Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 318, Novembre 1999

1. 272. The complaint in this case appears in a communication from the Government Teachers' Union (GTU) of 22 February 1999.
2. 273. The Government sent its observations in a communication dated 18 May 1999.
3. 274. Mauritius has not ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), but has ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 275. In its communication of 22 February 1999, the GTU alleges that it has been seriously harassed by the Ministry of Education over the last eight years on the issue of time off. The GTU explains that it has existed for 54 years and has always had time-off facilities to cater for its 5,000 members who are teachers in the primary schools. As a matter of practice in the Ministry of Education time-off facilities have always been granted to unions. The Ministry's circular dated 7 June 1989 mentions the granting of these facilities as follows: (a) president, secretary and treasurer as and when required; (b) the other committee members, one day off a week subject to the conditions laid down. The GTU alleges that, when confrontation arose in 1991, the Ministry of Education chose to modify unilaterally its circular on time off and reduced considerably time-off facilities from five to one day for presidents, secretaries and treasurers and from one day to a half day for other committee members. The GTU protested vehemently and, following this protest, the head of the civil service and Secretary of Home Affairs released a circular letter in which it drew the attention of ministries to the provisions of the Industrial Relations Act (IRA) (section 49 and paragraph 96 of its Third Schedule). The circular mentioned that trade union officials were not being granted time-off facilities to attend their union activities. The complainant organization explains that section 96 of the Third Schedule (code of practice) of the IRA states that the facilities needed by workplace representatives will depend on their functions. The nature and extent of these facilities should be agreed between trade unions and management. As a minimum, they should be given: (a) time off from the job to the extent reasonably required for their relations functions, permission not being unreasonably withheld; and (b) maintenance of earnings while carrying out those functions. Following the circular letter of the head of the civil service and the protests formulated by all trade union federations, the Ministry of Education stopped its repressive policy. However, the GTU alleges that the Ministry of Education has systematically refrained from seeking agreement with the union on the issue of providing facilities for workplace representatives with the deliberate intention of having recourse to repressive measures in order to threaten and intimidate trade unions.
2. 276. The GTU explains further that, while the Ministry issued its circulars restricting time-off facilities from the "as when required" basis to one day per week, it did not so far spell out any specific measures against trade union representatives. In fact, in one of its circular letters it mentioned that additional time off could be granted. However, the GTU states that in February 1999, a letter was issued to trade union officials informing them that deductions would be effected from their salaries.

B. The Government's reply

1. 277. In its communication of 18 May 1999, the Government explains firstly that the granting of time-off facilities to office-bearers of unions to attend to trade union matters is governed by the Industrial Relations Act of 1973 and the Personal Management Manual of 1992. The basic principle being that time-off facilities may be granted to trade union officials subject to the exigencies of the service.
2. 278. The Government then explains that the Ministry of Education has known three different ministers and permanent secretaries over the last eight years. All ministers and permanent secretaries have witnessed the abuse being made of time-off facilities by some trade unionists, especially the Government Teachers' Unions (GTU) and had expressed concern over the situation. The Ministry has consistently tried to discourage such abuses and it tried to resolve the problem in an amiable way. At different points in time during those past ten years or so, the attention of those concerned has been drawn to the need to comply with existing instructions regarding time off. However, the trade unionists have turned a deaf ear to the letters issued by the Ministry.
3. 279. The Government then explains that some 33 trade unions cater for the different categories of staff in the public as well as private schools and also in parastatal organizations attached to the Ministry of Education. The Ministry has always given necessary facilities to all recognized trade unions to enable them to carry out their activities and time-off facilities have been very flexible. The practice since 1979 had been to grant time-off facilities to the president, secretary and treasurer as and when required. However, over the years, it was observed that this practice led to an abuse of time-off facilities by the executive members of some unions. Following reports of abuse of time off, the Ministry decided in 1985 that officers should not leave their place of work unless they made applications in writing in advance for time off and this had been approved by the head of section. This was meant to enable the latter to make arrangements for replacement. The unions protested vehemently against this decision arguing that the IRA stipulates that the "actual nature of the business for which the leave or time off is required is not a matter into which the head of department should normally inquire".
4. 280. Since 1990, the Ministry had been receiving an increasing number of reports of abuse being made of time-off facilities by certain trade union members, including the GTU. It was noted that time off taken by school union members was excessive as compared to other unions. In March 1991, the Government was apprised of the considerable abuse being made by office-bearers of the GTU. For instance, the president of the GTU did not attend his place of work at all in 1990. Moreover, other executive members of the GTU took 128-129 days time off on 140 working days as compared to four to seven days monthly by members of other recognized trade unions. Due to these frequent absences, parents were making representations as this was causing severe disruption of work. A circular dated 11 April 1991 was subsequently issued to all heads of section informing them that the time-off facilities would be as follows: (1) president, secretary and treasurer -- one day per week; (2) other office-bearers -- a half day per week.
5. 281. A meeting was held between management and the unions concerned (including the GTU) on 20 May 1991 in the light of the written representations made by several trade unions following the issue of the circular dated 11 April 1991. During the course of the meeting, the staff side argued that the new arrangements for time off did not give them adequate time to attend to their trade union matters. They requested that the present conditions governing time off be repealed and that the grant of time off be monitored over a period of five to six months and cases of abuse be controlled. The attention of unions was drawn to the fact that abuse to a large extent of time-off facilities had led the Ministry to review its policy in the best interests of all concerned. In addition, the Ministry had acceded to the requests of union members for posting in Port Louis (the capital) to facilitate their trade union activities. Moreover, it had also always considered urgent requests for the release of officers to attend to trade union matters.
6. 282. The Ministry finally agreed to freeze the new conditions applicable for time off as requested by the staff side until the end of June 1991. In the light of a study of absences due to time off during that period, the Ministry would consider further action. Accordingly, the Ministry issued a second circular dated 7 June informing all concerned that subject to the exigencies of the service, the president, the secretary and the treasurer of recognized trade unions would be granted additional time off provided they gave the reasons and filled in the necessary application forms.
7. 283. The Ministry monitored the attendance of trade unionists concerned. However, no improvement was noticed and abuse of time-off facilities continued as before. The president, secretary and treasurer of the GTU availed themselves of time off on almost all working days without filling in necessary forms. The Ministry, after consultations with the Ministry of Civil Service Affairs, decided that disciplinary action be instituted against the defaulters. The decision to grant one day per week to president, secretary and treasurer and a half day to other office-bearers was maintained but it was agreed that additional requests for time off would be considered provided applications were made in writing. The trade unions protested against the circulars issued by the Ministry of Education.
8. 284. The Government then acknowledges that the head of the civil service issued a circular dated 8 May 1992 drawing attention to the provisions of section 49 of the Industrial Relations Act and paragraph 96 of the Third Schedule (code of practice) and section 5/X/8 of the General Orders Establishment. He stressed that time off facilities were to be granted subject to exigencies of the service. He also stated that there were instances where time-off facilities were not being granted to trade unionists whereas in other cases abuse was being made of time off. He added that both situations were not conducive to smooth industrial relations and should be avoided. He also added that each Ministry should devise its own formula for the granting of time off without jeopardizing efficiency and productivity. On this issue, the Government insists that the head of the civil service did not at any time state that office-bearers of trade unions be given time off all the time or be altogether released from their teaching duties. On the contrary, he advised that abuse should not be made of time off.
9. 285. The Government then insists that the Ministry has held several meetings with the unions. However, the GTU has systematically refused to come to an agreement regarding time off. It asked for delays and a moratorium but continued to take time off on almost all working days. The president of the GTU has not taught for a number of years. He has also refused to replace absent colleagues. The attention of the trade unionists concerned was drawn in writing several times to the abuse of time off and to their failure to fill in application forms for additional time off taken. The Government provides copies of such letters dated 23 June 1992, 18 March 1993, 29 April 1998 and 8 February 1999.
10. 286. The Government then explains that in the earlier days when the Ministry had applied the "as and when required" formula for time off, it had never been the intention to grant time off every day to trade union officials but this was meant to give greater flexibility to enable them to leave their place of work with the necessary permission to attend to their trade union activities. The Ministry had never at any point in time meant this arrangement to be interpreted by trade unionists as being eligible for time off on every working day. As regards the circular dated 7 June 1991, which requested the trade union leaders to fill in an application form in order to obtain time-off facilities in excess of the agreed quantum, the Government states that in accordance with the existing conditions of service governing leave in the Mauritian civil service, any leave which is not an approved leave is considered to be unauthorized leave and is therefore considered to be without pay. Any government employee who proceeds on unauthorized leave for whatever reason is liable to have his salary deducted accordingly. The Ministry had earlier warned the trade unionists concerned that appropriate disciplinary action would be taken in the event they continued to make an abuse of time off.
11. 287. Despite the repeated warnings issued to the trade union officials concerned regarding their unauthorized leave, the latter have paid no attention. The situation gave rise to audit queries in 1993 when the Director of Audit observed that time-off taken by some trade union officials far exceeded time off granted specifying that, in three cases, the officers were barely attending duty, thus disrupting classes and pupils were left unattended. In his following report in 1994, the Director of Audit again noted that teachers who were office-bearers in their respective trade unions continued to take time-off facilities and were barely attending duty. The attention of those concerned was drawn to the reports but still no improvement was noted in their respective attendance. On 15 May 1995, a meeting under the chairmanship of the permanent secretary was held with trade unions, including the GTU. Their attention was again drawn to the remarks of the Director of Audit and they were requested to improve their attendance.
12. 288. The Government was again informed on 20 June 1995 of the unauthorized time-off facilities being taken. Before initiating disciplinary action, the head of the civil service spoke to all trade unionists on 6 July 1995, drawing their attention to the relevant regulations governing the granting of time off and invited their collaboration. In addition, at the request of the head of the civil service, the supervising officer of each ministry was called upon to discuss with the respective unions recognized by the Ministry. After all efforts to settle the issue through dialogue had failed, the Ministry decided to act in accordance with the existing provisions governing unauthorized leave. Deductions from salary are made for other officers who proceed on unauthorized leave.
13. 289. In conclusion, the Government points out that despite the fact that the attention of GTU officials has been drawn several times over the past few years to the need to comply with standing instructions, they have continued to make an abuse of time off to the extent that some of them have not taught a single day over the past ten years but still expect to obtain their salary at the end of every month. They usually put in an appearance at school on some days and disappear immediately afterwards. They have systematically refused to take charge of a class. Such a situation is causing serious disruption of work in certain schools and representations have been received from parents regarding frequent absences of teachers.
14. 290. Finally, the Government insists that the Ministry of Education has the responsibility to provide education to children, manage schools and all human resources, including teachers. At the same time, it cares for the welfare of teachers as it is perfectly conscious of the need to promote healthy industrial relations. The Ministry recognizes the rights and privileges of trade unions but it is also responsible for the smooth running of schools in general and it has the duty to ensure that discipline and efficiency prevail at all times. It is in this spirit that the Ministry has evolved a policy for time off whereby the trade union officials are given a great amount of flexibility to attend to trade unions matters whilst at the same time they are expected to fulfil their obligations as teachers. As the Ministry's partners in education, members of the trade union referred to are unfortunately not fulfilling their part of the contract and have often neglected the interests of the pupil.

C. The Committee's conclusions

1. 291. The Committee notes that the present allegations refer to conflicts concerning the granting of time-off facilities to office-bearers of unions in order to attend their trade union activities.
2. 292. The Committee observes that the complainant organization refers to a circular from the Ministry of Education of June 1989 which granted time-off facilities to presidents, secretaries and treasurers of unions "as and when required" and one day off a week for other committee members. The GTU alleges that this circular was unilaterally modified by the Ministry in 1991 and thus reduced time off from five to one day a week for presidents, secretaries and treasurers and half a day for others. However, the Committee notes that the GTU has indicated that following its protest, the Ministry of Education stopped its repressive policy. Furthermore, the GTU stated that the 1991 circular restricting time-off facilities did not spell out any specific measures against trade union representatives and that another circular mentioned that additional time off could be granted. The GTU also pointed out that a recent letter informed trade union officials that deductions would be effected from their salaries. The Committee notes further that while the GTU acknowledges that as a matter of practice in the Ministry of Education, time-off facilities have always been granted to unions, it also accuses the Government of refraining from seeking an agreement with the unions on the issue of providing facilities for workplace representatives.
3. 293. The Committee notes that the Government does not contradict the complainant organization concerning the fact that a circular letter issued in 1991 reduced time-off facilities. In this regard, the Committee takes note of the Government's explanations according to which the 1991 circular came after several years of abuse by trade union members and particularly GTU members. The Committee observes that after the 1991 circular was issued, meetings were held between management and the unions concerned, following which the Ministry agreed to freeze the new conditions applicable for time off for a determined period of time. The Ministry then issued shortly afterwards another circular which granted additional time off to trade union officers provided they gave reasons and filled in the necessary application forms. The Committee notes that according to the Government, GTU officials never complied with this requirement and the abuses continued.
4. 294. The Committee further observes that the abuses described by the Government gave rise to audit queries in 1993 and 1994 which were brought to the attention of the trade union officers concerned. It also notes that the Ministry of Education convened several meetings with the unions in 1995 in order to draw their attention to the regulations governing the granting of time off and invited their collaboration. The Committee notes that, according to the Government, it is after all efforts to settle the issue through dialogue had failed that the Ministry decided to initiate disciplinary action against unauthorized leave.
5. 295. Regarding the question of the negotiations between the parties, the Committee observes that while the GTU accuses the Government of systematically refraining from seeking an agreement on the time-off facilities issue, the Government mentions several meetings where it attempted to find a solution and claims that the GTU has asked for delays and a moratorium but has nevertheless continued to take time off on almost all working days. In this regard, the Committee recalls the importance which it attaches to the obligation to negotiate in good faith for the maintenance of the harmonious development of labour relations. The Committee regrets that the Government unilaterally decided to change the existing practice of time-off facilities without consulting the trade unions. It also insists that the principle that both employers and trade unions should negotiate in good faith and make efforts to reach an agreement means that any unjustified delay in the holding of negotiations should be avoided (see Digest of decisions and principles of the Freedom of Association Committee, 4th edition, 1996, paras. 814 and 816).
6. 296. Regarding the issue of the granting of time-off facilities to trade union officers, the Committee has stated in the past that such facilities should be supplied in the undertaking as may be appropriate in order to enable workers' representatives to carry out their functions promptly and efficiently, without loss of pay, but in a manner as not to impair the efficient operation of the undertaking concerned. The Committee also recalls that while workers' representatives may be required to obtain permission from the management before taking time off, such permission should not be unreasonably withheld. The Committee also observes that the current system of time-off facilities does not appear to be satisfactory to either of the parties. In this respect, the Committee can only call on the parties to come swiftly to an agreement on all the modalities concerning the granting and the use of time-off facilities, which would take into account the characteristics of the industrial relations system, and for both parties to respect the said agreement. The Committee requests the Government to keep it informed in this regard.