Rapport définitif - Rapport No. 338, Novembre 2005

1057. The complaint is contained in a communication from the Mauritius Labour Congress (MLC) dated 1 December 2004. The Government sent its observations in a communication dated 26 January 2005.

1. 1058. Mauritius recently ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87). It has also ratified the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegations

1. 1059. In its communication dated 1 December 2004, the complainant stated that since the last revision exercise of the Pay Research Bureau (PRB) published in June 2003 on salaries and conditions of work of public officers in the country, public officers were no longer allowed to declare disputes on this report. The report was, in principle, published every five years and recommended salaries and conditions of work of public officers in all sectors, namely the civil service, parastatal bodies and local government. It had so far been the practice for employees in these sectors to accept the report but generally unions had the possibility to contest recommendations which they considered were not favourable to their members. The practice for unions to declare disputes on specific aspects of the recommendations of the PRB had been an established practice until 2003 when the PRB came out with the following recommendation in paragraph 1.39 of its report:
2. Past experience has shown that after each major review in the Public Sector, staff associations have declared disputes although opting for the implementation of the recommendations. The recommendations of independent Committees/Commissions to redress the alleged anomalies have almost always further disturbed established relativities. To address this very sensitive issue, the Bureau is of the view that recommendations that have been accepted for implementation by staff should not be considered as industrial disputes and recommends accordingly.
3. 1060. The complainant added that since the establishment of the PRB the wide majority of unions catering for public officers had the possibility, despite their acceptance of the PRB’s reports, to contest specific recommendations on salaries and other conditions of work. Generally, the unions termed the issues with which they disagreed as “anomalies” and it was the Civil Service Arbitration Tribunal which corrected them.
4. 1061. The complainant added that in the absence of a possibility to bring such anomalies before the Civil Service Arbitration Tribunal, the PRB had accepted in its last report that it might have left some errors or omissions and invited unions to make submissions on these issues. The complainant emphasized that this practice had always existed (inviting trade unions to make submissions to the PRB) but had not given satisfaction to unions or even to public officers. In fact, various unions had pointed out that the issues raised by them had not been addressed by the PRB in its latest report on errors and omissions and this had given rise to much discontent. With the absence of the possibility to declare disputes on the PRB report, it appeared that the PRB was now in a position to dictate its terms and that employees of the public sector had no other option but to accept all its recommendations or to stand to lose salary increases or new conditions of service. Though unions accepted that the PRB sometimes corrected some of its own errors and omissions, it was also clear that it could not be accepted as an institution which was judge and party at the same time.
5. 1062. According to the complainant, the fact that public sector unions were unable to declare disputes on the report constituted a major violation of their rights as public sector employees. Prior to the last PRB report, almost all unions had declared disputes on the report. These disputes had been referred to the Civil Service Arbitration Tribunal which, after examining them, made its awards which became binding on all parties including the Government. The absence of this recourse was badly felt today and there was absolute need for redress in this connection.
6. 1063. The fact that the report no longer allowed unions to declare disputes showed that there was compulsion on all officers to accept the PRB recommendations in their entirety. The complainant emphasized that those who opted not to accept the report and make a representation against its recommendations might have to wait for more than five years for their representation to be decided, sometimes without obtaining satisfaction. It was precisely for this reason that almost all officers chose to accept the PRB report but it was clear that they did so because they were left with no other alternative.
7. B. The Government’s reply
8. 1064. In its communication dated 26 January 2005, the Government stated that on 16 January 2003, the Industrial Relations (Amendment) Act 2003 was enacted amending the definition of “industrial dispute” to the effect that employees who accepted the recommendations of the Pay Research Bureau (PRB) could not declare a dispute on remuneration or allowance of any kind made in the report, if they had accepted those conditions by signing an option form. The PRB conducted a salary review exercise every five years and made its recommendations after consultations with the ministries and parastatal bodies, as well as trade unions of the public sector. All the parties were heard and given the opportunity to make proposals. Following the publication of the salary review report, public officers were invited to sign an option form so as to indicate their acceptance of the new salaries and conditions of service. The signing of the option form was voluntary. The Government added that the complainant and others had lodged a case before the Supreme Court for a judicial review of the relevant amendment to the Industrial Relations Act and the case had been fixed on 3 March 2005 for filing of the plea.
9. 1065. The Government added that in its 2003 report, the PRB observed that past experience had shown that after each major review in the public sector, staff associations had declared disputes although opting for the implementation of its recommendations. The recommendations of independent committees/commissions to redress the alleged anomalies had almost always further disturbed established relativities. In order to address this situation, the Bureau recommended, in paragraph 1.39 of its report, that once the recommendations of the report had been accepted for implementation by staff, they should not be considered as industrial disputes.
10. 1066. Past experience had shown that all disputes had invariably been sent back to the PRB which had dealt with the matter expediently and competently, whereas no settlement had been reached in the Civil Service Arbitration Tribunal, notwithstanding the long delays in dealing with the disputes (at the Tribunal). More specifically, in 1987, following protests after the publication of the report of the PRB, the Government granted an interim increase of Rs.400 to all officers and a salaries commissioner was appointed to carry out a fresh salary review instead of looking at the anomalies. He released a report in 1988. Trade unions again declared disputes which were referred to the Civil Service Arbitration Tribunal. The latter indicated that it had no competence to examine the disputes and mentioned that the practice of declaring disputes after signing an option form to accept the new salaries and allowances had led to organized chaos. In 1989, the Civil Service Arbitration Tribunal referred the disputes back to the PRB. In 1993, the Tribunal was again in the presence of industrial disputes after the salary review report. It simply granted an increase of three increments to all officers drawing up to Rs.20,400 and an allowance of Rs.1,800 to those drawing above Rs.20,400. It referred all the disputes concerning the conditions of service back to the PRB.
11. 1067. In 2003, when the new system came into effect, almost all the officers in the public sector and parastatal bodies opted for the new salaries and conditions of service after the report of the PRB was released. All officers and the trade unions were given a period of three months to make representations and to highlight any anomaly to the PRB, which undertook to issue an Errors and Anomalies Report by early 2004. On receiving the representations from officers or trade unions, the PRB again held consultations with the parties concerned and issued its report in May 2004. There was general satisfaction on the Errors and Anomalies Report. Public officers and trade unions had been informed that in case there were some omissions and anomalies which subsisted, these would be considered by the Ministry of Civil Service Affairs and Administrative Reforms, in consultation with the PRB. Finally, the redefinition of industrial disputes in the amendment of the IRA allowed any public officer who did not accept the salary or remuneration prescribed in the PRB report, to declare an industrial dispute.

C. The Committee’s conclusions

1. 1068. The Committee notes that this case concerns allegations that the Pay Research Bureau (PRB) which publishes every five years a report recommending salaries and conditions of work of public officers (in the civil service, parastatal bodies and local government), violated Conventions Nos. 87 and 98 by ending in 2003 the traditional practice of allowing trade unions to declare disputes over its recommendations on salaries and other conditions of work, while at the same time, having opted to accept the benefits flowing from these recommendations; this change left the public employees with no choice but to accept the PRB’s recommendations, as those who opted not to do so might have to wait for a long time to obtain possible improvements without enjoying the current benefits.
2. 1069. The Committee notes that, according to the complainant, it has been an established practice for the wide majority of public sector trade unions to contest specific recommendations on salaries and other conditions of work in the PRB reports despite having accepted these reports (this would apparently allow them to accept a salary increase while claiming further improvements). The trade unions would term the issues with which they disagreed as “anomalies”, and have them examined by the Civil Service Arbitration Tribunal. The PRB decided to recommend a change to this practice in paragraph 1.39 of its 2003 report, ending the possibility to accept its recommendations and then declare a dispute with regard to salaries and benefits before the Civil Service Arbitration Tribunal. Although public officers still had the possibility to make representations if they opted not to accept the report, they might have to wait for more than five years for their representation to be decided, sometimes without obtaining satisfaction. Thus, the public officers had no real option but to accept the PRB’s recommendations in their entirety or stand to lose salary increases or new conditions of service. Although the PRB had invited trade unions to make submissions on any errors and omissions in its 2003 report, it had not addressed the issues raised by various unions giving rise to much discontent. According to the complainant, the PRB could not be accepted as an institution which was judge and party at the same time and there was a need to maintain the possibility to bring disputes before a third party like the Civil Service Arbitration Tribunal.
3. 1070. The Committee notes that according to the Government, the PRB conducts a salary review every five years and makes its recommendations after consultations with the ministries and parastatal bodies, as well as public sector trade unions. All the parties are heard and given the opportunity to make proposals. Following the publication of the salary review report, public officers are invited to sign an option form voluntarily so as to indicate their acceptance of the new salaries and conditions of service. On 16 January 2003, the Industrial Relations (Amendment) Act, 2003, was enacted amending the definition of “industrial dispute” to the effect that employees who accepted the recommendations of the PRB by signing an option form could no longer declare a dispute on the recommendations over remuneration or allowance of any kind made in the report. The complainant and others had lodged a case before the Supreme Court for a judicial review of the Industrial Relations (Amendment) Act, 2003. The reason for departing from the previous practice was that disputes over the PRB’s recommendations on remuneration and allowances tended to be brought before successive bodies without putting an end to the controversy. In 1988-89, for instance, a dispute had been brought first before the Government, which granted an interim salary increase, then before a salaries commissioner who issued a report and then, before the Civil Service Arbitration Tribunal which referred the dispute back to the PRB. The Civil Service Arbitration Tribunal had indicated on that occasion that the practice of first accepting the PRB report and then declaring disputes over remuneration and allowances had led to organized chaos. In 2003, when the new system came into effect, there were very few disputes over the PRB’s recommendations, and for those that subsisted, the PRB held consultations with the parties concerned, including public sector trade unions, before issuing its Errors and Anomalies Report in May 2004. There was general satisfaction with this report. Any public officer who did not accept the salary or remuneration prescribed in the PRB report, maintained the possibility to declare an industrial dispute.
4. 1071. The Committee observes that the PRB is an independent body entrusted with determining the terms and conditions of employment of public officers. The PRB issues its recommendations after having carried out consultations with all parties concerned, including public sector trade unions. In addition, mechanisms have been built into the procedure to enable post-recommendation consultations to identify any errors or omissions. Indeed, in its 2003 report the PRB undertook to hold further consultations with trade unions which would indicate errors and omissions in its report, with a view to rectifying certain aspects of its recommendations on salaries and allowances. The changes introduced in 2003 had the effect of restricting the possibility for public sector trade unions to bring a dispute over the PRB’s recommendations to the Civil Service Arbitration Tribunal if their members (on behalf of which they submitted the representation) had opted to accept these recommendations.
5. 1072. The Committee notes that it is not the PRB itself that is at issue in this complaint, but rather the amendment made in 2003 which recommended that it no longer be possible to dispute the recommendations while at the same time accepting and benefiting from them. The Committee also observers that the possibility to bring disputes over the recommendations of the PRB on salaries and allowances before the Civil Service Arbitration Tribunal persists, as long as public officers have opted not to accept the PRB recommendations. In these circumstances, the Committee does not consider that the change in practice introduced in 2003 constitutes a violation of freedom of association principles.