or where he has reasonable grounds to believe…(5.2.2(iv)
‘ Any person who fails to comply with any directions made by the Chief Registrar shall commit an offence and shall be liable to a fine (5.2.2(vii).
The White Paper certainly makes no proposal that would go in the direction of strengthening the democratic control that should be exerted by the membership of a union on its elected leadership. And this is what is really necessary. This is precisely what would make ‘over proliferation' unnecessary.
But the proposal that unions can dispose of their assets through a decision of their Executive Committee (for movable assets) and a majority decision of members present and voting at a General Assembly (for immovable assets), is certainly an improvement on the IRA provision which required a majority decision of all members of the union, not just those present at the General Assembly. This proposal will certainly satisfy the leadership of those large unions that have, over the years, accumulated quite substantial movable and immovable assets.

3. Representational Status and Recognition Procedures

The proposal in the White Paper that any trade union, once it's registered, has the automatic right to defend the legal rights of its members is certainly a great improvement on the IRA provision that required the union to have at least 100 members, and to go through the lengthy and costly procedures of the Industrial Court, if the employer refuses to grant Representational Status. Representational Status, although it does not entitle the union to enter into collective bargaining, at least allows a new union to defend itself and its members against pressures from the employer. The White Paper also proposes that a new union with Representational Status should be entitled to enter into a check-off agreement with the employer; but at the same time the White Paper maintains that the period of notice for discontinuance of deduction of dues from the employee's pay should remain 6 months: something in the IRA that democratic unions have been denouncing for years, but that certain bureaucracies have wrongfully defended. It is unacceptable that a worker's contribution to a union should continue for 6 months after he has left the union.
The White Paper has attempted to define in numerical terms the criteria for recognition at enterprise or industry/sectoral levels, in case there is no agreement between the employer and the trade union(s); it also recommends the organization of ballots to determine the support that the union(s) has in the bargaining unit. But the proposal that in cases where there is more than one union, any union which gets over 50% of the votes in the bargaining unit should get exclusive negotiating rights (5.4.3(iiib) is totally ridiculous. The percentage should be much higher: between 2/3 and ¾, otherwise nearly half of the workers in the bargaining unit will lose the right to be represented by a union of their choice.
The procedures proposed by the White Paper for determining recognition contain absolutely no dynamic that would tend towards less fragmentation of the work-force at enterprise or industry level: there is no proposition that would allow workers concerned to impose through a referendum, some form of amalgamation between unions in the same work sector or enterprise.
There are 3 proposals in the White Paper that are potentially very dangerous for the trade union movement: (1) before granting recognition, the Commission for Arbitration may make the same arbitrary enquiries regarding organisational capacity, effectiveness as a bargaining agent, past experience, etc. (5.4.6(i) as the IRA allows the IRC to make in an selective and arbitrary way, and which in the past has caused ‘political' repression against some unions; (2) after a union is recognised either by agreement or by order of the Commission for Arbitration, there can be no other claim for recognition for the next three years (5.4.6(vi), a provision that could easily be abused by the employer encouraging the setting up of ‘business friendly' unions, then quickly granting recognition by agreement, and thus blocking the development of proper democratic unions under the control of workers and defending their interests; (3) But perhaps the worst proposition is the new concept of ‘de-recognition' that Para 5.4.7 introduces; the Commission for Arbitration will have the arbitrary power to revoke the recognition of a trade union if ‘there has been any default from the trade union that justifies its revocation'. This ‘derecognition' procedure exposes all its mortal danger when it is seen in the light of Para. 5.4.13,dealing with ‘Disclosure of Information' 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 trade union'. We will deal in more detail with the concept of ‘bad faith' later, but it is clearly the intention of the White Paper to give the employer the option of claiming for ‘derecognition' on the basis of such subjective and arbitrary criteria as ‘negotiating in bad faith'.


Industrial Disputes

In the final analysis, any proposed ‘new legal framework for industrial relations' must be judged on its recommendations as regards dispute settlement: this is where the relationship of class forces is established. All other items, however important they may seem, are fairly marginal. So what does the White Paper propose?
For a start the White Paper excludes legal rights from the definition of Industrial Dispute (5.6.1(i); in other words, where an employer is not respecting existing legislation, the only recourse for workers is to lodge a lengthy case before the Industrial Court, with all its legal expenses and postponements. Workers in the Civil Service and their unions will not be entitled to declare a Trade Dispute once the have signed the PRB option form (5.6.1(iv). These limitations to the right to declare a trade dispute are obviously unacceptable.
As mentioned earlier, the White Paper indicates clearly that wages and work conditions will mainly be determined at enterprise or industry/sectoral levels by collective bargaining and collective agreements, rather than Awards at national level as is presently the case. But at the same time, the White Paper introduces the concept of ‘Concession Bargaining', whereby Collective Agreements may contain work conditions, and even pay levels, that are less favorable than what is at present in Awards (5.3.3).
So how will Collective Agreements be reached?
Direct negotiations between employers and trade unions.
Should negotiations fail, both parties may jointly opt for voluntary conciliation or arbitration by any person or body (the Commission for Arbitration will produce an Award within 3 months)
Either the employer or the trade union may report the dispute to the Minister.
The Minister can decide that ‘negotiation has not been conducted in good faith', and recommend further conciliation/mediation.
The ministry may offer its own ‘Conciliation and Mediation Service' to try and reach an agreement. This procedure shall be completed within 21 days (or more if both parties agree).
If after the period of ‘conciliation and mediation' at the Ministry, there is still no agreement, the Minister is informed within 7 days, and he then refers the dispute to the ‘Commission for Conciliation and Mediation' (a supposedly independent body all of whose members are nominated by the Minister himself). After a further 21 days (or more if both parties agree) of conciliation and mediation, if there is still no agreement, the Commission notifies the Minister and informs him if ‘any party to the dispute has not acted reasonably and in good faith' (5.11)
If the Commission decides that the union has not acted in ‘good faith', (this could happen if the union turns down the advice of the Commission to refer the dispute for arbitration), then the employer can choose to refer the dispute to the Commission for Arbitration for compulsory arbitration (5.6.3.5(i).
So let us look at the proposed time frame once direct negotiations between employer and union have reached a deadlock:
Conciliation and Mediation at Ministry level: 21 (+n) days + 7 days
Conciliation and Mediation at Commission level: 21 (+n) days
At any time during those 49 (+n) days, the Minister or the Commission for Conciliation and Mediation may decide that the union ‘has not acted reasonably and in good faith', and then the dispute goes for compulsory arbitration at the Commission for Arbitration. The 49 days can be extended by an unlimited period (n days), by agreement, if the union wants to avoid the charge of ‘bad faith' and end up in compulsory arbitration.
So what is this ‘bad faith' that could force any dispute into compulsory arbitration, as is the rule with the present dispositions of the IRA? According to Para 5.4.11, if a union fails to disclose any information requested by the employer during negotiations, or rejects an offer without valid reason or serious discussion, uses delaying tactics, adopts a take-it or leave-it attitude, and threatens and uses intimidating language with a view to endangering the smooth industrial relations at the work place: in other words, if at any stage of negotiations, conciliation and mediation, the union mobilises its members behind the demands leading to the dispute, or starts preparations towards industrial action of any sort, this will definitely be judged as ‘bad faith'.
So the proposals contained in the White Paper regarding dispute settlement mean that much longer and more complicated procedures are being imposed, and the end result could easily be compulsory arbitration, in any case.
Compulsory Arbitration is mandatory for Fire Services, the Prison Department, essential services (which the White Paper does not define, but could easily include the docks, the customs department, public transport, health services, etc.), at the start of a ‘legal' strike if the Minister of Labour, Industrial Relations and Employment considers that ‘a trade, industry or service is likely to be seriously affected and the scope of employment curtailed (whatever that might mean!), or when the Prime Minister gets an order of the Supreme Court if he considers that an otherwise legal strike is ‘threatening to imperil the national economy' (the so-called Emergency Adjustment of Para. 5.7.8).

The Right to Strike.

There is a widespread but erroneous belief that it is the IRA as such that makes all strikes illegal; even Minister Soodhun suffers from this confusion when he describes this aspect of the IRA in the following terms on page 6 in the WeekEnd newspaper of 21 Nov. 2004: ‘ Le droit de greve n'existe pas dans l'IRA, car cette loi impose un systeme d'arbitrage obligatoire,', but then he goes on to say ‘ le ministre du Travail a le pouvoir absolu de referer tout litige au Tribunal d'arbitrage'. So strikes are illegal under the IRA, not because of the provisions of the law themselves, but because the law gives the Minister the right to make strikes illegal: the IRA does not compel the Minister to refer a dispute to the Permanent Arbitration Tribunal, he chooses to do so by himself, precisely to make all industrial action illegal.
While the White Paper pays lip-service to the need to re-establish the right to strike, it refuses to incorporate that right into the Constitution, without any convincing argument; while at the same time it leans on ILO Recommendations to impose a long list of conditions that qualify and limit that right to strike.
The White Paper declares as unlawful any strike that (a) does not arise out of a trade dispute and that has not followed all procedures laid out in the law (that will exclude all ‘Solidarity Strikes') (b) that occurs while a collective agreement or an award is in force (surely this will include just about all sectors and all workers, and at all times (c) where there is bad faith by the union and the employer (as decided arbitrarily by the Minister or the Commission for Conciliation and Mediation) (d) where the dispute has been referred for arbitration by the Minister or the employer (e) where the dispute is a dispute of rights (e.g. if workers have not been paid their previous month's wages!) (f) where the dispute relates to a personal grievance (e.g. if there is gross victimisation of a worker or union representative).(5.7.2)
The legality or otherwise of the strike is also conditional on the maintenance of a ‘minimum service', on a 20 day notice of strike being given to the Minister and to the employer, and on a secret ballot showing majority support for the strike action. After receiving the strike notice, the minister ‘may intervene with a view to promoting a settlement' (5.7.3), and he will probably get another chance of declaring the union ‘in bad faith'!

Industrial Relations Institutions.

The White Paper suggests scrapping the ‘Industrial Relations Commission' and ‘Permanent Arbitration Tribunal' set up under the IRA. These are replaced by a ‘Conciliation and Mediation Service' within the Ministry, a ‘Conciliation and Mediation Commission', and a ‘Commission for Arbitration'. All the members of these 2 Commissions are nominated by the Minister, except for the Commissioner for Arbitration who will be someone qualified for appointment as a judge, and the White Paper does not indicate how he will be appointed. The 2 Commissions will have up to 14 assessors, and will probably provide employment opportunities for a number of sell-out trade unionists, political agents, and maybe even some unsuccessful election candidates.
The White Paper also suggests that the National Remuneration Board (NRB) be preserved, but its function will be limited to those few sectors where there is no scope for collective agreements. Even the present Awards of the NRB establishing statutory minimum wages and work conditions can be over-ruled by Collective Agreements.

Conclusion

The White Paper does not offer any fundamental changes that would allow the trade union movement to effectively defend the wages and work conditions of workers through collective bargaining at enterprise or industry/sectoral levels. With the phasing out of Remuneration Orders and with ‘Concession Bargaining',and in combination with the spread of contract labour, it can be predicted that real wages and work conditions will decline over a period of time. The main aim of the White Paper appears to be to create the sort of administrative set-up that will mask the political role of the Government and the dominance of the employer in the field of industrial relations. As dispute settlement procedures get lengthier and more complex, the danger is that the trade union movement will become more bureaucratised, and that will be to the detriment of workers. The alternative framework proposed for the replacement of the IRA is no alternative at all: it certainly contains more traps than advantages, and it will most certainly not bring about more democracy in the field of industrial relations. It should therefore be rejected for its underlying anti-worker philosophy. The IRA does need to be replaced, but not by something that is potentially worse.

Ram Seegobin
For LALIT
23 November 2004