Observación (CEACR) - Adopción: 2008, Publicación: 98ª reunión CIT (2009)

Article 1(c) and (d) of the Convention. Disciplinary measures applicable to seafarers. In comments made since 1992, the Committee has observed that, under sections 183(1) and 184(1) of the Merchant Shipping Act of 1986, certain breaches of discipline by seafarers (such as desertion, neglect or refusal to join the ship, absence without leave, neglect of duty) are punishable by imprisonment (under conditions involving the performance of compulsory labour), and that under section 183(1), (3) and (4), seafarers who are not citizens of Mauritius, and who commit such offences, may be forcibly conveyed on board ship for the purpose of proceeding to sea. Referring to paragraph 180 of its 2007 General Survey on the eradication of forced labour, the Committee recalls that, in order to be compatible with the Convention, provisions imposing penalties of imprisonment on seafarers for breaches of labour discipline should be restricted to actions that endanger the safety of the ship, or the life or health of persons on board. In its previous observation, the Committee reiterated its hope that the Merchant Shipping Act would be brought into conformity with the Convention in the near future, and that the Government would soon be able to indicate further progress achieved in this regard.

The Committee notes that, in its latest report, the Government refers to the Merchant Shipping Bill 2007, which aims to repeal and replace the Merchant Shipping Act of 1986. The Government states that the Bill “takes on board the observation” of the Committee. According to the Explanatory Memorandum of the Bill, it “makes better provision for the incorporation of the international conventions to which Mauritius is a party and of the protocols which apply to this country”. The Committee notes that the Bill no longer contains a separate provision on offences by seafarers, nor does it contain any provision making explicit reference to such breaches of discipline by seafarers as desertion, neglect or refusal to join the ship, or absence without leave. It further notes, however, that, under section 217(16)(n), the Bill continues to treat disobedience as a criminal offence, punishable by imprisonment (involving the imposition of compulsory labour), in penalizing a seafarer who “refuses to obey the master’s order, neglects his duty or assaults any member of the crew”. The Committee also notes the overly broad and vague wording of section 217(16)(j) of the Bill, which provides that “any person” (and therefore presumably any seafarer) who on board a ship so conducts himself that he is likely “to cause interference or annoyance to the other persons on board the ship” commits an offence punishable by imprisonment, and observes that it also raises problems of compatibility with the Convention.

The Committee therefore observes that the Merchant Shipping Bill 2007 continues to provide for criminal sanctions, involving imprisonment attended by the imposition of compulsory labour, for breaches of labour discipline that fall within the scope of activities protected under Article 1(c) of the Convention. The Committee trusts that the Government will take measures to further amend the Merchant Shipping Bill 2007, so as to ensure that its provisions are in conformity with the Convention, and that it will communicate a copy of the Bill as soon as it has been adopted into law.

Article 1(d). Sanctions for participation in strikes. The Committee has noted the observations in the communication of the International Confederation of Free Trade Unions (now the International Trade Union Confederation) dated 6 July 2006, as well as the Government’s reply to these comments in its communication of 18 October 2006. In its previous comments the Committee referred to the need to revise the Industrial Relations Act 1973 (IRA) in order to bring it into line with the Convention. In particular, it observed that, under sections 82 and 83 of the IRA, submission of any industrial dispute to compulsory arbitration is left to the discretion of the Minister; that the decision handed down following this procedure is enforceable (section 85) and any strike becomes unlawful (section 92); and that participation in a strike thus prohibited may be punished by imprisonment (section 102), a sanction which involves compulsory labour by virtue of section 35(1)(a) of the Reform Institutions Act. The Committee recalls, referring also to paragraphs 182–186 of its 2007 General Survey on the eradication of forced labour, that provisions for compulsory arbitration enforceable with sanctions that involve compulsory labour are incompatible with the Convention.

Referring to its comments addressed to the Government under Convention No. 87, likewise ratified by Mauritius, the Committee notes the adoption of the Employment Relations Act, 2008 (ERA) which, once proclaimed, will replace the Industrial Relations Act 1973 (IRA). However, the Committee notes that section 82(1)(b) of the ERA provides that, where the duration of a strike which is not unlawful is such that an industry or a service is likely to be seriously affected, or employment is threatened, the Prime Minister may apply to the Supreme Court for an order prohibiting the continuation of the strike. It notes further that section 82(3) of the ERA provides that, where the Supreme Court makes an order under subsection (1)(b), it shall refer the matter to the Tribunal for arbitration. The Committee considers that this amendment, which transfers authority from the Prime Minister to the Supreme Court, still allows for the imposition by the authorities of compulsory arbitration procedures, enforceable by penal sanctions against participants in strikes that involve the imposition of compulsory labour and, therefore, is incompatible with Convention No. 105.

The Committee trusts that measures will be taken in the near future to further amend section 82 of the Employment Relations Act 2008 so as to ensure, in conformity with the Convention, that no sanctions involving compulsory labour can be imposed for the mere fact of participating in a peaceful strike. The Committee requests the Government to indicate in its next report progress made with regard to the proclamation of the ERA and to communicate the complete text as soon as it enters into force.