Rapport intérimaire - Rapport No. 153, Mars 1976

1. 133. This case was examined by the Committee at its session in February-March 1975 when it submitted to the Governing Body an interim report (contained in paragraphs 89-112 of the Committee's 149th Report, which was approved by the Governing Body at its 195th Session in March 1975).
2. 134. 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. 135. The case was concerned essentially with the measures taken by the Government as a result of a labour dispute and of the declaration, in December 1971, of a state of emergency, and in particular the suspension of a number of trade unions (including the General workers' Federation), the arrest of trade union officials and the seizure of union property; it was also concerned with the restriction, by national law, of the right to strike.
2. 136. When it last examined the case the Committee reached conclusions related to certain measures taken as a result of the declaration of the state of emergency and to the allegations which had been made concerning the national legislation on strikes. However, as regards the allegations which had been made concerning the arrest of trade unionists and the suspension of a number of trade unions, the Committee, in the absence of sufficient information on which it could formulate its conclusions, recommended that the Government should (i) supply information concerning the arrested members of the General Workers' Federation and unions affiliated to it, specifying in particular the precise grounds for their arrest and indicating also whether proceedings were brought against them and, if so, the outcome of these proceedings, and (ii) indicate the precise reasons why some of the unions concerned, including the General Workers' Federation, had not yet been reregistered.
3. 137. In a communication dated 18 June 1975 the Government made certain comments, which the Committee noted, and submitted further information in connection with the question raised by the Committee regarding the suspension and re-registration of a certain number of unions. The communication, however, contained no information in reply to the request made by the Committee for information concerning the trade unionists who were stated to have been arrested.
4. 138. In the aforementioned communication, the Government stated that 13 trade unions had been suspended under the Trade Union (Suspension of Registration) Order 1971. After the coming into force of the industrial Relations Act on 7 February 1974, nine of the suspended unions were formed again under the same or similar names and applied for registration under the Act. According to the Government, five of these were registered, three others had been refused registration in terms of section 9 of the Industrial Relations Act and had appealed, and in the case of one union an objection had been lodged against registration. This objection was now being heard by the Central Whitley Council. The four other unions, added the Government, had not applied for registration.

B. B. The Committee's conclusions

1. 139. The Committee recalls that, when it last examined this case, it observed that under the Industrial Relations Act, No. 67 of 1973, registration of a trade union (which is compulsory) may be refused - subject to an appeal to an arbitration tribunal - on certain grounds, namely 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)).
2. 140. The Committee pointed out that a provision whereby registration of a trade union may be refused if a 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 Government, in its communication, states that section 9 of the Act is applied with caution and that any objection based thereon has to be proved before the Industrial Relations Commission. The decision not to register on those grounds can also be appealed against to the Permanent Arbitration Tribunal.
3. 141. The Committee had also pointed out 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 choosing, contrary to the principles of freedom of association. In this connection, the Government states, in its communication, that the principle of freedom of association is enshrined in the Constitution and that the Industrial Relations Act also allows any two employers or any seven employees to form a trade union. However, the Government adds, the philosophy behind the Act is to encourage and promote a strong trade union movement for the protection of the interests of its members. The proliferation of small and weak trade unions can be said to be more in keeping with freedom of association but actually results, states the Government, in rivalry between unions and weak bargaining power to the detriment of members. On this question, the Committee has already stated on several occasions that it is more desirable in such cases for a government to seek to encourage trade unions to join together voluntarily to form united organisations than to impose on them by legislation a compulsory unification. The Committee considers that while it may be to the advantage of workers to avoid a multiplicity of small and competing trade unions and all the defects which result therefrom and while appreciating the desire of any government to promote a strong trade union movement, any system which is designed to, or which results in, a limitation on the right of workers to establish and join organisations of their own choosing runs counter to the principles of freedom of association.
4. 142. The Committee notes that, in the information that it supplies concerning the re-registration of the unions whose registration was suspended, the Government has not indicated the reasons for the refusal of three of these unions, nor the nature of the objection which has been lodged with regard to the re-registration of another union. Neither does the Government state the reasons why the General Workers' Federation has not been reregistered.
5. 143. When it previously examined this case the Committee, having noted that trade unionists had been arrested and held incommunicado without being charged or brought before a court of law, drew the attention of the Government to the principle that anyone who is arrested should be informed at the time of his arrest of the reasons for his arrest and should be promptly informed of any charges against him. The Committee had also pointed out 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 all detained persons have the right to receive a fair trial at the earliest possible moment. Moreover, the Committee pointed out to the Government that in cases involving the arrest, detention or sentencing of trade union officials, 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.
6. 144. The Committee notes with regret that the Government has supplied no information concerning the trade unionists who were arrested.