Informe provisional - Informe núm. 149, Noviembre 1975

1. 89. The complaint presented on behalf of the General Federation of Workers is contained in a communication received on 10 July 1972.
2. 90. Since, despite repeated requests, no comments had been received from the Government with respect to the complainants' allegations, pressing appeals to supply the information requested were addressed to the Government by the Committee. The Committee also pointed out to the Government that under the rules of procedure it was permissible for it to submit a report on the substance of the case even in the absence of the observations awaited from the Government. The Government finally forwarded its observations by a letter dated 30 October 1974, received after the 68th Session of the Committee.
3. 91. Mauritius has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87); it has, however, ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. A. The complainants' allegations

1. 92. The complainants state that the Trade Dispute Ordinance No. 26 of 1965 restricted the right to strike in essential services. Following a strike by dockers - not then considered to form part of an essential service - this enactment was amended by an Act passed in the space of one afternoon (Act No. 49 of 1971). The complainants go on to state that the new Act added dock work to the list of essential services and rendered illegal any strike (whether in an essential service or not) once a board of inquiry or an arbitration tribunal had been nominated, contravention of the last-mentioned provision being punishable by six months' imprisonment.
2. 93. The strike in question - continue the complainants - thus became illegal overnight, but it continued nevertheless. The Government used the army and other highly-paid strike-breakers to replace the strikers. All the trade unions affiliated to the General Workers' Federation accordingly joined the strike, which became a general strike. The complainants add that the Government had already shown in the previous months an attitude of repression against any movements for reform emanating from trade unions, as, for example, in the case of a strike called by the Union of Bus Workers. In the present instance the Government declared a state of emergency.
3. 94. As a result, state the complainants, the press was censored, public meetings and assemblies of more than five people were prohibited and the following measures were taken against the trade unions responsible for the strike: the General Workers' Federation and thirteen trade unions affiliated to it and the Building and General Construction Workers' Union were suspended; all the strikers were dismissed and, though most of them were subsequently re-employed, they lost their length-of-service rights and a number of fringe benefits and guarantees; a number of trade unionists, including most of the officers of the complaining federation and its affiliated unions, were arrested and held incommunicado without being charged or brought before a court of law; custody of union property and funds was placed in the hands of the Registrar of Trade Unions, the use of union premises was prohibited, seals were fixed on office buildings and the arbitration tribunals appointed to settle industrial disputes were revoked. The complainants further state that article 5 of the Constitution, relating to the protection of the right to personal liberty, and article 16, relating to protection from racial discrimination, etc., were suspended.
4. 95. In its letter of 30 October 1974 the Government merely states that the General Workers' Federation did not limit itself to trade union matters but engaged in political activities with a view to overthrowing the Government. Appropriate action therefore had to be taken to restore peace and order. The Government adds however that the unions concerned started operating again at the beginning of 1974, and several unions affiliated to the General Workers' Federation have recently been registered. The Government therefore considers that the allegations of infringements of trade union rights are not founded.
5. 96. The case is accordingly essentially concerned with the measures taken by the Government as a result of a labour dispute and of the declaration of a state of emergency, and in particular the suspension of a number of trade unions, the arrest of trade union officials and the seizure of union property. It is also concerned with the restriction of the right to strike by national law.
   • Allegations Relating to Measures Taken as a Result of the Declaration of a State of Emergency
6. 97. The Committee notes that among the measures taken as a result of the labour dispute and the declaration of a state of emergency, public meetings and assemblies of more than five people were prohibited, a number of trade unions were suspended, the strikers were dismissed (and, though most of them were re-employed, they lost certain benefits such as length-of-service rights), a number of trade unionists were arrested and imprisoned without being charged or brought before a court of law, union property was seized and the arbitration tribunals appointed to settle disputes were revoked.
7. 98. The Committee also notes the Government's statement to the effect that the General Workers' Federation was engaging in political activities with a view to overthrowing it. However, the Government gives no details of these activities. The Committee wishes first of all to point out, as it has done many times in the past, that it may be difficult to draw a clear line of demarcation between political issues and social and economic problems, since the two fields overlap, and that it would therefore be preferable if, without prohibiting in general terms political activities on the part of occupational organisations, States were to entrust to the judicial authorities the task of repressing abuses which might be committed by organisations which had lost sight of the fact that their fundamental objective should be the economic and social advancement of their members.
8. 99. The Committee likewise considers that governments, desiring to see labour relations develop in an atmosphere of mutual confidence, should have recourse, when dealing with situations resulting from strikes and lockouts, to measures provided for under common law rather than to emergency measures, which involve a danger, by reason of their very nature, of certain restrictions being placed on fundamental rights.
9. 100. The Committee notes that trade unionists have been arrested and held incommunicado without being charged or brought before a court of law. In this connection the Committee has already emphasised the importance which should be attached to the principle that anyone who is arrested should be informed, at the time of arrest, of the reasons for his arrest and should be promptly informed of any charges against him. The Committee has also observed that in all cases in which trade unionists are preventively detained, these measures may involve a serious interference with the exercise of trade union rights, and the Committee has always emphasised the right of all detained persons to receive a fair trial at the earliest possible moment.
10. 101. Moreover, in cases involving the arrest, detention or sentencing of trade union officials, the Committee has taken the view that it was incumbent upon the government to show that the measures it had taken were in no way occasioned by the trade union activities of the individuals concerned, but solely by activities outside the trade union sphere which were either prejudicial to public order or of a political nature.
11. 102. The Committee further notes that the registration of the General Workers' Federation and a number of trade unions affiliated to it was suspended by ministerial order, custody of union property and funds was placed in the hands of the Registrar of Associations, the use of union premises was prohibited and the Commissioner of Police was empowered to fix seals on union office buildings.
12. 103. In this connection the Committee wishes to emphasise the importance which it attaches to the principle that workers' organisations should not be subject to dissolution or suspension by administrative authority. It has already observed in other cases that suspension or dissolution decreed by the executive branch of the government pursuant to a law conferring full powers or in the exercise of legislative functions, like suspension or dissolution by administrative authority, does not ensure the right of defence which normal judicial procedure alone can guarantee - procedure which the Committee considers to be essential.
13. 104. The Government states in its letter that the unions concerned started operating again in 1974 and that several unions affiliated to the General Workers' Federation have recently been registered.
14. 105. The Committee observes that, under the Industrial Relations Act No. 67 of 1973, registration of a trade union (which is compulsory) may at present be refused - subject to an appeal to an arbitration tribunal - on certain grounds, including the ground that the trade union is engaged, or is about to engage, in activities likely to cause a serious threat to public safety or public order, that its rules are ambiguous or that there exists a registered trade union which is sufficiently representative of the interests which are intended to be safeguarded by the trade union seeking registration (section 9(b), (c) and (d)).
15. 106. In this connection the Committee wishes to point out that a provision whereby registration of a trade union may be refused if the union "is about to engage" in activities likely to cause a serious threat to public safety or public order might be improperly taken advantage of, and that it should therefore be applied with the greatest caution. The Committee considers that the refusal to register should only take place where serious acts have been committed and have been duly proved, normally under the supervision of the competent judicial authorities.
16. 107. The Committee likewise considers that a provision authorising the refusal of an application for registration if another union, already registered, is sufficiently representative of the interests which the union seeking registration proposes to defend means that in certain cases workers may be denied the right to join the organisation of their choice, contrary to the principles of freedom of association.
    • Allegations Relating to National Legislation on Strikes
17. 108. The Committee observes that the Trade Dispute Ordinance No. 26 of 1965, as amended by Act No. 49 of 8 December 1971, established a list of essential services in which strikes were subject to restrictions (requirement that disputes be reported in writing to the Minister, with specification of the grounds, lapse of fourteen days without the dispute being settled). In addition, once the Minister had appointed a conciliator, an arbitration tribunal or a board of inquiry in connection with a dispute which existed or which was apprehended in any service, whether essential or not, it was unlawful, on any ground whatsoever, for a worker to take part in a strike in that service; any person contravening these provisions was liable to not less than six months' imprisonment.
18. 109. The Committee notes that this legislation has been repealed by the Industrial Relations Act No. 67 of 1973. Under this new Act any industrial dispute, whether existing or anticipated, must be reported to the competent Minister, who may accept or reject the report made to him by one of the parties (in the event of rejection an appeal may be filed with the Permanent Arbitration Tribunal). If the report is accepted various courses of action are open to the Minister, including referral of the dispute to the Permanent Arbitration Tribunal, which will then make an award (sections 79 to 83 of the Act).
19. 110. An existing or threatened strike is unlawful unless (section 92) (a) a report of the dispute has been made as indicated above; (b) thirty-two days have elapsed since the date on which the Minister received the report and the dispute has not been settled or referred to the Arbitration Tribunal; (c) the strike commences within fifty-six days from the date on which the Minister received the report. These periods may be prolonged if the parties request a longer period in which to settle their dispute. Furthermore (section 93), where a lawful strike has commenced and the Prime Minister is of the opinion that its continuance will imperil the national economy, he may by Order declare that strike to be unlawful for a period of sixty days.
20. 111. The Committee notes that the lawfulness of the strike with which this case is concerned depended in the final instance upon a decision taken by the public authorities under the procedure for the settlement of labour disputes. It is of the opinion in this connection that the right to strike - which it has always considered to be one of the essential means through which workers and their organisations may promote and defend their occupational interests - is affected where a minister is permitted by law to submit a labour dispute for compulsory arbitration whenever he thinks fit, thus preventing recourse to a strike. In fact, although the Committee has found acceptable temporary restrictions upon the right to strike during conciliation and arbitration proceedings, or the prohibition of strikes in the civil service and in services which are essential in the strict sense of the term (provided always that this is accompanied by procedures of conciliation and arbitration to protect the workers' interests), it has nevertheless pointed out that, if a legislative provision imposes directly or indirectly a total ban on strikes, this ban can constitute an important restriction of the potential activities of trade unions