Rapport où le comité demande à être informé de l’évolution de la situation - Rapport No. 374, Mars 2015

1. 562. The complaint is contained in a communication dated 5 December 2013 from the Federation of United Workers (FTU).
2. 563. The Government sent its observations in a communication dated 2 April 2014.
3. 564. Mauritius has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant’s allegation

1. 565. In a communication dated 5 December 2013, the FTU indicates that Innodis Ltd is a private company dealing in the distribution of dry and frozen goods. Workers of Innodis Ltd (hereinafter the company) are either member of the Farm Workers’ Union (FWU) or of the Cold Storage Workers’ Union (CSWU) respectively, which are both affiliated to the FTU. These two trade unions have been recognized by the company for more than 20 years.
2. 566. The FTU states that, since 1993, each employee of the company is eligible for a performance bonus, paid on a yearly basis around October/November. In the context of the renewal of the collective agreement, a trade dispute between the two trade unions and the company was examined by the Commission for Conciliation and Mediation (CCM). The dispute involved the following points: whether the performance bonus paid to each employee in the years 2011 and 2012 respectively should represent one month basic salary or otherwise; and whether each employee be paid a salary increase of 15 per cent effective as from October 2012 exclusive of statutory increase. On 6 November 2013, a lawful protest was held by the officers of the trade unions, with the support of the FTU, in front of the Office of the Ministry of Labour, Industrial Relations and Employment, demanding its urgent intervention for the payment of the bonus.
3. 567. According to the FTU, on 12 November 2013, a meeting was held before the Commission to discuss the dispute but, to the surprise of everybody, the management of the company came along with a motion to revoke the negotiator for the FWU and CSWU on the basis that he participated in the protest of 6 November 2013. However, the Commission denied the company’s motion. As the company was not satisfied, on the next day, 13 November 2013, the negotiator was revoked through a letter from management with immediate effect and was not allowed on the company’s premises. Furthermore, the two presidents and executive members of both trade unions were convened by the management to appear before a disciplinary committee to answer for the protest they held.
4. 568. The complainant underlines that all the workers (11 demonstrators) who participated in the protest were on approved annual leave, except the negotiator. The Ministry of Labour and Industrial Relations convened the FWU, the CSWU and the company to a meeting on 27 November 2013; however, the company refused to attend the meeting.
5. 569. The complainant cites the following provisions of the law that would apply in this case:
   • – section 29(1)(c) of the Employment Relations Act (ERA) (Act No. 32 of 2008): “Every worker shall have the right … to take part, outside working hours or with consent of the employer within working hours, in the lawful activities of a trade union of which he is a member”;
   • – section 14(2) of the ERA: “No person shall act as negotiator of a trade union unless he has been appointed by the managing committee of the trade union; or an officer unless he is qualified …”;
   • – section 30 of the ERA: “No person shall interfere with the establishment, functioning or administration of a trade union of workers”;
   • – section 54(1) of the ERA: “No party shall have recourse to any form of unfair labour practice during collective bargaining”; and
   • – section 38(1) of the Employment Rights Act (Act No. 33 of 2008): “An agreement shall not be terminated by an employer by reason of a worker becoming or being member of a trade union seeking or holding of trade union office or participating in trade union activities outside working hours or with the consent of the employer within working hours”.
6. 570. Finally, the complainant alleges that managers of the company are forcing trade union members to withdraw from the FWU. The matter has already been referred to the Commissioner of Police.

B. The Government’s reply

1. 571. The Government sent its observations in a communication dated 2 April 2014. It acknowledges that, on 8 and 26 August 2013 respectively, the FWU and the CSWU reported a labour dispute on the same issues against the company to the CCM on the following terms: (i) whether performance bonus paid to each employee in the year 2011 and 2012 respectively should represent one month basic salary or otherwise; and (ii) whether each employee be paid a salary increase of 15 per cent effective as from October 2012 exclusive of statutory increase. The FWU and the CSWU appointed Mr Atma Shanto as their negotiator by virtue of section 14 of the ERA.
2. 572. While the dispute was being discussed at the level of the CCM, Mr Shanto and the executive members of the two trade unions held a lawful protest on 6 November 2013 in front of the office of the Ministry of Labour, Industrial Relations and Employment demanding the urgent intervention of the Ministry on the points in dispute.
3. 573. Following the protest, the company informed Mr Shanto in a letter dated 12 November 2013 that he would henceforth not be recognized as negotiator because of, inter alia, breaches of the Procedural Agreement in force between the trade unions and the company as well as the defamatory statements he made against the company during the protest (letter appended). On the same date, the company informed the CCM of its decision not to recognize Mr Shanto as the trade unions’ negotiator.
4. 574. However, according to the Government, following meetings held at the CCM and several concessions made by the company, an agreement was reached on 30 December 2013 between the company and both trade unions to the effect that the company would pay a performance bonus of 38 per cent of two months basic salary and a salary increase of 5 per cent spread over two years to the workers (copies of the agreements appended).
5. 575. Furthermore, in line with section 40 of the ERA regarding access to work premises, the FWU made an application to the Employment Relations Tribunal requesting a decision granting access to the company’s premises to Mr Shanto. The FWU later withdrew its application on the understanding that the agreement which was proposed at the Employment Relations Tribunal would be signed by the Chief Executive Officer following his return from abroad. However, given that the terms of agreement subsequently proposed by the company to Mr Shanto were different from those proposed at the level of the Tribunal, the latter refused to sign and went on a hunger strike as from 12 March 2014 to protest against the stand of the company. The Minister of Labour, Industrial Relations and Employment thereupon personally intervened in the matter and convened all parties to a meeting on 15 March 2014 and an agreement was reached and signed to the satisfaction of all parties (copy appended) to the effect that, inter alia: (i) Mr Shanto will be granted access to the premises of the company as the negotiator for the FWU and the CSWU; (ii) the two trade unions and their negotiator expressed their deep regrets concerning any prejudice that might have been caused by their public demonstration staged on 6 November 2013 against the company; and (iii) both the company and the trade unions undertake to comply with the provisions of the ERA and adhere to the provisions of the code of practice laid down therein. Mr Shanto thereafter put an end to his hunger strike.
6. 576. The Government also provided some clarification made by the company on the present case. The company denies having made a motion before the CCM to revoke Mr Shanto as the negotiator of the matter. It only informed the CCM of its decision not to recognize Mr Shanto as the unions’ negotiator and did not request any ruling on the matter from the Commission. The company also declares that the protest of 6 November 2013 is in clear breach of the Procedural Agreement between the parties which stipulates that there should be no communication with the media as long as discussions between parties are in progress. The company also indicated that, with a view to an amicable settlement of the matter, a draft agreement was submitted to the trade unions and Mr Shanto, wherein the company declared being prepared to reconsider its decision and recognize Mr Shanto once again as negotiator on the condition that he tender his apologies to the company and to its Chief Executive Officer for his wrongful allegations. The agreement was however rejected by the trade unions. Finally, the company denied having exerted any form of pressure on any employee to withdraw from the trade unions and contended that employees have expressed their wish to dissociate themselves from the trade union as they are dissatisfied with its acts, but are afraid to voice their concerns.
7. 577. The Government also provided a report from the police department according to which a statement was given on March 2014 by Mr Louis David Collard, President of the FWU, to the effect that many workers had informed him that they were being intimidated by management to withdraw from the trade union. Management representatives, namely, Mr Goinsamy Moorgiah (human resource manager), Mr Mohammed Massoorula Joumun (foreman), and Mrs Vaneesha Vishnee Busawon (processor plant manager), were contacted by the police and made aware of the above complaint. They denied the allegation levelled against them. Two other workers at the company, Mr Nagamootoo Goinden and Mr Hemraz Lobine, both members of the FWU, stated for their part that they had never been intimidated by the management to withdraw from the trade union. The police inquiry is still under way.
8. 578. The Government concludes that the only live issue which remains to be addressed in the complaint is the alleged intimidation of workers to withdraw from their trade union, which matter is still under police inquiry.

C. The Committee’s conclusions

1. 579. The Committee observes that in this case the complainant alleges acts of anti-union discrimination by the company against leaders and members of the FWU and the CSWU in retaliation for a lawful protest action conducted in November 2013 to claim the payment of bonuses.
2. 580. From the information provided both by the complainant and the Government, the Committee observes that in August 2013, the FWU and the CSWU reported a labour dispute to the CCM against the company on the payment of performance bonuses. Both trade unions appointed a negotiator (Mr Atmar Shanto) by virtue of section 14 of the ERA. While the dispute was being discussed at the level of the CCM, Mr Shanto and the executive members of the two trade unions held a lawful protest on 6 November 2013 in front of the office of the Ministry of Labour, Industrial Relations and Employment demanding the urgent intervention of the Ministry on the points in dispute. Following the protest, the company informed Mr Shanto in a letter dated 12 November 2013 that he would henceforth not be recognized as negotiator because of breaches of the Procedural Agreement in force between the trade unions and the company which stipulates that there should be no communication with the media as long as discussions between parties are in progress, as well as the defamatory statements he made against the company during the protest. On the same date, the company informed the CCM of its decision not to recognize Mr Shanto as the trade unions’ negotiator. However, following several meetings held at the CCM, an agreement was reached on 30 December 2013 between the company and both trade unions to the effect that the company would pay a performance bonus of 38 per cent of two months basic salary and a salary increase of 5 per cent spread over two years to the workers.
3. 581. In the meantime, in line with section 40 of the ERA regarding access to work premises, the FWU made an application to the Employment Relations Tribunal requesting a decision granting access to the company’s premises to Mr Shanto. The FWU later withdrew its application on the understanding that the agreement which was proposed at the Employment Relations Tribunal would be signed by the Chief Executive Officer following his return from abroad. However, given that the terms of agreement subsequently proposed by the company to Mr Shanto were different from those proposed at the level of the Tribunal, the latter refused to sign and went on a hunger strike as from 12 March 2014 to protest against the stand of the company.
4. 582. The Committee further notes that the Minister of Labour, Industrial Relations and Employment personally intervened in the matter and convened all parties to a meeting on 15 March 2014 following which an agreement was signed to the satisfaction of all parties. According to the agreement: (i) Mr Shanto will be granted access to the premises of the company as the negotiator of the FWU and the CSWU; (ii) the two trade unions and their negotiator expressed their deep regrets concerning any prejudice that might have been caused by their public demonstration staged on 6 November 2013 against the company; and (iii) both the company and the trade unions undertake to comply with the provisions of the ERA and adhere to the provisions of the code of practice laid down therein.
5. 583. As a concluding observation, the Committee acknowledges the intervention of the authorities to solve the dispute raised by the FWU and the CSWU by various meetings held at the level of the CCM and by the Ministry of Labour, Industrial Relations and Employment, which resulted in an agreement to the satisfaction of all parties, and which raise expectations for peaceful industrial relations between the company and the trade unions in the future.
6. 584. The Committee further notes that the police department conducted an investigation on the alleged intimidation of workers of the company to withdraw their trade union membership. In this regard, the Committee recalls that no person should be prejudiced in employment by reason of trade union membership or legitimate trade union activities, and it is important to forbid and penalize in practice all acts of anti-union discrimination in respect of employment [See Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition 2006, para. 771]. Any conduct aimed at obtaining the withdrawal of workers from membership of an enterprise trade union would seriously undermine workers’ right to freedom of association.
7. 585. The Committee notes that according to the police report, management representatives denied the allegations levelled against them by the President of the FWU. Additionally, two members of the FWU stated for their part that they had never been intimidated to withdraw from the trade union. The Committee also notes that the Government provided in its reply a statement made by the company whereby, inter alia, it denied having exerted any form of pressure on any employee to withdraw from the trade unions and claimed that employees have expressed their wish to dissociate themselves from the trade union but are afraid to voice their concerns. In its concluding remarks, the Government asserts that the alleged intimidation of workers to withdraw from their trade union is the only live issue which remains to be addressed in the present case and the matter is still under police inquiry. The Committee requests the Government to keep it informed in this regard.