Rapport définitif - Rapport No. 376, Octobre 2015

1. 751. The complaint is contained in a communication dated 16 June 2014 from the Fédération des Travailleurs Unis (FTU).
2. 752. The Government transmitted its observations in a communication dated 8 July 2015.
3. 753. Mauritius has ratified both 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 allegations

1. 754. The complainant organization indicates that Crystal Beach Hotel (hereinafter the hotel), located in the east coast region of Mauritius, has a workforce of 193 employees of manual grade. The hotel is under the administration of Maritim Mauritius Ltd. As background information to the complaint, the FTU indicates that Mr Pardip Pursun, the HR manager of the hotel, was dismissed on 15 December 2013 for regular use of abusive language towards workers, particularly female workers, only to be reinstated in his position on 28 January 2014 for reasons unknown to employees. On the same day of 28 January, the CEO and the general manager of the hotel resigned in protest of the decision of the company to reinstate Mr Pursun.
2. 755. According to the complainant, in these circumstances, all workers decided to organize themselves by joining the Organization of Hotel, Private Club and Catering Workers Unity (OHPCCWU) which is affiliated to the FTU. The HR manager reacted to the decision of workers to organize themselves with harassment and verbal abuse. On 9 February 2014, the employees addressed a letter to the Prime Minister, the Minister of Labour, Industrial Relations, Employment and Training and the Minister of Gender Equality, Child Development and Family Welfare to complain about the HR manager’s harassment and maltreating of housekeeping employees of the hotel. The letter indicated that during a briefing on 5 February, the HR manager called the employees thieves, illiterate, lazy and cheap people and told them they did not have any alternatives as he could sack them all at any time as he did with the CEO and the general manager. The letter further stated that the employees had reported the incident to the Belle-Mare police station. The FTU also addressed a letter dated 13 February 2013 to the Minister of Labour in which it reported that on 12 February a floor supervisor was summarily dismissed without any justification. The letter indicated that while handing him his letter of dismissal, the HR manager told the dismissed worker that others might follow him. The complainant alleges that the Ministry ignored this communication.
3. 756. The complainant indicates that the situation got worse after the OHPCCWU addressed an application for recognition to the management (a copy of which was attached to the complaint) in accordance with section 36 of the Employment Relations Act (2008). In this application, dated 17 February 2014, the trade union informed the employer that more than 50 per cent of employees are members of the trade union and requested recognition in this regard. On 6 March 2014, a group of employees addressed a collective letter to the secretary of the OHPCCWU declaring that as members of the trade union they informed him that the HR manager was intimidating them in order to make them give up their membership in the OHPCCWU and that, in particular, on 6 March 2014, the assistant HR manager and the Executive Chef circulated forms of resignation from the trade union to put pressure on the union members. The signatories of the letter requested the trade union to take urgent appropriate measures while signifying their determination to remain affiliated.
4. 757. The FTU indicates that as the OHPCCWU’s application for recognition was rejected by the employer, it filed an application for an Order for recognition under section 38(1) of the Employment Relations Act (2008) before the Employment Relations Tribunal (ERT), affirming in the application that it was supported by more than 50 per cent of the workers in the bargaining unit. A copy of the application dated 18 April 2014 is attached to the complaint. The first hearing on the case was scheduled on 6 May 2014. The complainant indicates that, in a meeting in the morning of 6 May, the HR manager stated that the “occupancy rate is not good therefore I shall lay off 50 workers”. On 13 May, the date of the second hearing before the ERT, the same HR manager declared that “in the afternoon after attending the Tribunal I shall take drastic measures particularly against trade union members”. On the same day of 13 May, the OHPCCWU addressed a letter to the Minister of Labour, expressing concern about the abovementioned statements of the HR manager, affirming that this attempt to attack employment is directly linked with the decision of workers to organize themselves and join a trade union. The letter further stated that several complaints against the HR manager had been previously registered at the Belle-Mare police station. The OHPCCWU concluded its communication by requesting the urgent intervention of the Ministry to put an end to the repressive practices of the employer.
5. 758. The complainant further indicates that the HR manager executed his threats of laying off trade union members on the eve of another hearing of the ERT that took place on 21 May 2014. Around 45 workers, including all workplace trade union representatives, were laid off. In the hearing of 21 May, the HR manager was seen in the company of two bouncers.
6. 759. The FTU indicates that the ERT decided to conduct a secret ballot under section 38 of the Employment Relations Act (2008) to determine the representativeness of the OHPCCWU. The secret ballot was scheduled on Thursday, 12 June 2014 at 2.30 p.m. within the company premises. On 4 June, the OHPCCWU requested through the Tribunal to hold a meeting with its members within the premises of the hotel, which request was rejected by the company’s counsel. On 9 June, at around 2.30 p.m., the negotiator and two representatives of the trade union approached the hotel in order to distribute a leaflet, targeting evening and morning shift employees outside working hours. In a few minutes the two bouncers rushed out of the hotel premises and said “this is a private road, you cannot stay there, go back with all your belongings”. They further added that “Mr Pursun says you have no right to come here tomorrow, otherwise he shall cancel the ballot”. The employer called the police to intervene, but the police could not arrest the union representatives as their actions were lawful. Simultaneously and unusually, all the vans that transported the workers on a daily basis were firmly instructed to collect the workers inside the hotel premises after working hours. The vans were released one by one so as to prevent the trade union representatives from meeting the workers. The OHPCCWU reported this incident to the president of the ERT in a letter dated 10 June 2014. The letter further reported that in a formal statement Mr Pursun informed the Belle-Mare police station that hotel security officers would ensure security during the ballot exercise and they did not need police assistance, although the tribunal had initially rejected this stand.
7. 760. The complainant indicates that on 12 June, the day of the ballot, the president, vice-president, all assessors and staff of the ERT were all present. Some 148 workers were on the formal list to participate in the voting. Trade union representatives observed the regular coming and going of the HR manager between the place of ballot and different departments. At 1.15 p.m., the Tribunal decided to call the ballot off before the time scheduled, that is 2.30 p.m. This decision was due to the fact that not a single worker turned up in the conference room to express his/her vote. The complainant alleges that on the hearing of the Tribunal that was held on the following day, the president of the ERT expressed his great concern about the role of Crystal Beach Resort Ltd in these events. The FTU affirms that this result is unique in the history of Mauritius and expresses its belief that the acts of the employer are clear infringements of Conventions Nos 87 and 98 of the ILO.

B. The Government’s reply

1. 761. In its 8 July 2015 communication, the Government conveys the employer’s version of the facts in addition to its own observations. According to the employer, the Crystal Beach Resort & Spa has been operating since October 2012 with a total workforce of 250 employees. In December 2013, the management decided to reduce 20 per cent of its personnel due to the fact that the business operation was being negatively affected by the ongoing decline in revenue owing to substantial downfall in the hotel occupancy. In 2014, the management was compelled to review its business operation and implement severe cost containment and resource optimization policies which entailed the reduction of personnel costs and overheads. Formal notification was made to the Ministry of Labour on 3 March, 7 April and 15 May 2014 regarding the management’s intention to reduce its labour force as a result of the economic and financial crisis and the substantial downfall in the hotel revenue. The reduction of the labour force was therefore not related to the intention of the workers to become trade union members.
2. 762. The employer further indicates that in February 2014, it effectively received an application for recognition from the OHPCCWU. However, it deemed appropriate to reject this application since after inquiry into the matter it was found out that more than 80 per cent of the employees had no intention to join the OHPCCWU or any other union. The hotel communicated this decision to the union on 16 April 2014. The employer adds that following this rejection, the OHPCCWU addressed an application to the ERT for an Order for recognition and the ERT organized and supervised a secret ballot on the premises of the hotel. The employer states that prior to the voting, notices were affixed on boards, and banners were fixed in the vicinity of the hotel and surrounding villages in order to sensitize workers. The OHPCCWU also distributed flyers to the employees. Special arrangements were made by the hotel at the request of the president of the ERT for the provision of a room for ballot taking, and transport was provided to staff that were off duty on that day. The employer indicates that in spite of all these measures, not a single employee voted. On 13 June 2014, the management informed the ERT that it had no objection to the organization of a second voting, but the OHPCCWU withdrew its application, according to the employer out of fear of a second massive defeat.
3. 763. The employer further indicates that in September 2014, the OHPCCWU lodged a new application for recognition before the ERT, only to withdraw it on 7 October, due to some technical issues. The management did not object to this withdrawal. On 5 November, the OHPCCWU applied anew to the management for recognition, claiming that more than 30 per cent of the workers were its affiliates. This correspondence was copied to the Ministry of Labour, Industrial Relations, Employment and Training (MLIRET) which enquired into the matter. On 1 December, the management informed the union of its rejection of the application for recognition. The employer emphasized that on several occasions, officers of the Ministry of Labour investigated the complaints made by the negotiator of the union and in the course of those investigations they also met with workers on the premises of the hotel.
4. 764. The Government provides background information according to which enforcement officers of the Ministry of Labour carried out routine inspections at the hotel in May 2013, in the course of which they also met with workers. The inspections showed that good industrial relations prevailed. With regard to the conflict within management which allegedly compelled the CEO and the general manager to resign, the Government declares that it has no information as the intervention of the Ministry of Labour was not sought with regard to such events and it adds that there is no evidence to substantiate the claim that those resignations could be attributed to the HR manager’s attitude.
5. 765. The Government indicates that an inquiry carried out by officers of the Ministry of Labour revealed that since the end of 2013, the company was undergoing much hardship as a result of low occupancy rate and the subsequent financial problems and it could not respect the statutory time limits for payment of wages to workers. At the same time, the management started to adopt strict measures to manage its employees and ensure adherence to its internal rules and regulations, which meant that workers suspected of misconduct had to face disciplinary action. However, the management complied with labour legislation as regards payment of dues to workers.
6. 766. The Government further indicates that on 13 February 2014, an inquiry was carried out following a stoppage of work in protest against the dismissal of a worker. The worker was reinstated upon the intervention of the Ministry.
7. 767. As regards the issue of recognition, the Government indicates that on 17 February 2014, the union made a first application to the Tribunal for an order directing the employer to recognize the trade union. The employer refused to grant recognition as it contended that the union did not have the support “of not less than 30 per cent of workers in the bargaining unit” as prescribed in section 37 of the Employment Relations Act.
8. 768. The Government states that on 20 May a new routine inspection was carried out with a view to investigating the claims of an anonymous letter, dated 9 February 2014, that denounced cases of harassment by the HR manager, and also with a view to conduct an inquiry into the termination of employment of 53 workers on economic grounds on 16, 19 and 20 May. Workers were met individually. They made no complaint and denied having ever been ill-treated or harassed by the HR manager, but they contended that management was very strict regarding discipline. The HR manager was warned that harassment constitutes an offence under section 54 of the Employment Rights Act. All the 53 workers whose employment was terminated in May 2014 reported to the Ministry of Labour and opted to join the Workfare Programme under Part IX of the Employment Rights Act. They did not challenge the declared grounds for the termination nor did they complain that they were dismissed because of unionization.
9. 769. Further on the issue of recognition, the Government indicates that on 12 June 2014, the ERT organized and supervised a secret ballot at the premises of the hotel under section 38(2)(b) of the Employment Relations Act. However, no employee turned up to vote and as the trade union had not produced evidence that it was eligible for recognition, the Tribunal set aside the application.
10. 770. The Government indicates that, on 8 August 2014, the Ministry conducted another inquiry upon receipt of new complaints made by workers referring to acts of harassment on the part of the HR manager. Workers met, admitted that they had signed the letter of 9 February, but asserted that they had done so against their free will and recanted the allegations according to which the HR management had committed acts of harassment. The officers of the Ministry recorded their collective statement to that effect. No other complaint regarding the attitude of the HR manager or any other hotel employee was registered at the Ministry of Labour. Besides, a ministerial inquiry into allegations of the abovementioned letter dated 9 February revealed that no complaint was registered at the Belle-Mare police station. In fact, the workers of the housekeeping section of the hotel had just given a statement as a precautionary measure against the HR manager.
11. 771. The Government indicates that, in September 2014, the union presented a second recognition application to the ERT, only to withdraw it on 7 October for technical reasons. Subsequently on 5 November, the union submitted a new application for recognition to the management of the hotel. On 1 December, the employer turned down this application, contending that the union did not have the support of “not less than 30 per cent of the workers in the bargaining unit” as prescribed by law.
12. 772. The Government informs the Committee that, on 27 January 2015, officers of the conciliation and mediation section of the Ministry of Labour conducted an inspection as to the state of industrial relations at the hotel during which the workers met did not voice any complaint. Finally, the Government indicates that, on 8 May 2015, the union negotiator informed an official of the Ministry of Labour over the phone that he did not wish to proceed further with the matter as he did not have the support of the workers concerned.

C. The Committee’s conclusions

1. 773. The Committee notes that this case concerns alleged acts of intimidation and anti-union discrimination aiming at forcing affiliated workers to withdraw from the trade union of their choice and alleged acts of obstruction, preventing the union representatives from meeting with affiliates within the enterprise to distribute electoral material prior to the vote held to determine the representativeness of the trade union.
2. 774. The Committee notes the complainant’s allegation that workers of manual grade at the hotel decided to organize by joining the OHPCCWU after an HR manager, who was dismissed on 15 December 2013 for regular use of abusive language against workers, particularly female workers, was reinstated on the 28th of the same month, provoking the immediate resignation of the CEO and general manager of the hotel. The Committee also notes the Government’s statement in this regard, that it has no information on such events, as the intervention of the Ministry of Labour has not been sought. The Government further indicates the absence of any evidence supporting the claim that the abovementioned resignations were due to the HR manager’s attitude.
3. 775. The Committee notes that the complainant, the employer and the Government concur on the fact that, on 17 February 2014, the OHPCCWU addressed an application for recognition to the employer asserting that it represented more than 50 per cent of the employees. The Committee further notes that the employer rejected this application on 16 April 2014, allegedly after an inquiry showed that more than 80 per cent of the employees had no intention of joining the OHPCCWU or any other trade union. On 18 April, the union applied to the ERT for an Order of recognition in accordance with section 38(1) of the Employment Relations Act (2008), once again affirming in its application that it represented more than 50 per cent of the workers in the bargaining unit. Hearings before the Tribunal took place on 6, 13 and 21 May. The ERT decided to organize a secret ballot on the premises of the hotel in order to determine the representativeness of the trade union in accordance with section 38 of the Employment Relations Act. The voting was scheduled for 12 June 2014.
4. 776. The Committee notes that the complainant alleges the occurrence of acts of harassment and verbal abuse in reaction to the workers’ intention to organize already before 17 February 2014, the date of the application for recognition addressed to the employer, but that, according to the complainant, these acts intensified significantly after this date, with recourse to threats and acts of intimidation including dismissal of the OHPCCWU workplace representatives while the procedure before the ERT was ongoing.
5. 777. The Committee notes that the earliest acts of harassment referred to in the complaint, date back to 5 February 2014, when it is alleged that the HR manager verbally abused the workers during a briefing and stated that he could sack them all. This incident was reported in letters dated 9 February to the authorities including the MLIRET. The Government confirms that an anonymous letter dated 9 February 2014 containing claims of harassment by the HR manager was sent to the authorities and indicates that an inquiry into those claims was conducted during a routine inspection carried out on 20 May 2014. Workers met with individually denied having ever been ill-treated or harassed by the HR manager. The Government indicates that on this occasion the HR manager was warned that harassment constituted an offence under the Employment Rights Act. The Committee also notes the Government’s indication that during another MLIRET inquiry conducted on 8 August 2014, workers met with stated that they signed the letter of 9 February against their free will and denied allegations of harassment made against the HR manager and that a ministerial allegation into the claims of the letter revealed that no complaint was registered at the Belle-Mare police station.
6. 778. The Committee further notes the complainant’s allegation that in another incident, a worker was summarily dismissed on 12 February without any justification, and that the HR manager allegedly told the dismissed worker that others might follow him. The incident was reported to the MLIRET in a letter dated 13 February, which the complainant alleges was ignored by the authorities. The Committee notes, however, the Government’s contrary indication that on 13 February an inquiry was conducted following a stoppage of work in protest of the dismissal of a worker, and that the worker was reinstated upon the intervention of the MLIRET.
7. 779. With regard to acts of intimidation and threats occurring after 17 February 2014, the Committee notes the complainant’s allegation that on 6 March 2014, a number of affiliated workers addressed a letter to the secretary of the OHPCCWU reporting acts of intimidation aiming at forcing them to give up their trade union membership, and particularly mentioning that forms of resignation from the union were circulated among workers. The Committee notes, however, that although the signatory workers requested the trade union to take urgent appropriate measures, no information was provided by the complainant as to any actions taken to complain to the authorities.
8. 780. The Committee notes the complainant’s allegation that on 6 May 2014, the day of the first hearing before the ERT, the HR manager declared that since the occupancy rate was not good, he would lay off 50 workers; and on 13 May, the date of the second hearing before the Tribunal, he allegedly declared in the afternoon after attending the Tribunal, that he would take drastic measures, “particularly against trade union members”. The complainant indicates that on 13 May, the OHPCCWU immediately informed the MLIRET by letter of the threat of dismissal against trade union members and requested the urgent intervention of the Ministry in this regard. According to the complainant, the threats of dismissal were executed on 20 May, when around 45 workers, including all workplace trade union representatives, were laid off. The Committee notes the Government’s indication according to which on 20 May, in the framework of a routine inspection, an inquiry was conducted into the termination of employment on 16, 19 and 20 May of 53 workers on economic grounds. The Government states that the workers, who were met individually, made no complaint. The dismissed workers did not challenge the declared grounds for the termination nor did they complain that they were dismissed because of unionization and opted to join the Workfare Programme under Part IX of the Employment Rights Act.
9. 781. With regard to the dismissals, the Committee also notes the indication of the employer, transmitted by the Government, according to which already in December 2013, the management decided to reduce its personnel by 20 per cent for economic reasons, and in 2014 it was compelled to implement severe cost containment and resource optimization policies which entailed reduction of personnel costs and that formal notification in this regard was made to the Ministry of Labour on 3 March, 7 April and 15 May 2014. The employer emphasizes in this regard that the reduction of the labour force that ensued was therefore unrelated to the intention of the workers to join a trade union. The Committee further notes the Government’s statement to the effect that an inquiry carried out by the officers of the MLIRET revealed that since the end of 2013 the company was undergoing much economic hardship and could not respect the statutory time limits for payment of wages to workers, although the management finally complied with the law as regards payments due to workers. The Government further indicates that simultaneously the management started to implement its internal rules and regulations strictly, which meant that workers suspected of misconduct had to face disciplinary action.
10. 782. The Committee notes that, according to the complainant, the HR manager first clearly expressed his intention of particularly targeting trade union members in the upcoming dismissals, which were basically due to economic necessity; and then put these words into action, by dismissing all workplace trade union representatives on the eve of an ERT hearing, all these events taking place in the context of a dispute concerning the recognition of the trade union by the employer. However, the Committee understands from the indications of the Government that the dismissed workers did not challenge the declared – economic – grounds for their termination and instead opted to join the Workfare Programme under the Employment Rights Act that gives right to a transitional unemployment benefit and assistance in job placement, retraining or starting a small business.
11. 783. The Committee recalls that it can examine allegations concerning economic rationalization programmes and restructuring processes, whether or not they imply redundancies or the transfer of enterprises or services from the public to the private sector, only in so far as they might have given rise to acts of discrimination or interference against trade unions [see Digest of decisions and principles of the Freedom of Association Committee, fifth (revised) edition, 2006, para. 1079]. The Committee observes that especially at the initial stages of unionization in a workplace, dismissal of trade union representatives might fatally compromise incipient attempts at exercising the right to organize, as it not only deprives the workers of their representatives, but also has an intimidating effect on other workers who could have envisaged assuming trade union functions or simply join the union. The Committee also recalls that no person should be dismissed or 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, op. cit., para. 771]. In this particular case, however, the Committee notes that the Government has promptly conducted an inquiry into the termination of employment of the workers, that the dismissed workers have been met with individually, and that they have not challenged the declared grounds for their dismissal and, consequently, have not sought reinstatement or compensation. In these circumstances, the Committee does not have sufficient elements at its disposal to determine that these dismissals were of an anti-union nature.
12. 784. With regard to the issue of recognition, the Committee notes that according to the concurring indications of the complainant, the employer and the Government, the ERT decided to conduct a secret ballot to determine the representativeness of the OHPCCWU. The vote was organized and supervised by the ERT within the premises of the hotel on 12 June 2014. The Committee notes that the complainant alleges that trade union representatives were not able to inform the workers of their rights with regard to the elections as the employer refused to grant them access to the workplace and took measures to prevent them from approaching the workers on the eve of the elections. The Committee also notes the employer’s assertion that notices and banners were affixed in the hotel and in surrounding villages and the trade union distributed flyers among workers. The employer also indicates that at the request of the president of the ERT it provided a room for ballot taking and means of transportation for the staff that were off-duty on the day of the vote. However, parties concur on the fact that not a single worker turned up to vote. The Committee notes that according to the minutes of the ERT session held on 13 June that are appended to the complaint, the Tribunal expressed concern about the fact that no one had turned up to vote and invited the employer to reconsider certain issues and attitude towards the workers, including access of the trade union leader to the workplace. The Committee notes that according to the same minutes, the trade union withdrew its application before the ERT, the employer did not object to this withdrawal and the Tribunal set aside the application while affirming that the union can make a fresh application as and when they wish in accordance with the law.
13. 785. As regards the question of access to the enterprise, the Committee recalls that governments should guarantee the access of trade union representatives to workplaces, with due respect for the rights of property and management, so that trade unions can communicate with workers in order to apprise them of the potential advantages of unionization [see Digest, op. cit., para. 1103] and expects that the Government will ensure respect for this principle. Further on the issue of recognition, the Committee notes the concurring indications of the Government and the employer according to which in September 2014 the trade union lodged a new application for an Order of recognition before the ERT, only to withdraw it on 7 October for technical reasons. The Government and the employer indicate that, on 5 November, the union addressed its second application for recognition to the employer, who rejected it on 1 December on the grounds that the trade union did not enjoy the support of at least 30 per cent of the workers as required by law. Finally the Committee notes the Government’s indication that on 8 May 2015 the negotiator of the OHPCCWU informed the MLIRET that he did not wish to proceed further, as he did not have the support of the workers concerned. While certain acts of the employer have given rise to concerns by the Tribunal as regards the climate in which the union was able to carry out its activities, in view of the investigations carried out by the Government and the efforts to organize a secret ballot, as well as the complainant’s own withdrawal of its case before the ERT and the ultimate decision not to pursue representation of the workers at the hotel, the Committee considers that it does not have sufficient elements available to it to determine that the Government has failed in its duty to ensure respect for the workers’ freedom of association in this case.